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 that while the state has legal custody, the parent — who presumably would 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.
Judge Philip Espinosa, in his dissent, said his colleagues were ignoring one very obvious fact: A court gave temporary custody to CPS 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.
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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 tried to impose values on a child that differed from those chosen by a parent.
Potentially more sweeping, the judge said the laws that allow the state to take temporary custody of a child specifically spell out what powers and responsibilities that includes. These range from the right of physical custody and the right to discipline the child to the requirement to provide adequate food, clothing, shelter and medical care.
Eckerstrom said 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 whenever 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 there were something showing the child was particularly susceptible to one of the diseases. But there was no such evidence here.
And Eckerstrom said the public policy of the state is embodied in the fact the Legislature specifically gives parents in Arizona the right 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 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."
