Glenn H/sonia H v. Hon hoskins/banner

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

GLENN H. and SONIA H., Petitioners,

v.

THE HONORABLE NICOLAS B. HOSKINS, Commissioner of the
SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County
of MARICOPA; and BANNER CARDON CHILDREN’S MEDICAL
CENTER, Respondents,

CODY H., Real Party in Interest.

No. 1 CA-SA 17-0303
FILED 4-3-2018

Petition for Special Action from the Superior Court in Maricopa County
No. JD34913
The Honorable Nicolas B. Hoskins, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Petitioners

Coppersmith Brockelman PLC, Phoenix
By Andrew S. Gordon, Karen Carter Owens
Counsel for Respondent Banner Cardon Children’s Medical Center
Arizona Law Practice, LLC
By Amie S. Clarke
Guardian Ad Litem for Real Party in Interest

Anthony R. Montoya, Attorney at Law, Glendale
By Anthony R. Montoya
Co-Counsel for Amicus Curiae Watchtower Bible and Tract Society of New
York, Inc.

Keturah A. Dunne, Watchtower Bible and Tract Society of New York, Inc.,
Patterson, New York
By Keturah A. Dunne, Pro Hac Vice
Co-Counsel for Amicus Curiae Watchtower Bible and Tract Society of New
York, Inc.

OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Judge Jon W. Thompson and Judge Randall M. Howe joined.

J O N E S, Judge:

¶1 This special action addresses a single issue: whether the
superior court had subject matter jurisdiction to grant a hospital’s
employees’ oral requests, made via an emergency telephone line, to
authorize medical procedures for a minor patient whose parents did not
consent. Because the hospital did not create an action through the filing of
a complaint, and the court’s conduct was not otherwise statutorily
authorized, we hold the court lacked subject matter jurisdiction to consider
the requests. Accordingly, we accept jurisdiction and vacate the orders
authorizing medical treatment for the non-consenting minor.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2017, Cody H., the fourteen-year-old son of
Petitioners, Glenn and Sonia H., was diagnosed with bone cancer.
Thereafter, Cody sought treatment, including chemotherapy, known to
suppress the production of red blood cells, and surgery at Banner Cardon
Children’s Medical Center (the Hospital). Cody and his parents are
practicing Jehovah’s Witnesses, and objected to the use of blood
transfusions upon religious grounds. The sincerity of Cody’s and

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Opinion of the Court

Petitioners’ religious beliefs is undisputed. Cody’s medical team
developed a treatment plan using alternative therapies designed to avoid
the need for blood transfusions.

¶3 On October 12, 13, and 16, and December 4, 2017, one or more
Hospital employees called the superior court via an “emergency hotline.”
The employees sought orders authorizing blood transfusions over Cody’s
and Petitioners’ objections. Although Petitioners were never given formal
notice of the proceedings and learned of the employees’ first request only
when advised it had been denied, and the second by overhearing
conversations in the Hospital’s corridors, they were present and
represented by counsel at all but the first proceeding. At each stage,
Petitioners argued first that the court lacked jurisdiction to consider the
requests, and second that the Hospital had failed to prove Cody’s medical
condition constituted an emergency warranting a blood transfusion.
Although various medical personnel presented evidence and argument to
support the requests, the Hospital itself did not appear through counsel.1

¶4 In the course of addressing the Hospital’s requests, the court
explained the emergency hotline was the “standard practice in the county”
for these types of requests, and it did not expect the Hospital would be filing
a complaint or dependency petition, “particularly when [Cody] does not
meet the definition of a dependent child.” As far as the record reveals, this
emergency hotline is assigned to Maricopa County Superior Court judges
on a rotating basis and available after business hours. The record does not
reflect when the court established the emergency hotline, the type of relief
generally sought by individuals using the hotline, or how the Hospital
employees became aware of the hotline. It is also not clear from the record
what the prescribed process is for accepting the calls, whether any
restrictions exist on who is authorized to call, or what record is kept of the
contents of the calls. Indeed, it is unclear whether the callers here were
doctors, administrators, or staff, as the identification and credentials of the
caller were apparently not part of the information required to be provided.
However, it is undisputed that the Hospital never filed a complaint or
petition to initiate the proceedings.

1 “A corporation cannot appear in superior court except through
counsel. Until a corporation appears in court by counsel, its appearance is
defective.” State v. Eazy Bail Bonds, 224 Ariz. 227, 229, ¶ 12 (App. 2010)
(citing Ramada Inns, Inc. v. Lane & Bird Advert., Inc., 102 Ariz. 127, 128 (1967),
and then Boydston v. Strole Dev. Co., 193 Ariz. 47, 50, ¶ 12 (1998)).

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¶5 The superior court ultimately granted three of five requests
for authorization to administer blood transfusions. Petitioners filed this
special action in November but did not request a stay of the court’s orders.
Thereafter, the Hospital administered blood transfusions to Cody on
December 1 and 5.

¶6 While the petition for special action was pending, the superior
court appointed an attorney and a guardian ad litem for Cody. At this
Court’s urging, the Hospital entered an appearance and answered the
petition. Additionally, the Watchtower Bible and Tract Society of New
York, Inc. was granted leave to file an amicus brief in support of Petitioners.
The Arizona Attorney General “decline[d] the invitation” to submit an
amicus brief on behalf of the superior court. Shortly thereafter, the Hospital
notified Petitioners that they needed to seek alternative care for Cody. As
of January 2018, Cody was being treated at a facility in Portland, Oregon.

DISCUSSION

I. Special Action Jurisdiction

¶7 Special action jurisdiction is proper when a party has no
“equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec.
Act. 1(a). This Court has discretion to accept special action jurisdiction and
appropriately exercises that discretion in cases “involving a matter of first
impression, statewide significance, or pure questions of law.” State ex rel.
Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8 (App. 2001) (citations omitted).
Special action jurisdiction is also appropriate to prevent the superior court
from acting without jurisdiction. See Caruso v. Superior Court, 100 Ariz. 167,
170 (1966) (citation omitted).

¶8 The Hospital argues the superior court’s orders are moot
because they have expired and Cody is no longer a Hospital patient. While
the Hospital is correct, we may consider moot issues “if there is either an
issue of great public importance or an issue capable of repetition yet
evading review.” Bank of N.Y. Mellon v. De Meo, 227 Ariz. 192, 194, ¶ 8 (App.
2011) (quoting Phx. Newspapers, Inc. v. Molera, 200 Ariz. 457, 460, ¶ 12 (App.
2001), and citing Fraternal Order of Police Lodge 2 v. Phx. Emp. Relations Bd.,
133 Ariz. 126, 127 (1982)); see also Coconino Cty. No. MH 1425, 181 Ariz. 290,
292 (1995) (considering an otherwise moot issue because a decision
addressing a common practice would have “a significant impact on the
mechanics of involuntary commitment hearings”).

¶9 Whether the superior court has jurisdiction to authorize
medical treatment via the emergency hotline presents a matter of first

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impression, of significant statewide importance, and that may be resolved
as a pure question of law. Moreover, because of the emergency nature of
the hotline, the issue is likely to evade review in future cases. Accordingly,
we accept special action jurisdiction.

II. Subject Matter Jurisdiction

¶10 “On every writ of error or appeal the first and fundamental
question is that of jurisdiction.” Mansfield, C. & L. M. Ry. v. Swan, 111 U.S.
379, 382 (1884). Here, the superior court identified Arizona Revised
Statutes (A.R.S.) § 8-245(A)2 as the source of its jurisdiction. That section
states:

When a child under the jurisdiction of the juvenile court
appears to be in need of medical or surgical care, the juvenile
court may order the parent, guardian or custodian to provide
treatment for the child in a hospital or otherwise.

This provision does not confer jurisdiction but instead permits the court to
order medical treatment only when a child is already under the jurisdiction
of the court.3

2 Absent material changes from the relevant date, we cite a statute’s
current version.

3 Notably, the superior court’s orders do not order Petitioners to
obtain, nor the Hospital to provide, treatment as contemplated within
A.R.S. § 8-245(A). Instead, the orders provide a contingent authorization
for the use of blood transfusions. For example, the November 14 order
states:

IT IS ORDERED that if [Cody’s surgeon], or [an]other
appropriate treating physician at [the Hospital], concludes
during the Surgery that there exists a medical emergency
necessitating the use of a blood transfusion to avoid serious
injury or death, [Cody’s surgeon] and the treatment team . . .
are authorized to provide such transfusions as appear
medically necessary for Cody. This Order is not intended to
authorize transfusion treatment solely to alleviate Cody’s
discomfort over Cody’s objection.

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¶11 Subject matter jurisdiction attaches to the superior court when
a complaint or petition is filed. McCulloch v. W. Land & Cattle Co., 27 Ariz.
154, 156 (1924); see also Bryant v. Bloch Cos., 166 Ariz. 46, 48 (App. 1990); Ariz.
R. Civ. P. 3 (“A civil action is commenced by filing a complaint with the
court.”). Moreover, complaints or petitions that fail to comply with rules of
civil procedure or other statutory requirements do not confer jurisdiction
on the court. See Pima Cty. Juv. Action Nos. B-8272 and J-65774, 126 Ariz. 374,
375 (1980) (citing Pima Cty. Juv. Action No. J-46735, 25 Ariz. App. 424, 426
(1976)). No complaint or petition was filed in this case.

¶12 We are aware of only two exceptions to this general rule,
whereby the legislature has authorized oral, ex parte requests for relief:
telephonic search warrants and emergency orders of protection. See A.R.S.
§§ 13-3914(C), -3915(A) (authorizing a court to issue a search warrant after
an officer makes a recorded, sworn statement via telephone); 13-3624(A)
(authorizing judges to issue emergency orders of protection by telephone).
Both telephonic search warrants and emergency orders of protection,
however, are regulated by statutes and rules of procedure that protect the
due process rights of opposing parties and ensure the orderly
administration of justice. See generally A.R.S. § 13-3911 to -3925 (regulating
the procurement, execution, and return of search warrants); Ariz. R.
Protective Order P. 24 (regulating the issuance, scope, and service of
emergency protective orders). Our review of Arizona statutes and rules of
procedure reveals no provision either authorizing the superior court to
maintain an emergency hotline for the purpose of ordering medical

Similar language providing a contingent authorization appears in the
October 13 and December 4 orders. Moreover, the efficacy of these orders
is unclear given that A.R.S. § 36-2271 already permits a healthcare provider
“to save the life of the [minor] patient,” notwithstanding the parent’s
consent, when a physician determines that “an emergency exists and that it
is necessary to perform such surgical procedures.”

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treatment for a non-consenting minor,4 or guaranteeing the participation or
protection of the persons likely to be affected by such an order.5

¶13 However well-intended the emergency hotline may be, the
superior court lacks subject matter jurisdiction to entertain ex parte oral
requests in the absence of specific statutory authorization. See Redewill v.
Superior Court, 43 Ariz. 68, 81 (1934) (“A court cannot do something not
authorized by law, because it may think it is ‘just as good,’ or even better
than the thing which the law does sanction.”); see also San Joaquin Cty.
Human Servs. Agency v. Marcus W., 110 Cal. Rptr. 3d 232, 240 (Ct. App. 2010)
(reversing a court order compelling a minor to undergo periodic blood
transfusions obtained through an analogous process, finding that
“although well intended, the ‘system’ created in San Joaquin County does
not comply with the statutory scheme and results in a juvenile court acting
without subject matter jurisdiction”). Therefore, the court’s orders
authorizing treatment are void.

4 Although not raised by Petitioners, we note that the ex parte nature
of the emergency hotline may run afoul of the Arizona Code of Judicial
Conduct, which prohibits judges from permitting or considering an ex parte
communication unless, among other narrow exceptions, “expressly
authorized by law to do so.” See Ariz. R. Sup. Ct. 81, Canon 2.9(A).

5 Petitioners also argue the procedures associated with the emergency
hotline violate their due process rights. Although the trajectory of this case
raises substantial concerns, we need not address the due process arguments
given the absence of subject matter jurisdiction. See infra ¶ 13.

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CONCLUSION

¶14 The superior court lacked jurisdiction to grant ex parte oral
requests, made via the emergency hotline, for authorization to perform
medical procedures without the consent of a minor patient or his parents.
No written complaint or petition supports the requests, and the procedure,
while entertained by the court, is not specifically authorized by statute or
rule. Accordingly, the court’s orders are void.

AMY M. WOOD • Clerk of the Court
FILED: AA

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