Ruling: CPS can't immunize over mom's objection


By Howard Fischer, Capitol Media Services

East Valley Tribune

updated 7:53 a.m. CT, Sat., Nov. 24, 2007



The state Court of Appeals has slapped down efforts by Child Protective Services
to have a youngster in foster care immunized over a parent's objections. In a
divided ruling, the majority said while the state has legal custody, the parent
- who presumably will get the child back someday - has certain "residual rights"
the state must honor when possible. Judge Peter Eckerstrom said there has to be
a compelling need to overrule a parent.



But Judge Philip Espinosa, in his dissent, said his colleagues were ignoring an
obvious fact: A court gave temporary custody to Child Protective Services after
concluding that the parent, identified only as Diana H., was unable or unwilling
to provide the necessary care and control of her daughter, Cheyenne.



"The state thus has every reason to question Diana's ability to make the best
decisions for Cheyenne's care and no reason to presume that she would
necessarily act in accordance with Cheyenne's best interests," Espinosa wrote.



The ruling could have implications beyond immunizations in cases where children
are placed in foster care.



First, Eckerstrom said the state would run afoul of both the state and federal
constitutions if it seeks to impose on a child values that differ from those of
the parent.

Potentially more sweeping, the judge said the laws which allow the state to take
temporary custody of a child specifically spell out what powers and
responsibilities that includes. These include the right of physical custody and
to discipline the child and the requirement to provide for adequate food,
clothing, shelter and medical care.



What that means, Eckerstrom said, is anything not on that list remains the right
of the biological parent.



Court records show the state sought custody of Cheyenne amid concerns the child
was malnourished and Diana was unable to protect her from abuse from the girl's
father.



Diana did not contest the state action. But she did argue against immunizations
as contrary to her religious beliefs.



Eckerstrom acknowledged that the primary focus in these kinds of cases has to be
the best interests of the child.



But he said the law also says those "best interests" are served by the
presumptive goal of reuniting the child with the parent. And that means where
possible having the parent involved in the child's upbringing.



In this case, the judge noted that a doctor testified that a child Cheyenne's
age would normally have had 15 immunizations. But the doctor said none of the
diseases pose a life-threatening risk to the child.



Eckerstrom said the state's desire to immunize might be different if the child
was particularly susceptible to one of the diseases, perhaps due to
malnutrition. But there was no such evidence here.



And Eckerstrom said the public policy of the state is embodied in the fact the
Legislature specifically allows parents in Arizona to exempt their children from
immunization on religious grounds, "a decision we have no authority to second
guess."



Espinosa, however, said once a judge gave the state legal custody of Cheyenne,
even temporarily, it had the obligation to both provide comprehensive medical
care and determine what care is in the child's best interests. He said the
decision of his colleagues creates unforeseen problems.



"Under the majority's approach, if a parent raises a religious objection to a
dependent child's receiving medical care, the welfare of the child ceases to be
the governing standard for the juvenile court," Espinosa wrote. "This result is
not only inconsistent with legislative intent but offends the state's public
policy of protecting and providing for its most helpless citizens - dependent
children, whose parents are unable or unwilling to do so."






[Non-text portions of this message have been removed]