Mother can block state from vaccinating child

By The Associated Press
11.27.07

PHOENIX — A mother whose child has been taken away by the state can still refuse to have the child vaccinated, an appellate court ruled in a case that pitted religious rights versus the public’s interest in child protection.

A divided Court of Appeals panel overturned a trial judge and ruled that Arizona law doesn’t empower the state to override the mother’s religion-based stance against immunization.

The court’s Tucson-based division issued the ruling Nov. 21 in a Pima County case involving a girl who was placed in temporary state custody and put in a foster home.

The mother, who allegedly hadn’t provided the child with proper nutrition or protected her from harm from the father, went to court to block state Child Protective Services officials from having the child immunized.

Under the mother’s faith, immunization pollutes a person’s blood, her lawyer said.

During a hearing in trial court, the child’s pediatrician testified that she was at “high risk” because she hadn’t received an immunization for whooping cough. In all, the child hadn’t received about a dozen vaccinations normal for children her age.

The trial judge ruled in favor of the state, but the latest ruling went in the mother’s favor.

The Court of Appeals majority noted that Arizona law lets parents seek religion-based exemptions to the immunization requirement for children attending child-care facilities and public schools.

“Arizona’s immunization statutes expressly honor and empower that particular parental interest,” Judge Peter J. Eckerstrom wrote in the majority ruling Diana H. v. Arizona Department of Economic Security.

Arizona law says some parental rights remain after a child is ruled temporarily dependent, but the law doesn’t specify those rights.

The Court of Appeals majority said it took some guidance from a U.S. Supreme Court ruling that found that Wisconsin needed to provide a compelling interest to deny a parent’s request to exempt children from that state’s compulsory school attendance law on religious grounds.

The state didn’t challenge the mother’s religion-based objection to immunizations as insincere, instead arguing that the mother’s request for an exemption was invalid on several grounds.

The state argued that the child’s best interest was paramount under state law, the daughter already was in protective custody when the mother requested the exemption, and exemptions should not apply in cases involving parents incapable of proper and effective parenting.

The Court of Appeals majority said the state “has an interest of the highest order in the health and welfare of its children” but also needs to weigh that interest against “other societal values” such as the mother’s assertion of religious-freedom rights.

State officials didn’t prove a compelling interest to override the mother’s religious-liberty rights, which remain even if a child is taken into state custody for his or her well-being, the majority said.

The majority also said that “fostering a parent’s continued engagement in the upbringing of the dependent child” goes hand in hand with the CPS’ stated goal of reuniting families, including the one in the immunization case, Eckerstrom wrote.

Judge Philip G. Espinosa’s dissent said requiring the state to find a compelling interest for immunizations of children in CPS cases “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.”