A.B. v. E.K. (In re E.E.B.)
| Decision Date | 23 November 2022 |
| Docket Number | 124,937 |
| Parties | In the Interest of E.E.B., A Minor Child, By and Through Her Next Friend, v. E.K., Appellee. A.B., Appellant, |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Riley District Court; JOHN F. BOSCH, judge.
Todd A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for appellant.
Roger L. Unruh, of McKone &Unruh, Chartered, of Junction City for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
In a paternity action brought by A.B., as the mother of E.E.B., a girl born in early 2016, the Riley County District Court found E.K. to be the child's father and entered a support order and a parenting plan that remain in place. A.B. and E.K.'s handling of their parental rights and obligations apparently has been marked by recurrent friction. At the center of this litigation, E.K. wanted E.E.B. vaccinated against COVID-19 in late 2021; A.B. did not. Called upon to settle the conflict, the district court relied on a dispute resolution mechanism the parents had previously accepted requiring them to resolve any disagreements over vaccinations, including for COVID-19, by deferring to the recommendation of the child's regular pediatrician. The district court ordered E.E.B. be vaccinated, consistent with the parents' accepted process and the physician's recommendation. A.B. now challenges the ruling as a violation of her rights protected in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The argument rests on a constitutional overreach and, therefore, fails. We affirm the district court's order.
The district court stayed its order if A.B. timely appealed. She has, so we presume E.E.B. has not been vaccinated in conformity with the stay. Having affirmed the district court we dissolve the stay. See Yeasin v. University of Kansas, 51 Kan.App.2d 939, 955, 360 P.3d 423 (2015) (appellate court affirms district court's substantive ruling and dissolves district court's stay). The dissolution will be effective upon the conclusion of the appellate process, assuming our decision is not otherwise altered during the remainder of that process. See Supreme Court Rule 8.03(k)(1) (2022 Kan. S.Ct. R. at 61) (until mandate issues, Court of Appeals opinion may be cited as merely persuasive authority).
The district court found E.K. to be E.E.B.'s father in April 2017 and entered related support and parenting orders. Under Supreme Court Rule 909 (2022 Kan. S.Ct. R. at 628), the district court appointed a lawyer from Lawrence as a parenting coordinator in June 2021 to assist A.B. and E.K. in meeting their duties outlined in the parenting plan for E.E.B. In the appointment order, the district court determined a parenting coordinator to be appropriate, at least in part, because A.B. and E.K. "are consistently in conflict" over "issues related" to E.E.B mirroring grounds in Rule 909. The order provided that written recommendations of the parenting coordinator would become binding and, thus, effectively directives of the district court unless either parent filed an objection within 14 days of the recommendation. The order identified the "health care management" of E.E.B. as one of the areas within the parenting coordinator's purview.
On December 13, 2021, the parenting coordinator made written recommendations on a variety of matters, including vaccinations for E.E.B. That particular recommendation states:
(Emphasis added.)
The parenting coordinator emailed the recommendations to the lawyers for A.B. and E.K. that day and filed them with the district court the next day. Neither A.B. nor E.K. objected to the recommendation on vaccinations.
Two weeks after receiving the parenting coordinator's recommendations, E.K. filed a motion to have E.E.B. vaccinated against COVID-19, citing the position of the child's pediatrician favoring vaccination. On January 5, A.B. filed a response to the motion relying on Brandeis brief material on the potential side effects of COVID-19 vaccinations and the comparatively low incidence of serious illness among young children from COVID-19. See Black's Law Dictionary 232 (11th ed. 2019) (defining "Brandeis brief" as one "that makes use of social and economic studies"). A.B. did not dispute that E.E.B.'s pediatrician recommended the child be vaccinated; nor did she offer expert opinion from another medical doctor opposing vaccination. Essentially, A.B. provided her own risk-benefit assessment of vaccinating E.E.B. that differed from the pediatrician's.
On January 7, the district court held a brief hearing during which the lawyers made arguments supplementing their written submissions. Neither A.B. nor E.K. asked to submit additional evidence. The district court issued a short order three days later granting E.K.'s motion for vaccination and staying the ruling if there were a timely appeal. The district court relied on the dispute resolution process the parenting coordinator crafted addressing vaccinations and the recommendation from E.E.B.'s pediatrician that the child be vaccinated against COVID-19. A.B. has duly appealed.
On appeal, A.B. contends the district court violated her constitutionally protected due process rights. The argument seems to encompass both procedural and substantive due process protections without clearly delineating between them. We consider both. And as we have already stated, A.B. can point to no constitutional deprivation.
In general terms, substantive due process protects a limited number of fundamental rights not expressly enumerated in the United States Constitution because they are essential components of an ordered, civilized society and have been recognized as such in our national history and tradition. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Palko v Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Taylor v. Kansas Dept. of Health &Environment, 49 Kan.App.2d 233, 244, 305 P.3d 729 (2013). As A.B. points out, parents have a substantive due process right to raise and educate their children. Washington, 521 U.S. at 720; Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). As with other enumerated and unenumerated constitutional rights, the freedom to raise one's child is not absolute and may be subject to appropriate governmental limitations. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944); PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197-98 (10th Cir. 2010). The government retains a parens patriae interest in the welfare of children within its borders and may otherwise act for the public good in ways that curtail or override some parenting decisions. Santosky, 455 U.S. at 766; Prince, 321 U.S. at 166-67.
Those governmental intrusions include requiring potentially lifesaving medical treatment of a particular child and compulsory vaccination laws fostering the public health and welfare systemically. See Jacobson v. Massachusetts, 197 U.S. 11, 30, 39, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (upholding constitutionality of mandatory vaccination statute including children unless certified to be medically unfit by licensed physician); Goe v. Zucker, 43 F.4th 11, 31-32 (2d Cir. 2022) (); PJ ex rel. Jensen, 603 F.3d at 1197-98 (). In limited circumstances, the government may terminate the parentchild relationship to protect a child from continuing physical or emotional abuse or other exceptionally deleterious conditions. See K.S.A. 38-2269; Santosky, 455 U.S. at 747-48.
In making her argument to us, A.B. fails to acknowledge the jurisprudential nuance attached to the substantive due process right to parent one's child and, instead, presents the right as if it were virtually impregnable. And, in turn, she submits the district court's order deferring to the dispute resolution mechanism for E.E.B's vaccinations violates that right. The argument fails on several fronts.
First of course, the right is not absolute. Second, statutes or other governmental directives requiring the vaccination of children in various circumstances do not violate the parents' substantive due process right. That authority supports the result here, at least by analogy. But the gulf between the district court's order and the vaccination of E.E.B. is even wider, accentuating the lack of any substantive due process violation. The outcome here was not the product of a governmental directive independently mandating that E.E.B. be vaccinated-state action that would intrude upon the parents' due process right, although not necessarily in a prohibited way. Rather, the district court simply used the reasonable method A.B. and E.K. had already accepted for...
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