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filed: August 16, 1985.


Appeal from the Judgment of Sentence June 29, 1983 in the Court of Common Pleas of Cambria County, Criminal No. 0424 and 0425, 1982.


Bruce F. McKenrick and Fremont J. McKenrick, Ebensburg, for appellants.

Patrick T. Kiniry, Assistant District Attorney, Johnstown, for Commonwealth, appellee.

Olszewski, Hester and Shiomos,*fn* JJ.

Author: Olszewski

[ 345 Pa. Super. Page 16]

This matter comes before us on appeal from judgment of sentence for involuntary manslaughter*fn1 and endangering the welfare of a child.*fn2 Appellants' convictions follow the death of their infant son. The child, Justin Barnhart, age 2 years and 7 months, died as a result of an untreated Wilms' tumor. Appellants, life-long members of the Faith Tabernacle

[ 345 Pa. Super. Page 17]

Church, had relied on God to the exclusion of modern medicine to cure the boy's cancer. Justin's death sparked an inquiry. As a result of that investigation, appellants were tried and convicted by a jury on counts of involuntary manslaughter and endangering the welfare of a child. Their post-verdict motions denied, appellants received terms of probation. They now appeal.

Appellants raise five points of error. The first squarely frames the conflict in this case: the competing interests of parent and state in a child's life.


Appellants argue that the criminal statutes were unconstitutionally applied to punish conduct protected by the free exercise clause of the First Amendment. At issue was appellants' failure, for religious reasons, to seek medical treatment for their child. The statutes provide:

Endangering welfare of children

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S. Sec. 4304, and:

Involuntary manslaughter

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, he causes the death of another person.

18 Pa.C.S. Sec. 2504(a). Against these statutory proscriptions, appellants assert a claim of religious right. They contend their conduct as parents raising children within a particular religious order, by the principles and tenets of that order, is protected by the First Amendment. See U.S. Const.Amend. I. Conceding that the state may lawfully abridge their religious freedom, appellants argue that the state has failed to define with specificity what conduct, otherwise protected, is forbidden by Sections 4304 and

[ 345 Pa. Super. Page 182504]

(a). "When the Commonwealth acts to limit this basic freedom, it must do so in clear and unambiguous terms so that potential Appellants know what conduct is proscribed." Appellants' Brief at 15.

Section 4304 speaks of a "duty of care."*fn3 The Crimes Code nowhere defines this duty. The Commonwealth, in response to appellants' request for "the specific law which imposes the duty of care which is alleged to have been violated by the Defendants," stated:

The duty to render care for one's child arises out of the relationship of parent and child. The right to receive medical care is one created by natural law, attributable to the nature of mankind rather than to enactments of law. Various statutes of the Commonwealth of Pennsylvania impliedly recognize this natural right and corresponding duty by providing for remedies to ensure the welfare of children whose parents fail to provide reasonable medical care necessary for the child's health.

Although the Commonwealth failed to elaborate, ample authority exists for its proposition. A parent is charged with the duty of care and control, subsistence and education necessary for the child's physical, mental and emotional health and morals. See 42 Pa.C.S. Sec. 6302 (defining "dependent child"). At the very least, he or she must act to avert the child's untimely death. See Commonwealth v. Breth, 44 Pa.C. 56 (Clearfield Co. 1915); Commonwealth v. Hoffman, 29 Pa.C. 65 (Blair Co. 1903) (parent found guilty of involuntary manslaughter for failure to seek medical assistance for sick child); see also Commonwealth v. Howard, 265 Pa. Super. 535, 538, 402 A.2d 674, 676 (1979) ("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

[ 345 Pa. Super. Page 19]

    of such a duty upon the parent." Commonwealth v. Konz, 498 Pa. 639, 644, 450 A.2d 638, 641 (1982) (explaining Breth and Hoffman).

Appellants' vagueness challenge rests ultimately on the procedural due process requirement of notice. Due process requires a minimum degree of definiteness in the statutory prescription of standards, language which conveys "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223, 231-232, 71 S.Ct. 703, 707-708, 95 L.Ed. 886 (1951). Appellants were charged with consciously disregarding "a substantial and unjustifiable risk that death would result after observing the presence and continuous growth of a tumor in the stomach of Justin Barnhart which caused a continuous weight loss and which ultimately resulted in Justin Barnhart's death by starvation." At the coroner's inquest, appellant William G. Barnhart testified that he and his wife were aware of his son's condition: "Well we realized he was going downhill and in his body -- our little neighbor boy, Scotty Gates, died with leukemia and Justin seemed like he fell that same rut in that short time and it took a lot of faith to keep looking up." William G. Barnhart's inquest testimony would indicate appellants knew Justin's death was imminent. Little remains, therefore, of appellants' "no-notice" claim.*fn4

[ 345 Pa. Super. Page 20]

What does remain is troublesome. Our decision today directly penalizes appellants' exercise of their religious beliefs. Appellants ask how we can hold them criminally liable for putting their faith in God. No easy answer attends. A central tenet of appellants' faith is that life rests ultimately in God's hands. Three generations of appellants' family have adhered to that belief.*fn5 As Pastor Charles Wallace Nixon explained, more than concern for the child's physical well-being, the church's "greater concern" was for the child's spiritual interest or eternal interest:

Well, the only greater concern would have been his spiritual interest or eternal interest.

It has been stated by our presiding elder, by Pastor Reinert, he said, "that the courts and people would not possibly as a whole accept a statement like that, but it has been said that that is an abuse or child abuse or in other words harmful to the child." We would consider

[ 345 Pa. Super. Page 21]

    going to a doctor and trusting in medicine doing greater harm because it would be harmful as we believe in our belief, it would be harming the spiritual and eternal interest of the child and the parents as well in doing so.

Accepting as true these statements of appellants' religious beliefs, the question becomes one of degree: to what extent may a parent impose these beliefs on a minor child?

Appellants' right to hold and to practice their religious beliefs free from governmental interference is guaranteed by the free exercise clause of the First Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment, and by Article I, Section 3 of the Pennsylvania Constitution. Appellants' right to raise their child by these beliefs follows from the guarantee of religious freedom and the state's traditional deference to the parents' authority over their child. See In re Green, 448 Pa. 338, 292 A.2d 387 (1972) (unless the child's life is immediately imperiled, the state's interest must give way to the parent's religious beliefs precluding medical treatment); see also Bellotti v. Baird, 443 U.S. 622, 639 n. 18, 99 S.Ct. 3035, 3046 n. 18, 61 L.Ed.2d 797 (1979) (suggesting there exists a constitutional parental right against undue, adverse interference by the state). Appellants' exercise of these rights has brought them in conflict with other established law. An examination of the bases of these rights makes clear that the conflict was all but inevitable.

The guarantee of freedom of religion is intended to secure the rights of the individual as against the state. Underlying the guarantee is a principle of neutrality, a belief that religion is "not within the cognizance of civil government." Reynolds v. United States, 8 Otto 145, 163, 98 U.S. 145, 163, 25 L.Ed. 244 (1878). However nice the distinction in theory, as the case at bar attests it sometimes fails in practice.

Assertion of a claim of religious right does not vouchsafe the parents secure from state influence in every aspect of their children's ...

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