# Appendix — Nixon et ux. v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1008

## Text

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APPENDIX A — OPINION OF THE SUPREME
COURT OF PENNSYLVANIA DATED AND
DECIDED NOVEMBER 27, 2000
SUPREME COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

Appellee,
v.
DENNIS E. NIXON,

Appellant.

COMMONWEALTH OF PENNSYLVANIA,

Appellee,
v.
LORIE A. NIXON,
Appellant.

Argued March 7, 2000.
Decided Nov. 27, 2000.

x* *

Before FLAHERTY, C.J., and ZAPPALA, CAPPY,
CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

2a

Appendix A
OPINION

ZAPPALA, Justice.

We granted allocatur for this Court to consider two
issues. First, we consider whether to adopt a “mature minor
doctrine” which would be an affirmative defense to the
parental duty to provide care to a minor. Secondly, we
consider whether Shannon Nixon had a right to refuse
medical care pursuant to her privacy rights under the
constitutions of the United States and this Commonwealth.
For the reasons that follow, we choose not to adopt a “mature
minor doctrine” as a criminal defense and further, we find
that Shannon Nixon’s constitutional right to privacy did not
relieve her parents from fulfilling their statutory obligations.
Therefore, we affirm the order of the Superior Court, which,
in turn, affirmed the order and judgment of sentence of the
Court of Common Pleas of Blair County.

This case arose from the following facts. Dennis and
Lorie Nixon, Appellants, were the parents of the victim,
Shannon Nixon. Shannon Nixon was sixteen years old at
the time of her death. In mid-June 1997, it became obvious
to Appellants that Shannon was not feeling well. Appellants
began to pray for their daughter’s health. They also took her
to their place of worship where Shannon was “anointed”!
Shannon initially reported feeling somewhat better, but then
her condition deteriorated. She became increasingly weak

1. Appellants and their children were members of the Faith
Tabernacle Church, a religion in which illnesses are addressed
through spiritual treatment rather than by medicine.

3a

Appendix A

and fell into a coma. After a few hours in a comatose state,
Shannon Nixon died. An autopsy determined that Shannon
died from diabetes acidosis, which was a treatable, though
not curable, condition.

Appellants were convicted of involuntary manslaughter,
18 Pa.C.S. § 2504, and also of endangering the welfare of a
child under 18 Pa.C.S. § 4304. These statutes respectively
state:

Involuntary manslaughter

(a) General rule. — A person is guilty of
involuntary manslaughter when as a direct result
of the doing of an unlawful act in a reckless or
grossly negligent manner, or the doing of a lawful
act in a reckless or grossly negligent manner, he
causes the death of another person.

Endangering welfare of children

(a) Offense defined. — A parent, guardian, or
other person supervising the welfare of a child
under 18 years of age commits an offense if he
knowingly endangers the welfare of the child by
violating a duty of care, protection or support.

Appellants’ first argument is that we should adopt a
“mature minor doctrine” and allow Appellants to assert such
doctrine as an affirmative defense to the endangering welfare
of children charge. If the affirmative duty created by
18 Pa.C.S. § 4304 was removed from Appellants, then it

4a

Appendix A

follows that the involuntary manslaughter conviction would
also fall. This is because the Commonwealth used § 4304 to

show an unlawful act, one of the alternative prerequisites to
§ 2504.

By placing an affirmative duty upon parents and
guardians, the legislature has acted to partially fulfill the
Commonwealth’s duty to care for those individuals who for
one reason or another are legally incapacitated. This duty to
care for those who are legally incapacitated arose under the
sovereign’s duty of parens patriae, and following
independence was assumed by the individual states.
See Commonwealth v. Baldwin, 54 Watts 1 (Pa.1832). By
mandating primary responsibility for the child’s wellbeing
upon the parents, the legislature has not only acted toward
fulfilling its role as parens patriae, but also has recognized
that parents have a duty to provide for their children which
accompanies the right to raise children with minimal state
encroachment. As the United States Supreme Court stated:

It is cardinal with us that the custody, care and
nurture of the child reside first in the parents,
whose primary function and freedom include
preparation for obligations the state can neither
supply nor hinder. And it is in recognition of this
that these decisions have respected the private
realm of family life which the state cannot enter.
But the family itself is not beyond regulation in
the public interest, as against a claim or religious
liberty. And neither rights of religion nor rights
of parenthood are beyond limitation. Acting to
guard the general interest in youth’s well being,

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Appendix A

the state as parens patriae may restrict the parent’s
control by requiring school attendance, regulating
or prohibiting the child’s labor, and in many other
ways. Its authority is not nullified merely because
the parent grounds his claim to control the child’s
course of conduct on religion or conscience. Thus,
he cannot claim freedom from compulsory
vaccination for the child more than for himself
on religious grounds. The right to practice religion
freely does not include liberty to expose the
community or the child to communicable disease
or the latter ill health or death.

Prince v. Commonwealth of Massachusetts, 321 U.S. 158,
166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (citations and
footnotes omitted).

The Appellants argue that their daughter was mature
enough to make her own decisions regarding health care and
religion, and therefore ask us to create an exception to their
obligation on the basis of their daughter’s maturity. In
defining the mature minor doctrine, Appellants refer us to a
decision from our sister state of Tennessee which stated:

Whether a minor has the capacity to consent to
medical treatment depends upon age, ability,
experience, education, training and degree of
maturity or judgment obtained by the minor or,
as well as upon the conduct and demeanor of the
minor at the time of the incident involved.
Moreover, the totality of the circumstances, the
nature of the treatment and its risks and probable

6a
Appendix A

consequences, and the minor’s ability to
appreciate the risk and consequences are to be
considered.

Cardwell v. Bechtol, 724 S.W.2d 739, 748 (Tenn.1987).
See also Belcher v. Charleston Area Medical Center, 188
W.Va. 105, 422 S.E.2d 827 (1992), and In re E.G., 133 Ill.2d
98, 139 Ill.Dec. 810, 549 N.E.2d 322 (1989).

This doctrine is not the legal equivalent of emancipation,
for an emancipated minor assumes all legal responsibility
for his or herself. Thus, in the situation of an emancipated
minor, the legal duty to provide care is no longer applicable.
There is no indication in argument or record that Shannon
Nixon was emancipated. Rather, she lived in Appellants’
home and did not assert her independence from Appellants
in a manner which would lead to a finding of emancipation.
See Nicholason v. Follweiler, 735 A.2d 1275, 1278
(Pa.Super.1999); Ross v. Commonwealth of Pennsylvania,
Department of Public Welfare, 60 Pa.Cmwith. 403, 431 A.2d
1135, 1138 (1981); and Detwiler v. Detwiler, 162 Pa.Super.
383, 57 A.2d 426 (Pa.Super. 1948).

We believe that, without passing comment upon the
wisdom of the mature minor doctrine itself, a terse review
of the facts and circumstances which confronted the courts
of our sister states readily reveals why the doctrine is not
applicable to Appellants’ case.

In Cardwell v. Bechtol, the Supreme Court of Tennessee
addressed the issue in the context of a civil medical
malpractice suit, under that state’s common law of torts. The

7a

Appendix A

defendant, a licensed osteopath, performed spinal
manipulations on a 17-year-old woman, without the consent
of her parents. After complications arose, her parents brought
suit against the osteopath for a variety of complaints related
to the failure to obtain proper informed consent. As a defense,
the osteopath asserted that the young woman was competent
to, and actually did give informed consent for the procedure
that he performed. The Tennessee court agreed with the
defendant, and adopted the mature minor exception, as
defined above.

In Belcher v. Charleston Area Medical Center, the
Supreme Court of Appeals of West Virginia also adopted a
version of the mature minor doctrine. That court addressed
the doctrine in the context of a wrongful death suit, where
the plaintiffs asserted that their son, a 17-year-old man with
muscular dystrophy, should have been consulted prior to his
doctor’s withholding medical treatment from him due to a
“Do Not Resuscitate” order which had been requested by
his parents. When the young man had a respiratory arrest
and cardiac failure, the hospital staff attempted to revive him
only with the minimal procedures allowed by a “Do Not
Resuscitate” order. That court held that

except in very extreme cases, a physician has no
legal right to perform a procedure upon, or
withhold treatment from a patient without the
patient’s consent, nor upon a child without the
consent of the child’s parents or guardian, unless
the child is a mature minor, in which case the
child’s consent would be required. Whether the
child has the capacity to consent depends upon

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Appendix A

the age, ability, experience, education, training,
and degree of maturity or judgment obtained by
the child, as well as upon the conduct and
demeanor of the child at the time of the procedure
or treatment. The factual determination would
also involve whether the minor has the capacity
to appreciate the nature, risks, and consequences
of the medical procedure to be performed, or the
treatment to be administered or withheld.

Belcher, 422 S.E.2d at 838.

Finally, Appellants bring the case of In re E.G., a Minor,
133 Ill.2d 98, 139 Ill.Dec. 810, 549 N.E.2d 322 (1989), to
our attention. The Supreme Court of Illinois held there that

[t]he common law right to control one’s health
care was also the basis for the right of an
incompetent patient to refuse life-sustaining
treatment through a surrogate.... We see no
reason why this right of dominion over one’s own
person should not extend to mature minors.

139 Ill.Dec. 810, 549 N.E.2d at 326. The rationale of the
Illinois court demonstrates the limitations of the doctrine.
As the Illinois court stated,

[t]he trial judge must determine whether a minor
is mature enough to make health care choices on
her own. An exception to this, of course, is if the
legislature has provided otherwise, as in the

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Appendix A

Consent by Minor to Medical Operations Act. We
feel the intervention of a judge is appropriate for
two reasons.

First, Illinois public policy values the sanctity of
life. When a minor’s health and life are at stake,
this policy becomes a critical consideration.
A minor may have a long and fruitful life ahead
that an immature, foolish decision could
jeopardize. Consequently, when the trial judge
weighs the evidence in making a determination
of whether a minor is mature enough to handle a
health care decision, he must find proof of this
maturity by clear and convincing evidence.

Second, the State has a parens patriae power to
protect those incompetent to protect themselves.
“[I]t is well-settled that the State as parens patriae
has a special duty to protect minors and, if
necessary, make vital decisions as to whether the
condition is life threatening, as wrenching and
distasteful as such actions may be.” The State’s
parens patiae power pertaining to minors is
strongest when the minor is immature and thus
incompetent (lacking capacity) to make these
decisions on her own. The parens patriae authority
fades, however, as the minor gets older and
disappears upon her reaching adulthood. The State
interest in protecting a mature minor in these
situations will vary depending upon the nature of
the medical treatment involved. Where the health

Raa i i ia

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Appendix A

care issues are potentially life threatening, the
State’s parens patriae interest is greater than if
the health care matter is less consequential.

139 Ill.Dec. 810, 549 N.E.2d at 327 (citations omitted).

We find the current case to have a crucial distinction
from the cases relied upon by Appellants.” * The legislature
of this Commonwealth has provided a statute which identifies
those minors who are deemed sufficiently mature to give
consent to medical treatment.

Any minor who is eighteen years of age or older,
or has graduated from high school, or has married,
or has been pregnant, may give effective consent
to medical, dental and health services for himself
or herself, and the consent of no other person shall
be necessary. |

Act of Feb. 13, 1970, P.L. 19, No. 10, § 1, 35 P.S. § 10101.
Our legislature, as Appellants assert, has created several other
situations where a minor may give lawful consent for medical

2. Because we find that an affirmative duty was statutorily
placed upon Appellants, we need only note that this Court has
indicated that, “[t]he inherent dependency of a child upon his parent
to obtain medical aid, i.e., the incapacity of a child to evaluate his
condition and summon aid himself, supports imposition of such a
duty upon the parent.” Commonwealth v. Konz, 498 Pa. 639, 450
A.2d 638, 641 (1982) (emphasis added).

3. Appellants fail to cite, and our own research fails to reveal
any cases from our sister states which hold that the doctrine espoused
by Appellants is viable as a defense in a criminal case.

{

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Appendix A

treatment. See Act of April 14, 1972, P.L. 221, No. 63 § 12,
71 P.S. § 1690.112 (minors may consent to diagnosis or
treatment when suffering from the use of controlled or
harmful substances); Act of April 23, 1956 P.L. (1955) 1510
§ 14, 35 P.S. § 521.14 (allows minors to consent to the
treatment of venereal disease); and Act of Dec. 9, 1969 P.L.
333, § 1 as amended, 35 P.S. § 10001 (allows minors over
17 years old to voluntarily donate blood without parental
consent) but cf. 18 Pa.C.S. § 3206(c) (requires a minor to
petition court for consent to an abortion when the parents do
not consent; before giving such consent, the court must
ascertain that the minor is mature and capable of giving
informed consent). 3

We agree that these statutes create specific exceptions
to the general rule of incapacity. The statutes do not, contrary
to Appellants’ assertion, show a legislative intent that any
minor, upon the slightest showing, has Capacity either to
consent to or to refuse medical treatment in a life and death
Situation. We therefore hold that the maturity of an
unemancipated minor is not an affirmative defense applicable
to the charges brought-against Appellants.‘

Appellants’ second argument is that the parental duty to
provide medical care was negated by Shannon Nixon’s
privacy interests under the constitutions of the United States

4. We note that our Superior Court has held, that “even if [the
minor victims] were considered mature enough to freely exercise
their religious beliefs, it does not dispel [the parents’] duty while
the children are in their care, custody, and control to provide them
with parental care, direction and sustenance.” Commonwealth v.
Cottam, 420 Pa.Super. 311, 616 A.2d 988 (1992).

12a

Appendix A

and Pennsylvania.’ This Court has acknowledged that both
~ constitutions do offer protections of personal privacy, which
results from the “penumbra” of articulated rights. See In re
“B”, 482 Pa. 471, 394 A.2d 419 (1978). The Pennsylvania
Constitution encompasses “the right to be let alone.” Stenger
v. Lehigh Valley Hospital Center, 530 Pa. 426, 609 A.2d
796 (1992). The difference between the two constitutions is
in the tests involved in determining if a violation of privacy
has occurred. In order to determine if a violation of the United
States Constitution has occurred, a flexible balancing
approach is employed with increasing levels of scrutiny
corresponding to increasing levels of confidentiality
intrusions. See id. at 801. On the other hand, under
Pennsylvania’s constitution, while the right to privacy is not
absolute, we do not apply a flexible approach. In this
Commonwealth, only a compelling state interest will
override one’s privacy rights. Id. at 802, citing Fabio v. Civil
Service Commission of the City of Philadelphia, 489 Pa.
309, 414 A.2d 82 (1980).

A compelling interest in the welfare of minors may
impinge upon the constitutional rights of both minors and
adults simultaneously. In Commonwealth v. Wormser, 260
Pa. 44, 103 A. 500 (1918), this Court examined whether a
criminal prosecution could stand for the crime of employing
a minor at night and without a certificate. As a defense, the

5. Neither the Commonwealth nor Appellants have addressed
whether parents of a deceased minor have standing to assert the
minor’s constitutional rights as a bar to prosecution of their own
criminal behavior. In the present circumstances, we decline to
address this question sua sponte.

l3a

Appendix A

appellant argued that such a criminal prosecution infringed
upon his, and the minor’s, constitutional right to contract.
We stated,

[t]he statute in question was enacted under the
general police power of the Commonwealth. Its
object is declared te be “to provide for the health,
safety, and welfare of minors,” and it is too clear
for discussion that this is an appropriate subject
for legislative action not only in the exercise by
the Commonwealth of its authority as parens
patriae but also of the inalienable power to enact
such laws as promote the health, morals and
general welfare of the people.

260 Pa. at 46, 103 A. at 501.

As we find that the state’s interest as parens patriae in
the very life of an unemancipated minor is a compelling
interest, and the imposition of a parental duty to provide
care for a minor in their custody is an appropriate subject
for legislative action, we need not to examine this
constitutional question further. Additionally, as we find that
Pennsylvania’s Constitution is more protective of privacy
than the United States Constitution, an analysis of that
jurisprudence is unnecessary.

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Appendix A

In summary, we hold that the mature minor doctrine
suggested by Appellants is not an applicable defense in this
case. We also hold that Appellants’ convictions are not an
unconstitutional violation of the victim’s right to privacy.
We therefore affirm the order of the Superior Court.°

Justice CAPPY files a concurring opinion.

6. We note that Superior Court addressed various constitutional
arguments regarding convictions under 18 Pa.C.S. § 2504 and
§ 4304 in Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616
(1985) and Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d
988 (1992). We have not addressed many of the issues presented in
those cases and will not do so here, as the parties do not raise them.

-l5a

Appendix A

CAPPY, Justice, concurring.

From my review of the record, it is evident that Shannon
Nixon did not have the maturity to make an informed decision
regarding medical treatment. Thus, I concur in the majority’s
result, which affirms the order of the Superior Court,
upholding the trial court’s judgment of sentence. I write
separately, however, because I do not agree with the
majority’s characterization of the question that appellants
raised for our consideration or with the majority’s view of
the role that legislative intent should play in this case or
with the majority’s ultimate decision to reject the mature
minor doctrine. !

The question raised in this appeal — did Shannon Nixon,
even though a minor, have the right to refuse medical
attention — is of weighty import, and involves a matter which

1. I found the majority opinion ambiguous. When I read the
majority’s statement on page 5 of its opinion that “(w]e believe that,
without passing comment on the wisdom of the mature minor
doctrine itself, a terse review of the facts and circumstances which
confronted the courts of our sister states readily reveals why the
doctrine is not applicable to Appellants’ case”, I was given to believe
that the majority had decided not to determine, one way or the other,
whether the doctrine would be adopted in Pennsylvania. If this had
been the case, then the better course of action would have been the
dismissal of this appeal as improvidently granted, rather than the
issuance of an opinion containing dicta. It was after some
deliberation of the majority’s discussion of the Statutory exceptions
to the general rule of minor incapacity on pages 7 and 8 of its opinion,
that I concluded that the majority has evaluated the doctrine and
determined that it will not be part of our common law under any
circumstances.

l6a

Appendix A

has “deep roots in our common law.” In re Fiori, 543 Pa.
592, 673 A.2d 905, 909 (1996). In Pennsylvania, the control
of one’s own person and the right of self-determination are
closely guarded through the principle of informed consent,
which declares that absent an emergency, medical treatment
may not be imposed without a person’s permission. Id. The
right to refuse treatment or to withdraw treatment once it
has begun is a logical corollary to that principle. Id.

Under the common law, a minor is deemed incompetent
to provide informed consent. Parents United for Better Schs.,
Inc. v. School Dist. of Phila. Bd. of Educ., 166 Pa.Cmwilth.
462, 646 A.2d 689, 691 (1994). Until the age of majority, a
minor’s parents make medical treatment decisions on his or
her behalf. Id. The Pennsylvania legislature, however, has
rendered the authority of parents to speak for their minor
child with respect to health care less than absolute in certain
circumstances, by enacting several statutes that allow minors
to speak for themselves. Under 35 P.S. § 10101, a minor
who is eighteen or older or graduated from high school or
who has married or has been pregnant, may consent to health
care treatment; under 35 P.S. § 10001, a minor who is
seventeen years of age or older may donate blood in any
voluntary, non-compensatory program without parental
permission; under 35 P.S. § 10103 and 35 P.S. § 521.14(a),
a minor who may be pregnant or infected with a venereal
disease may seek and receive treatment; under 71 PS.
§ 1690.112, a minor who suffers from use of a controlled or
harmful substance may consent to the furnishing of medical
care or counseling; and finally, under 18 Pa.C.S. § 3206(c),
a minor who proves in the court of common pleas that she is
mature and capable of giving informed consent may consent
to and obtain an abortion.

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Appendix A

These statutes are at the heart of the majority’s holding.
The majority states:

[These] statutes create specific exceptions to the
general rule of incapacity. The statutes do not,
contrary to Appellants’ assertion, show a
legislative intent that any minor, upon the slightest
showing, has capacity either to consent to or to
refuse medical treatment in a life and death
situation. We therefore hold that the maturity of
an unemancipated minor is not an affirmative
defense applicable to the charges brought against
Appellants.

Majority opinion at 1155.

While the majority and I agree that these statutes provide
“specific exceptions” to the general precept that minors are
legally incapable of informed consent, the majority and
I part company in several respects.

First, I believe that the majority’s characterization of
appellants’ position is inaccurate. In my view, appellants
did not assert that a minor upon the “slightest showing” of
capacity should be permitted to consent to or to refuse health
care treatment or premise application of the mature minor
doctrine on a “life and death situation.” Instead, appellants
argued that “a minor of demonstrated maturity” or “[a] minor
who is able to demonstrate the requisite maturity” “should
have the ability to make determinations as to medical care.”
(Brief for Appellants, pp. 11-12.).

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Appendix A

Second, I do not believe that legislative intent should
have the decisive role in the case sub judice that the majority
apparently gives it. The majority’s holding against
recognition of the mature minor doctrine is expressly and
exclusively premised on the intent with which the legislature
enacted its statutory exceptions to the general rule of parental
consent. While it is certainly proper and advisable for this
court to take note of relevant statutory authority in assessing
the wisdom of the doctrine, and to strive for a judicial
pronouncement that is consistent with that authority,
see Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897, 904, 905
(1979), it is not appropriate to give it a dispositive role.
Except where the legislature has established a comprehensive
statutory scheme, aimed at occupying an entire area, this
court is guided, not directed, by legislative action. Id.

Lastly, I, unlike the majority, would recognize the mature
minor doctrine. Indeed, the same statutes that inform the
majority’s rejection of the doctrine lead me to the opposite
result. I agree with the legislature’s willingness to make
appropriate exceptions to the rule of minor incapacity in the
first place and with the policies reflected in the exceptions
the legislature has seen fit to enact. By their terms, the
exceptions fall into two broad categories: those that are
premised on a specific medical condition that ought to be
treated and those that focus on a minor’s status. With regard
to the latter, the legislature has decided, for example, that
turning eighteen, marrying, becoming a parent or graduating
from high school are indicative of one’s readiness to make
health care decisions on one’s own. 35 P.S. § 10101.

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Appendix A

In the same way, I believe that when it is demonstrated
that a minor has the capacity to understand the nature of his
or her condition, appreciate the consequences of the choices
he or she makes, and reach a decision regarding medical
intervention in a responsible fashion, he or she should have
the right to consent to or refuse treatment. I would, therefore,
adopt the mature minor doctrine.

The record falls far short of establishing that Shannon
Nixon met this standard. Accordingly, I concur in the
majority’s result.”

2. Because I conclude that the mature minor doctrine does not
apply in this case as a matter of fact, I decline to address appellants’
contention that the doctrine provides them with an “affirmative
defense” to the charges the Commonwealth brought against them.
Because I would find that under the common law, a mature minor
may consent to or refuse medical treatment, I would not reach, and
I express no opinion on, the privacy issue appellants raise under the
United States and Pennsylvania Constitutions. P.J.S. v. Pennsylvania
State Ethics Comm’n, 555 Pa: 149, 723 A.2d 174, 176 (1999).

20a
APPENDIX B — OPINION OF THE SUPERIOR
COURT OF PENNSYLVANIA DATED AND
FILED SEPTEMBER 21, 1998
SUPERIOR COURT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
Appellee,
v.
DENNIS E. NIXON,
Appellant.
COMMONWEALTH OF PENNSYLVANIA,
Appellee,
v.
LORIE A. NIXON,

Appellant.

Argued April 14, 1998.
Filed Sept. 21, 1998.

* * *

Before DEL SOLE, TAMILIA and EAKIN, JJ.

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Appendix B

DEL SOLE, Judge:

Appellants, Dennis and Lorie Nixon, were convicted of
involuntary manslaughter and endangering the welfare of a
child. They were sentenced to two and one-half to five years
incarceration and a fine of $1,000. This direct appeal
followed. We affirm.

On appeal, Appellants raise five issues. The first three
issues concern Appellants’ trial counsel’s ineffectiveness for
failing to raise: (1) Shannon Nixon’s refusal of medical
treatment pursuant to her right of privacy guaranteed by the
U.S. and Pennsylvania constitutions; (2) Shannon Nixon’s
ability to refuse medical treatment as a mature minor; and
(3) a violation of the notice requirement of due process where
spiritual treatment was authorized by statute. Appellants
additionally argue the trial court erred in failing to deliver a
mistake of fact charge to the jury. Finally, Appellants argue
the trial court improperly imposed an excessive sentence.

Appellants were the parents of Shannon Nixon
(“Shannon”). The Nixon family are members of the Faith
Tabernacle Church, a religion in which illnesses are
addressed through spiritual treatment rather than by
medicine. Thus, when Shannon began to feel ill in June of
1997, Appellants took her to be “anointed” at the church
and prayed for her recovery. Shannon initially felt better and
told her parents she had received her “victory”, a recovery
in answer to prayer. However, soon Shannon was ill again.
As Shannon became increasingly weak and fell into a coma,
Appellants continued to pray for her recovery. Shannon died
hours after she fell into a coma. During the autopsy, it was
determined that Shannon died of complications related to
the onset of diabetes acidosis.

22a

Appendix B

Because of the way Appellants have framed their first
three issues, we choose to address the ineffective assistance
of counsel claims, as well as the merits of the claims
underlying the ineffectiveness claims. Appellants have
complained, and we agree, that the trial court’s rulings on
these issues were not precise. No opinion has been filed to
provide additional guidance on the rulings. Therefore, we
can not determine clearly whether the trial court found these
issues to be waived or whether the trial court addressed them
on their merits. Because Appellants have raised these issues
in the guise of ineffectiveness and alternatively on their
merits, we choose to address both arguments.

Ineffective Assistance of Counsel

Trial counsel is presumed to be effective and an appellant
has the burden of proving otherwise. Commonwealth v.
Williams, 524 Pa. 218, 229, 570 A.2d 75, 81 (1990).
Appellants present three issues they claim trial counsel was
ineffective for failing to raise. A careful review of the record,
however, shows that these issues were adequately raised and
argued by Appellant’s trial counsel before and during the
trial and were rejected by the trial court. Accordingly, there
was no waiver of issues and counsel was not ineffective for
failing to raise these claims.

Right to Privacy/Mature Minor

As described above, Appellants claim that Shannon had
a right to refuse medical treatment pursuant to her
constitutional right to privacy which would eliminate
Appellants’ duty to provide treatment. Appellants argue that

23a

Appendix B

a court evaluating a privacy interest should look at whether
there exists a compelling state interest upon which to base
encroachment into the right of privacy. Further, Appellants
argue, because Shannon exercised her right to privacy, “her
incapacity as a minor to seek medical treatment fades” and
thus, “the [Appellants’] parental duty is discharged.”
~ Appellants’ Brief at 21. Appellants additionally assert
Shannon’s ability to refuse medical treatment as a mature
minor abrogated Appellants’ duty of care. Because both of
these arguments necessitate an abrogation of Appellants’
parental duty of care, we will address them together.

Although Shannon, as a mature minor, had a right to
refuse medical treatment pursuant to her constitutional right
to privacy, this right does not discharge her parents’ duty to
override her decision when her life is in immediate danger.
Our Supreme Court, in Green Appeal, 448 Pa. 338, 292 A.2d
387 (1972), permitted a sixteen-year-old boy to refuse to
undergo an operation based upon religious beliefs. However,
the permission to refuse medical treatment extended to
minors in Green was strictly limited to situations in which
the minor’s life was not threatened. Thus, Green did not
provide Shannon with the legal means to refuse medical
treatment at a time when her life was in danger.

In a case more directly on point, a panel of this court
specifically refused to extend a minor’s right to exercise
religious beliefs in such a manner that the parents’ duties to
the minor were abrogated. Commonwealth v. Cottam, 420
Pa.Super. 311, 616 A.2d 988 (1992). In Cottam, the
defendants failed to provide food to their fourteen-year-old
son and twelve-year-old daughter for a six-week period. The

24a

Appendix B

defendants argued that their children were mature enough to
voluntarily exercise their religious beliefs by refraining from
eating and consequently, the defendants had no duty to
provide food for the children. The court did not agree, holding
instead that:

... even if [the children] were considered mature
enough to freely exercise their religious beliefs,
this does not dispel [defendants’] duty while the
children are in their care, custody and control to
provide them with parental care, direction and
sustenance. X

Cottam at 335-37, 616 A.2d at 1000.

In Commonwealth v. Barnhart, 345 Pa.Super. 10, 497
A.2d 616 (1985), another set of parents from Appellants’
church were convicted of involuntary manslaughter and
endangering the welfare of a child after relying solely on
spiritual healing to treat their two-year-old son’s cancer. This
court held that every parent in the Commonwealth of
Pennsylvania had a duty of care to their child, at the very
least, “to avert the child’s untimely death.” Barnhart, at 621.
The court elaborated on the nature of the parents’ duty:

A parent has the legal duty to protect her child,
and the discharge of this duty requires affirmative
performance. The inherent dependency of a child
upon his parent to obtain medical aid, i.e., the
incapacity of a child to evaluate his condition and
summon aid by himself, supports imposition of
such a duty upon the parent.

Id. (citations omitted).

25a
Appendix B

Appellants had a duty to their minor child Shannon to
override her own religious beliefs and obtain medical
treatment for her when her condition became life-threatening.

Neither Shannon’s right of privacy, nor her status as a mature
minor abrogated that duty. Thus, Appellants’ arguments fail
on their merits.

Notice

Appellants argue that their prosecution violated notice
requirements of due process where spiritual treatment was
authorized by statute. Appellants’ argument refers to a
possible conflict between criminal statutes and child abuse
statutes. The Child Protective Services Act (“The CPSA”)
provides:

If, upon investigation, the county agency
determines that a child has not been provided
needed medical or surgical care because of
seriously held religious beliefs of the child’s
parents, guardian or person responsible for the
child’s welfare, which beliefs are consistent with
those of a bona fide religion, the child shall not
be deemed to be physically or mentally abused.
The county agency shall closely monitor the child
and shall seek court-ordered medical intervention
when the lack of medical or surgical care threatens
the child’s life or long-term health. In
cases involving religious circumstances, all
correspondence with a subject of the report and
the records of the Department of Public Welfare
and the county agency shall not reference “child

26a

Appendix B

abuse” and shall acknowledge the religious basis
for the child’s condition, and the family shall be
referred for general protective services, if
appropriate.

23 Pa.C.S.A. § 6303(b)(3).
The involuntary manslaughter statute provides:

A person is guilty of involuntary manslaughter
when as a direct result of doing an unlawfulact in
a reckless or grossly negligent manner or the
doing of a lawful act in a reckless or grossly
negligent manner, he causes the death of another
person.

18 Pa.C.S.A. § 2504.

Appellants argue that because the CPSA exempts parents
who utilize spiritual treatment for their children from
characterization as child abusers, they did not have sufficient
notice that their spiritual treatment of Shannon could be
criminal under the involuntary manslaughter statute. We
disagree.

We find that the CPSA and the involuntary manslaughter
statutes are not in conflict in their plain meaning, as well as
under a constitutional analysis. A plain reading of the statutes
shows that an act which does not qualify as child abuse may
still be done in a manner which causes death and thus
qualifies as involuntary manslaughter. This precise situation
occurred in this case. While the Nixons were not considered

27a

Appendix B

child abusers for treating their children through spiritual
healing, when their otherwise lawful course of conduct led
to a child’s death, they were guilty of involuntary
manslaughter.

Appellants point to statutes in Minnesota and Florida
which were found to violate due process requirements upon
review by courts considering appeals of convictions similar
to Appellants’. These statutes, however, differ significantly
from the CPSA. The Minnesota statute in question in State
v. McKown, 475 N.W.2d 63 (Minn.1991), cert. denied, 502
U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992), provided
that “spiritual means or prayer . . . shall constitute ‘health
care.’ ” Id. at 65, n. 3. Similarly, a Florida statute at issue in
Hermanson v. State, 604 So.2d 775 (Fla.1992), provided that
while spiritual treatment will not be characterized as child
abuse, a court may still order:

... when the health of the child requires it, the
provision of medical services by a physician, . . . ,
or treatment by a duly accredited practitioner who
relies solely on spiritual means for healing in
accordance with the tenets and practices of a well-
recognized church or religious organization.

Id. at 776 (emphasis added).

Thus, the Florida statute raised spiritual intervention to
a level equal to that of medical treatment. The Minnesota
and Florida legislatures specifically defined spiritual healing
as accepted treatment for illness in children, raising it to the
same level as conventional medical treatment.

28a

Appendix B

The CPSA specifically does not equate spiritual
treatment with medical care; rather, it merely exempts parents
who treat their children in this manner from characterization
as child abusers. Further, the CPSA does not negate the duty
imposed on parents to procure medical care for their children;
in fact, the CPSA provides a protocol through which the state
can step in and enforce that duty “when the lack of medical
or surgical care threatens the child’s life or long-term health.”
It is clear that if the Pennsylvania legislature wanted to
authorize spiritual treatment as health care, it could have
adopted a statute similar to the one in Minnesota. However,
the purpose of the CPSA is to ensure that children in life-
threatening danger receive proper medical attention. Thus,
the statutes upon which our sister courts found
unconstitutional are distinguishable from the CPSA.

Jury Charge

At trial, Appellants requested the court instruct the jury
that Appellants were acting under a mistake of fact. Their
mistake of fact, Appellants allege, was that they believed
“their daughter would not die and the Lord would intervene.”
Appellants’ Brief at 35. The trial court, however, found the
facts did not warrant a mistake of fact charge, and based its
holding on Appellants’ testimony about God as the giver
and taker of life. The trial court concluded “. . . there was no
mistake of fact by them seeking divine intervention.”
R.R. at 428a.'

1. In reviewing trial matters, we have relied on the Reproduced
Record because an original trial transcript was never filed with this
court. We note that Appellee has not objected to the Reproduced
Record.

29a

Appendix B

We shall not reverse a trial court’s refusal to give a
requested jury charge unless the court’s refusal was
prejudicial to the defendants. Commonwealth v. Cottam, 420
Pa.Super. 311, 333-35, 616 A.2d 988, 999 (1988). If the
proposed jury charge is inapplicable and improper, the court
should not give it to the jury. Id.

The trial court found that Appellants’ testimony did not
provide a proper basis for a mistake of fact charge. We will
not disturb the trial court’s finding, especially as we look at
the testimony of Appellant Lorie Nixon: “I feel that God is
the giver and taker of life.” R.R. at 388a. While Appellants
had hope and faith that divine intervention could cure
Shannon, they also knew it might not.

Sentencing

Appellants argue the trial court abused its discretion in
imposing a sentence above the aggravated range outlined in
the sentencing guidelines. Further, Appellants assert, the trial
court failed to consider Appellants’ rehabilitative capacity.
We disagree.

Because these issues challenge the discretionary aspects
of sentencing, we must first decide whether to accept
Appellants’ appeal. 42 Pa.C.S.A. § 9781. Appellants’ brief
contains the requisite statement of reasons relied upon in
support of appeal as required by Pa.R.A.P. 2119(f) and
Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17
(1987). Therefore, we must determine if Appellants have
raised a substantial question that the sentence imposed is
not appropriate under the Sentencing Code. Commonwealth
v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

30a

Appendix B

The trial court sentenced Appellants above the
aggravated range outlined in the Sentencing Guidelines; thus,
a substantial question is raised only when the sentence is
unreasonable. Id. at 150-52, 539 A.2d at 374. We note that
ordinarily, allegations that a sentencing court “failed to
consider” or “did not adequately consider” various factors
is really a request for this court to put its judgment in place
of the trial court’s and do not raise a substantial question.
Commonwealth v. Montalvo, 434 Pa.Super. 14, 641 A.2d
1176 (1994). Further, a claim of excessiveness when the
sentence is within the statutory limits is not a substantial
question. Commonwealth v. Dungan, 372 Pa.Super. 323, 539
A.2d 817 (1988). However, because of the unusual nature
of this case, we will briefly address the merits of Appellants’
argument.

The standard of review in sentencing matters is well
settled. Sentencing is left to the discretion of the sentencing
court and will not be disturbed absent a manifest abuse of
discretion. Commonwealth v. Plank, 498 Pa. 144, 145, 445
A.2d 491, 492 (1982).

Appellants argue the trial court improperly considered
their prior record in deciding their sentence. Appellants’ prior
records stem from the death of their child, Clayton, in 1991.
Clayton was nine years old and died from complications
arising from an ear infection. Because Appellants did not
take Clayton for medical treatment, they were prosecuted
and pled no contest to involuntary manslaughter and
endangering the welfare of a child. In that instance,
Appellants received two years of probation.

3la

Appendix B

The trial court based its departure from the sentencing _
guidelines on the repetitive nature of Appellants’ crime. The
trial court adequately explained its rationale and justification
for the sentence in its June 10, 1997 order. The court gave
great emphasis to the lack of opportunity for rehabilitation
of Appellants and possibility of a recurrence of these criminal
events. We will not disturb the trial court’s well-justified
sentence.

Appellants make several other arguments in which they
assert the trial court did not properly give weight to certain
testimony and sentencing factors. However, Appellants do
not dispute the fact that the trial court was aware of and even
addressed these factors. As stated above, we will not disturb
a trial court’s sentence on this basis absent an abuse of
discretion.

Judgment of sentence affirmed.

32a

APPENDIX C — PA. R.A.P. RULE 1925 ORDER OF
THE COURT OF COMMON PLEAS, BLAIR COUNTY,
PENNSYLVANIA DATED AND FILED JULY 16, 1997

THE COURT OF COMMON PLEAS
BLAIR COUNTY, PENNSYLVANIA

96 CR 1260
COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS NIXON
NORMAN D. CALLAN JUDGE
Pa. R.A.P. RULE 1925 ORDER,

AND NOW, this 16th day of July, 1997, in conformance
with Pa. R.A.P. Rule 1925, the reasons for the rulings on the
pre-trial motions are set forth in the Orders dated February
11, 1997. Individual voir dire was conducted on the day of
Jury Selection March 31, 1997, and completed on April 1,
1997. The reasons for the rulings on the objections made
during trial are set forth in the trial transcript. The reasons
for the sentence imposed are set forth in the sentencing
transcript and the Order dated June 10, 1997.

BY THE COURT:

s/ Norman D. Callan
3.

33a

APPENDIX D— ORDERS OF THE COURT OF COMMON
PLEAS OF BLAIR COUNTY, PENNSYLVANIA DATED
FEBRUARY 11, 1997 AND FILED FEBRUARY 14, 1997

IN THE COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA

96 CR 1260
COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261
COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON
PRESIDING JUDGE: — THE HONORABLE NORMAN D.
CALLAN
* oe *
ORDER

AND NOW, this 1 ith day of February, 1997, the above-
captioned matter having come before this court pursuant to
pre-trial omnibus motions, on this one in particular founded
on the free exercise clause of the Constitution of the United

34a

Appendix D

States, as well as that of the state, Article 1, Section 3, the
court is familiar with the cases referred to, not only Barnhart,
but other constitutional issues dealing with freedom of
religion and the free enterprise clause provides substantial
protection for lawful conduct granted in religious belief. It
does not, however, stand for the proposition of allowing
unlawful conduct. The court is satisfied that the state has a
compelling state interest in the public health, safety, morals
and general welfare. There can’t be any more least restriction
than the prosecution after the event.

For those reasons, the objection and the Motion to
Dismiss based on the free exercise clause is denied and
dismissed.

BY THE COURT:

s/ Norman D. Callan
J.

35a

Appendix D

IN THE COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA

96 CR 1260
COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261

COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON
PRESIDING JUDGE: — THE HONORABLE NORMAND.
CALLAN
* * *
ORDER

AND NOW, this 11th day of February, 1997, the above-
captioned motion to dismiss based upon the age of the alleged
victim, being three days shy of 17 years of age, and therefore,
not subject to the caveats of Barnhart and Cottam, the court
having reviewed both of those cases, the court is satisfied to
follow the language of Cottam at 616 A.2d at Page 1000,

36a

Appendix D

“Tfeven if Laura and Eric were considered mature
enough to freely exercise their religious beliefs,
this does not dispel appellant’s duty while the
children are in their care, custody and control, to
provide them with parental care direction and
sustance.”

The court based upon that is satisfied that the motion to
dismiss based upon the age of the victim must be denied and
dismissed at this level. This will not preclude a motion for a
demurrer during the trial, in the event that the factual basis
can be made out that would bring it within the confines that
there was no duty of parental care, that she was not in the
custody of her parents, or would take it out of the above-
quoted aspect of the Cottam case.

BY THE COURT:

s/ Norman D. Callan
J.

37a

Appendix D

IN THE COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA

96 CR 1260
COMMONWEALTH OF PENNSYLVANIA

DENNIS EUGENE NIXON, SR.

96 CR 1261

COMMONWEALTH OF PENNSYLVANIA

LORIE ANN NIXON
PRESIDING JUDGE: — THE HONORABLE NORMAN D.
CALLAN
*x * *
ORDER

AND NOW, this 11th day of February, 1997, the above-
captioned matter having come before this court on one of
the omnibus pre-trial motions to dismiss, premised on the
wording in the Child Protective Services Act, 23 Pa. C.S.A.
b3, definition of child abuse, the court rejects embracing the
caselaw from New Jersey. The court is satisfied with the

38a

Appendix D

current status of Pennsylvania law as to Barnhart and Cottam,
as to the duty of these parents and that their religion is not a
defense in the respect as to the crimes alleged in this
prosecution.

For that reason, the motion to dismiss is denied and
dismissed.

BY THE COURT:

s/ Norman D. Callan
J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0863%3A2. Public record. Not legal advice.