Diana H. v. Rubin – 11/21/2007

November 27, 2007

Arizona Court of Appeals Division Two Holds That the Parent of a Child Who Has Been Adjudicated Dependent Has the Right to Prohibit State-Directed Immunization of the Child on the Grounds of the Parent’s Religious Beliefs.

On March 26, 2007, the Child Protective Services division of the Arizona Department of Economic Security (ADES) took temporary custody of Diana’s nine-month-old daughter, Cheyenne, after the child’s pediatrician expressed concern for her health. Before Cheyenne was adjudicated dependent, Diana requested in writing that ADES exempt Cheyenne from the immunization requirements that apply to children in State child-care facilities on religious grounds. ADES filed a motion seeking authorization to immunize Cheyenne over her mother’s objections, arguing that the immunizations were in Cheyenne’s best interests and were medically necessary. Following an evidentiary hearing, Judge Rubin granted the motion filed by ADES, declaring the immunizations to be medically necessary and in Cheyenne’s best interests. Diana filed a special action.

In a split decision, the Arizona Appeals Court reversed. The Court explained that the State’s interest in the health and welfare of Arizona children must be weighed against a parent’s right to determine the religious upbringing of their child. Under A.R.S. § 8-531(5), ADES acquires a number of rights and responsibilities when it is awarded legal custody of a dependent child, including providing medical care. Medical care, however, is “subject to the residual parental rights and responsibilities.” The Court concluded that these residual parental rights include a parent’s right to determine the religious upbringing of his or her child. Therefore, the Court held, an adjudication of dependency does not eliminate a parent’s right to control his or her child’s religious upbringing. Applying the analysis of Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972), the Court explained that to override this parental right, the State must demonstrate a compelling interest in the child’s health. Although usually, the State’s interest in protecting the health and welfare of children would override a parent’s right to guide their child’s religious upbringing, in the instant case the State’s interest was not compelling. This is demonstrated by A.R.S. §§ 36-883(C) & 15-873(A)(1), which reflect a legislative judgment that allows parents to seek a religious exemption from school and child-care facility immunization requirements.

Judge Espinoza dissented, declaring the Yoder test inapplicable. Specifically, Judge Espinoza argued that Yoder was factually distinguishable because unlike the parental decision in Yoder, which did not jeopardize the health or safety of the child, Diana’s decision put Cheyenne medically at risk. Additionally, in Yoder, the interests in conflict were those of the State and of the parent, but the conflicting interests, in this case, include not only the State’s and the parent’s, but also the child’s. Citing case law from other jurisdictions, Judge Espinoza also contended that when a conflict arises between a parent’s religious belief and the state’s interest in providing medical care, the state’s interest should prevail. Finally, Judge Espinoza took issue with the majority’s conclusion that exemptions from immunizations based on a parent’s religious beliefs found in other statutes have any relevance to the statute effecting dependent children.

Judge Eckerstrom, joined by Judge Vásquez, wrote the majority opinion for the Court; Judge Espinoza dissented .