(dissenting). Under the circumstances of this case I find it difficult to subscribe to the view that this twelve-year-old boy of normal intelligence should be compelled to submit to surgery, which both the boy and his father seriously oppose.
Unquestionably, the boy is handicapped by an extremely serious facial disfigurement and a marked speech defect, due to a congenital cleft palate and harelip, which in all probability could be in part corrected by surgical treatment. The unfortunate opposition to surgery by the boy and his father appears *226to be honest and sincere, although that of the father apparently stems from an unsubstantial and fanatical belief in the existence of “ forces of nature ”.
Under these circumstances the Judge of the Children’s Court was confronted with a most difficult problem, calling for the exercise of sound judgment and discretion. The record indicates that he has considered the case with great care, and both in and out of court, has endeavored, but without success, to persuade the boy and his parents to voluntarily consent to the suggested surgery. The trial court reached the conclusion that more harm than good might result from arbitrarily forcing the boy to submit to surgery. There was also a refusal to find that surgery under such circumstances could be performed without dangerous mental reaction.
In the light of these findings and for the further reason that the court was not faced with an emergency in which the health or life of the child was at stake (Matter of Vasko, 238 App. Div. 128), I feel that there was no improvident exercise of discretion by the Judge of the Children’s Court in declining “ at this time ” to grant the extraordinary order sought in this proceeding.
I therefore dissent and vote to affirm.
All concur, except Wheeler and Van Duser, JJ., who dissent and vote for affirmance in an opinion by Wheeler, J., in which Van Duser, J., concurs. Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ.
Order reversed on the facts and as a matter of discretion, and petition granted, without costs of this appeal to any party. New findings of fact made. [See post, p. 999.]