Tuesday, February 25, 2003
Page 1
C.A. Says Shaken Baby May Be Taken Off Life Support
Justice Wishes ‘Peace and Serenity’ to Comatose Infant Whose Father May Face Murder Charge
From Staff and Wire Service Reports
A baby in a vegetative state since allegedly being shaken by his father in late 2001 can be taken off life support, the Fourth District Court of Appeal ruled yesterday.
Div. Three’s ruling allowing withdrawal of all treatment except nutrition, hydration, and pain medication for Christopher Ibarra, who is now 17 months old, could result in a murder charge being filed against his father, Moises Ibarra.
The ruling comes four days after the court heard oral argument. The justices concluded that Orange Superior Court Judge Richard E. Behn, who had previously found that Moises Ibarra shook his infant son and threw him against the railing of his crib, did not abuse his discretion last October when he agreed with the boy’s mother that further life-sustaining efforts would serve no purpose.
“We appreciate the significance of our decision to Christopher, now one and a half years old,” Justice Richard Fybel wrote for the court. “We reach our conclusions with his fate in our minds and our hearts. In making his ruling in the juvenile court, Judge Behn said, ‘I would ask you to keep Christopher in your prayers and thoughts, as I have done for these last three or four months.’ We join in Judge Behn’s sentiments, and wish Christopher peace and serenity.”
First Impression
Fybel acknowledged a lack of California precedent for determining whether to take a dependent child off life support. But cases from California and elsewhere dealing with withdrawal of life-sustaining measures from persons not legally competent to make their own decisions are consistent with Behn’s ruling, the appellate jurist said.
There was, the justice said, “consistent and compelling” testimony that the child was in a persistent vegetative state, was not benefiting from his current treatment, would not improve, and is suffering.
Kathleen Mallinger, appointed by the court to represent Christopher, told the panel last week that the child, who was four months old when his brain stem allegedly was broken on Dec. 17, 2001, is on medication to treat involuntary muscle spasms.
Mallinger said the child also has fractures because his bones demineralized from inactivity, and “just in the gentle changing of diapers ... his hip has become dislocated.”
“These are not going to improve,” she said.
John Dodd, a Tustin lawyer appointed to represent the father, told the justices that additional review of the case is needed.
“We can see no greater risk of harm than the termination of life support that will lead to Christopher’s death,” Dodd argued last week. He also questioned whether the Bureau of Indian Affairs had been given sufficient notice about the child, which is required because the baby’s mother claims some American Indian heritage.
He also said probate court — which deals daily with questions of life and death — not juvenile court, should have had jurisdiction over the child. “I view this as a death penalty case, because that’s what it is,” he said.
No ‘Puma’ Tribe
But Fybel noted that Ibarra admitted having no knowledge of his son’s Indian heritage, which Christopher’s mother said was through the “Puma” or “Pima” tribe. There is no federally recognized Puma tribe, and neither of the two Pima Indian communities claims Christopher as a member or considers him eligible for membership, the justice explained.
Besides, Fybel said, keeping Christopher alive will not serve the interests protected by the federal law. “Christopher will never be able to appreciate his alleged Indian ancestry, nor will he procreate and advance the lineage or culture of any Indian tribe,” the jurist lamented.
The appeal pitted Moises Ibarra against Tamara Sepulveda, who wants life-sustaining efforts for her son to end so he can “go to heaven.” Last September, Sepulveda asked Behn to allow the machines to be disconnected because Christopher had no appreciable life, a conclusion Behn reached in October.
Behn said he agreed with medical testimony that the life support machines were just “keeping the shell of what Christopher was alive.” But he put his own ruling on hold to allow the father’s appeal.
The elder Ibarra is presently charged with felony child abuse and inflicting corporal injury on a child. His trial is set for April 14.
He could get up to 12 years in prison if convicted, but could face a life term if convicted of murder. He is being held on $250,000 bail.
Witnesses said the couple argued in their bedroom before a loud thud was heard. Police said Ibarra came out carrying the limp child and asked a roommate to call 911.
Sepulveda and Ibarra told police the baby was crying, then had trouble breathing. Sepulveda later said Ibarra shook the baby and threw him into his crib, police said. In declaring Christopher a dependent child, Behn found that the father caused the injuries and the mother was unable or unwilling to protect the baby.
Copyright 2003, Metropolitan News Company