Diana H. v. Rubin

• Court: Arizona Court of Appeals
• Writing for the Court: Eckerstrom
• Citation: Diana H. v. Rubin, 171 P.3d 200, 217 Ariz. 131 (Ariz. App. 2007)
• Decision Date: 21 November 2007
• Docket Number: No. 2 CA-SA 2007-0085.,2 CA-SA 2007-0085.
• Parties: DIANA H., Petitioner, v. Hon. Stephen M. RUBIN, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Arizona Department of Economic Security, Real Party in Interest.

171 P.3d 200

217 Ariz. 131

DIANA H., Petitioner, v. Hon. Stephen M. RUBIN, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Arizona Department of Economic Security, Real Party in Interest.

No. 2 CA-SA 2007-0085.

Court of Appeals of Arizona, Division 2, Department B.

November 21, 2007.

Judge Law Firm by Jeffrey Paul Judge, and Nuccio & Shirly P.C. by Jeanne Shirly, Tucson, Attorneys for Petitioner.

Terry Goddard, Arizona Attorney General by Michelle R. Nimmo, Tucson, Attorneys for Real Party in Interest.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 At issue in this special action is whether the parent of a child who has been adjudicated dependent has the right to prohibit state-directed immunization of the child on the ground of the parent's religious belief. Petitioner Diana H. contends the respondent judge abused his discretion in granting a motion filed by the real party in interest, the Arizona Department of Economic Security (ADES), requesting authority to consent to immunizations for Diana's nine-month-old daughter, Cheyenne. We accept special action jurisdiction because Diana has no "equally plain, speedy, and adequate remedy by appeal," Rule 1(a), Ariz. R.P. Spec. Actions, and because the petition raises a question of law that is "of statewide importance and of first impression," ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶ 9, 83 P.3d 1103, 1107 (App.2004). Because we conclude the dependency adjudication did not extinguish Diana's right to determine the religious upbringing of her child and because the state has not articulated a compelling interest in immunizing Cheyenne sufficient to override Diana's objection to the procedure, we grant relief.

Background

¶ 2 Diana did not contest the determination of dependency or dispute the facts contained in an amended dependency petition filed by ADES. According to the amended petition, the Child Protective Services (CPS) division of ADES took temporary physical custody of Cheyenne on March 26, 2007, and placed her in foster care. Cheyenne's doctor had expressed concern that the infant was "behind developmentally due to lack of proper nutrition." The petition also alleged that Diana "appear[ed] unable to protect" Cheyenne from her father, who had been arrested for domestic violence at the family's residence in early March 2007 and for assaulting Diana the following week. Although Diana had moved to a domestic violence shelter, she continued to deny that any episodes of domestic violence had occurred, and she was eventually asked to leave the shelter. Diana also acknowledged, but denied, reports that she abuses alcohol.

¶ 3 After CPS had taken temporary custody of Cheyenne but before the dependency adjudication, Diana had told CPS she objected on religious grounds to having Cheyenne immunized. Diana also presented ADES with a written request that Cheyenne be exempted, based on Diana's religious beliefs, from the immunization requirements that otherwise apply to children enrolled in Arizona child-care facilities. See Ariz. Admin. Code R9-5-305(A) (child-care facility may not permit attendance of child without "written immunization record or an exemption affidavit"); see also A.R.S. § 36-883(C) (Arizona Department of Health Services (ADHS) rules regarding immunization of children cared for in a child-care facility "shall include appropriate exemptions for children whose parents object on the ground that it conflicts with the tenets and practices of a recognized church or religious denomination of which the parent or child is an adherent or member"). As a result, ADES moved the court for authority to consent to immunizations for Cheyenne, over Diana's objection, on the ground that they were medically necessary and in Cheyenne's best interests.

¶ 4 On May 30, 2007, the respondent judge adjudicated Cheyenne a dependent minor; awarded legal care, custody, and control of Cheyenne to ADES; directed that she remain in her current foster placement; and affirmed reunification with Diana as the case plan goal. Based on an agreement between Diana and ADES, the judge also scheduled an evidentiary hearing on the issue of immunizations.

¶ 5 At that hearing, ADES first called Cheyenne's CPS case manager. He testified that the child-care center Cheyenne had been attending, where her foster mother was also employed, was requiring evidence of immunization as a condition of Cheyenne's continued attendance.¹ He opined that it was in Cheyenne's best interests to remain at that facility "[b]ecause she [had] become accustomed to that day care [and] because the foster parent works there as well and has daily contact with the child."

¶ 6 ADES then called Cheyenne's pediatrician, Mimi Peterson, who testified the purpose of immunizing children during their first year of life is "to prevent illnesses that are threats to the health of children in that age group." Peterson stated that immunizations are medically necessary to avoid a "significant risk to the health and sometimes the life of [a] child." She noted that Cheyenne had not yet received any immunizations and that, ordinarily, a child of her age would have received fifteen scheduled immunizations against hepatitis B, haemophilus influenzae type b(Hib), tetanus, diphtheria, pertussis, rotavirus, polio, and pneumococcus.

¶ 7 When asked if any of these illnesses were potentially fatal for infants, Peterson testified that, currently, the highest risk for children in the local community is probably pertussis, commonly referred to as "whooping cough." She reported having seen several dozen cases of pertussis in her pediatric practice the previous winter and explained that pertussis is "fairly widespread in the teenager and adult community." As a result, an infant who has not been immunized against pertussis risks exposure to the bacteria "in the grocery store, in the mall, any place you're likely to encounter [the] general population." According to Peterson, while adults and teenagers face no significant health risk from the illness and may regard it as "just a prolonged cough that's a nuisance," the life and health of an infant who contracts pertussis are "at high risk."

¶ 8 Addressing the risks posed by the other diseases against which infants are ordinarily immunized, Peterson stated that the second greatest risk would be from Hib, the bacterial cause of meningitis, followed by pneumococcus, rotavirus, and tetanus. Peterson testified that, during the past year, none of her patients had contracted Hib or tetanus; many had had ear infections caused by pneumococcus, but none had suffered the more serious complications that can occur; and about forty had become ill with rotavirus.

¶ 9 At the close of the evidence presented by ADES, Diana asked if the court intended to "inquire . . . about the quality of the religious belief or [if it] accepts that the exemption is valid." In response, ADES argued that Diana's request for an exemption was invalid because Cheyenne was already in protective custody when Diana executed the form. After ADES conceded it did not "have any evidence suggesting that [Diana's] religio[us] belief isn't sincere," the court declined to hear testimony on the issue. Diana closed the evidentiary portion of the hearing with an offer of proof that, if called as a witness, an assistant to her attorney would testify that she had contacted representatives of thirty-four child-care facilities in the community and all but three had indicated they would accept immunization exemptions for a child of Cheyenne's age.

¶ 10 The respondent judge issued a written ruling granting the state's motion, explaining his reasoning as follows:

The Court bases its ruling on the medical testimony of Dr. Peterson as well as the Court's finding that the Mother's request for exemption was invalid, having been executed after the Court had ordered that [ADES] have temporary legal custody and physical custody of the minor.

The court finds that the immunizations are in the child's best interest and are necessary for the child's safety.

¶ 11 Diana then petitioned this court for special action relief. At her request, we have stayed the respondent judge's order during the pendency of these proceedings.

Discussion

¶ 12 It is beyond debate that parents have a fundamental liberty interest protected by the Fourteenth Amendment "in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982); Kent K. v. Bobby M., 210 Ariz. 279, ¶ 24, 110 P.3d 1013, 1018 (2005); In re Cochise County Juvenile Action No. 5666-J, 133 Ariz. 157, 161, 650 P.2d 459, 463 (1982). Concomitant with that interest, and independently protected by the Free Exercise Clause of the First Amendment, is the right of parents to guide the religious upbringing of their children. Wisconsin v. Yoder, 406 U.S. 205, 213-14, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972).

¶ 13 But those rights are not absolute. "The state has an interest in the welfare and health of children." Cochise County No. 5666-J, 133 Ariz. at 161, 650 P.2d at 463. "If the interest of the state is great enough — that is, if the welfare of the child is seriously jeopardized — the state may act and invade the rights of the parent and the family." Id. Here, through the adjudication of dependency, a court has already determined that the state's interest in Cheyenne's health and welfare entitled the state, through its agency, ADES, to temporarily invade Diana's right to physical and legal custody of her child. Diana has not disputed the propriety of the dependency determination.

¶ 14 She maintains, however, that the adjudication of dependency awarding ADES temporary legal custody of Cheyenne did not extinguish her status as a parent nor all of her parental rights. Rather, Diana contends that, pursuant to statute she retains "residual parental rights," including the right to determine the religious...