Diana H. v. Arizona Department of Economic Security

FILED BY CLERK
IN THE COURT OF APPEALS NOV 21 2007
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

DIANA H., )
)
Petitioner, )
)
v. )
) 2 CA-SA 2007-0085
HON. STEPHEN M. RUBIN, Judge of ) DEPARTMENT B
the Superior Court of the State of )
Arizona, in and for the County of Pima, ) OPINION
)
Respondent, )
)
and )
)
ARIZONA DEPARTMENT OF )
ECONOMIC SECURITY, )
)
Real Party in Interest. )
)

SPECIAL ACTION PROCEEDING

Pima County Cause No. 18180900

JURISDICTION ACCEPTED; RELIEF GRANTED

Judge Law Firm
By Jeffrey Paul Judge Tucson

and

Nuccio & Shirly P.C.
By Jeanne Shirly Tucson
Attorneys for Petitioner
Terry Goddard, Arizona Attorney General Tucson
By Michelle R. Nimmo Attorneys for Real Party in Interest

E C K E R S T R O M, 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

2
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,

3
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

1
The basis for an Arizona child-care facility’s purported refusal to accept an
exemption affidavit in lieu of an immunization record is unclear. ADES asserted in its
motion that Arizona child-care facilities are not required “to enroll children who are
permanently exempt from the immunization requirement.” But that assertion is not supported
by relevant provisions in the Arizona Administrative Code and appears inconsistent with the
mandate of § 36-883(C). See Ariz. Admin. Code R9-5-305(A); R9-6-705(D) (child having
documented exemption from immunization shall be deemed “in compliance with an
immunization requirement”).

4
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

5
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.

6
 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 (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 (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

7
rights,” including the right to determine the religious affiliation of her child and, therefore,

the right to decline, in conformity with those religious beliefs, to have Cheyenne immunized.

¶15 The statute articulating the comparative rights of the state and parent upon an

adjudication of dependency is A.R.S. § 8-531(5). Pursuant to that statute, when awarded

legal custody of a dependent child, ADES acquires

a status embodying all of the following rights and
responsibilities:

(a) The right to have physical possession of the child.

(b) The right and the duty to protect, train and discipline
the child.

(c) The responsibility to provide the child with adequate
food, clothing, shelter, education and medical care, provided
that such rights and responsibilities shall be exercised subject to
the powers, rights, duties and responsibilities of the guardian of
the person 2 and subject to the residual parental rights and
responsibilities if they have not been terminated by judicial
decree.3

Id. (emphases added). Thus, the state’s responsibility to provide medical care for a

dependent child is expressly “subject to” a body of parental rights and duties retained by the

parent.

2
A child determined to be dependent is a ward of the juvenile court. In re Maricopa
County Juv. Action No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994).
3
Diana’s residual parental rights have not been terminated, and the juvenile court
approved a case plan of family reunification.

8
¶16 Our legislature has not defined the phrase “residual parental rights,” nor has

any published Arizona decision considered its meaning. But several other states have

expressly defined the phrase, when used in the same context, to include a parent’s right to

determine the religious affiliation of a child. See, e.g., Ala. Code § 12-15-1(24) (1975);

Colo. Rev. Stat. Ann. § 19-1-103(93) (West 1999); Ohio Rev. Code Ann. § 2151.011(A)(46)

(Lexis Nexis 2007); Va. Code Ann. § 16.1-228 (1999). And ADES conceded during

appellate oral argument that the phrase “residual parental rights” encompasses a parent’s

right to determine the religious upbringing of his or her child.

¶17 Moreover, we understand our legislature’s use of the term “residual” to denote

“that which remains.” See, e.g., Webster’s Third New Int’l Dictionary 1931 (1971) (defining

“residual” as that which is “remaining after a part is taken”). As used in § 8-531(5), the term

suggests the legislature intended that parents would retain those rights not expressly acquired

by ADES upon an adjudication of dependency. Neither § 8-531(5) nor any other provision

grants the state affirmative authority to make decisions concerning the religious upbringing

of a dependent child. Nor could the state assume any role in choosing specific religious

instruction for a child during a dependency proceeding without running afoul of federal and

state constitutional provisions. See U.S. Const. amends. I; XIV, § 1 (state may not establish

a religion); Ariz. Const. art. II, § 12 (“No public money . . . shall be appropriated for or

applied to any religious worship, exercise, or instruction, or to the support of any religious

establishment.”). We conclude, therefore, that a dependency determination does not

9
extinguish a parent’s right to control the religious upbringing of his or her child because, by

the terms of the statute defining “legal custody,” the right never passes to the state.

¶18 But that conclusion does not end our inquiry. Section 8-531(5) gives the legal

custodian of a dependent child the responsibility “to provide the child with . . . medical care.”

Indeed, ADES is expressly required to “provide comprehensive medical . . . care, as

prescribed by rules of [ADES], for each child . . . [p]laced in a foster home.” A.R.S.

§ 8-512(A)(1). And, in § 8-512(B)(1)(a), the legislature has directed that such care “may

include, but is not limited to . . . [a] program of regular health examinations and

immunizations including as minimums . . . [v]accinations to prevent mumps, rubella,

smallpox and polio.” According to ADES rules, “[t]he goal of the Comprehensive

Medical/Dental Program for Foster Children is to provide . . . full coverage for those medical

and dental services which are necessary to the achievement and maintenance of an optimal

level of physical and mental health for children in foster care.” Ariz. Admin. Code

R6-5-6001. For those reasons, ADES is correct that § 8-512 explicitly authorizes it to

“consent to and provide immunizations to a dependent child in foster care.”

¶19 This case, then, requires us to address the conflict between the state’s particular

interest in immunizing children to promote their health and welfare, and Diana’s

constitutional and statutory right to direct the religious upbringing of her child. “[W]hen

discussing religious freedoms and the state’s interest in providing for the welfare of children,

the ‘accommodation between these freedoms [of religion] and an exercise of state authority

10
always is delicate.’” Cochise County No. 5666-J, 133 Ariz. at 163, 650 P.2d at 465, quoting

Prince v. Massachusetts, 321 U.S. 158, 165, 64 S. Ct. 438, 441 (1944) (second alteration in

Cochise County No. 5666-J).

¶20 The United States Supreme Court has provided some guidance for performing

that delicate task. In Yoder, an Amish father sought to exempt his children from a Wisconsin

compulsory-school-attendance law, arguing that school attendance after eighth grade

interfered with central tenets of his family’s faith. 406 U.S. at 207-13, 92 S. Ct. at 1529-32.

Although acknowledging the state’s strong and traditional interest in providing education,

the Court found that interest “not totally free from a balancing process when it impinges on

fundamental rights and interests, such as those specifically protected by the Free Exercise

Clause of the First Amendment, and the traditional interest of parents with respect to the

religious upbringing of their children.” Id. at 213-14, 92 S. Ct. at 1532.

¶21 The Court in Yoder did not articulate a precise formula for weighing a valid

state interest against those parental rights. But it emphasized that “only those interests of the

highest order and those not otherwise served can overbalance legitimate claims to the free

exercise of religion.” Id. at 215, 92 S. Ct. at 1533. Thus, the Court suggested that a state

must demonstrate a compelling interest to justify overriding the combination of religious and

parental rights involved. Id. at 221, 92 S. Ct. at 1536 (addressing whether state’s interest in

compulsory education “is so compelling that even the established religious practices of the

Amish must give way”).

11
¶22 Although our dissenting colleague suggests Yoder is distinguishable on its facts

and therefore its test does not apply here, our own supreme court has utilized that test in the

context of similar, if not identical, state and parental interests. See Cochise County No.

5666-J, 133 Ariz. at 163, 650 P.2d at 465 (applying Yoder in “balancing the interests of

religious freedom” against the state’s interest in medical care for children ). More recently,

the United States Supreme Court has acknowledged that the state must assert a compelling

interest when an exercise of its authority directly conflicts with the combination of religious

and parental rights. See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494

U.S. 872, 881, 110 S. Ct. 1595, 1601 (1990) (characterizing free-exercise claim coupled with

parenting right as hybrid situation retaining heightened protection).

¶23 In applying the Yoder test here, we do not dispute that, as a general proposition,

a state has an interest of the highest order in the health and welfare of its children. In re

Maricopa County Juv. Action No. JD-6123, 191 Ariz. 384, 392, 956 P.2d 511, 519 (App.

1997) (“[T]he state and its citizens have a compelling state interest in ensuring that all

children in Arizona are provided with appropriate care and are free from parental abuse or

neglect.”); see also State v. Berger, 212 Ariz. 473, ¶ 18, 134 P.3d 378, 382 (2006) (state’s

compelling interest in mental and physical health of children self-evident), citing Osborne

v. Ohio, 495 U.S. 103, 109, 110 S. Ct. 1691, 1696 (1990). When a state expresses such an

interest through particular legislation, its policy judgments are entitled to judicial deference.

Id. ¶¶ 59-60 (Hurwitz, J., concurring). Within constitutional bounds, it is for the legislature,

12
not the courts, to assess the comparative importance of public health initiatives, such as

immunization requirements, when those initiatives arguably compromise other social values,

such as those Diana asserts. Consequently, when a state exercises its authority to protect “a

child’s right to good health” and that exercise directly conflicts with a parent’s religious

rights, the parent’s rights must generally “give way.” Cochise County No. 5666-J, 133 Ariz.

at 163, 650 P.2d at 465.

¶24 Arizona has not so exercised its authority in the context of immunization

policy, however. Our legislature has neither expressly nor implicitly articulated any

compelling interest in immunizing children over the religious objections of their parents. To

the contrary, in legislation directly applicable to the competing interests here, our state has

struck the balance in favor of the parent.

¶25 The record demonstrates that ADES has sought to immunize Cheyenne, in part,

because the child-care center she attends, where her foster mother also works, has been

insisting that Cheyenne be immunized as a condition of her continued attendance. Yet our

legislature has specifically provided that children need not be immunized to attend child-care

facilities if their “parents object on the ground that [immunization] conflicts with the tenets

and practices of a recognized church or religious denomination of which the parent or child

is an adherent or member.” § 36-883(C). The legislature has similarly qualified its interest

in the immunization of children attending public schools, whose parents may exempt their

13
children from immunization based on any “personal beliefs.” A.R.S. § 15-873(A)(1).4 Thus,

far from asserting a state interest in immunization sufficiently compelling as to overcome

Diana’s right to determine the religious upbringing of her child, Arizona law instead

repeatedly honors faith-based parental objections to immunization.

¶26 ADES maintains that these statutes do not necessarily reflect a legislative

judgment that Diana’s interest should outweigh the state’s interest in immunization.

Specifically, ADES contends the legislature would not have struck the same balance in favor

of parents like Diana who have been judicially determined to be temporarily incapable of

exercising “proper and effective parental care and control” of her child. A.R.S. § 8-201(13).

In the same vein, our dissenting colleague suggests we erroneously read the immunization

and dependency statutes in pari materia, in his view “essentially a mixing of apples and

oranges.”

¶27 But we can find no language whatever in Arizona’s dependency or

immunization statutes suggesting that the few residual rights of a parent whose child has

4
Section 15-873(A)(1) provides that documentary proof of immunization is not
required for a child to be admitted to school if

[t]he parent . . . submits a signed statement to the school
administrator stating that the parent or guardian has received
information about immunizations provided by the department of
health services and understands the risks and benefits of
immunizations and the potential risks of nonimmunization and
that due to personal beliefs, the parent or guardian does not
consent to the immunization of the pupil.

14
been adjudged dependent should carry any less weight than those of other parents.5 Instead,

through the language it chose to use in § 8-531(5), our legislature has preserved Diana’s

continuing right to determine Cheyenne’s religious upbringing notwithstanding the

adjudication of dependency. As discussed, the statute provides that, even in dependency

proceedings, ADES’s right and duty to provide the child medical care is “subject to” the few

remaining rights of the parent. § 8-531(5)(c).

¶28 And, we need not read the dependency and immunization statutes in pari

materia in order to conclude that § 8-531(5)(c) preserves Diana’s right to determine the

religious upbringing of her child. Rather, § 8-531(5)(c), standing alone, confers an

entitlement to exercise that right in the context of other relevant Arizona statutes. As noted,

Arizona’s immunization statutes expressly honor and empower that particular parental

interest. Even in the child dependency context, our legislature has elevated the religious

rights of a parent above its own interest in assuring children access to conventional medical

care. See A.R.S. § 8-201.01(1) (“A child who in good faith is being furnished Christian

5
We do not dispute our dissenting colleague’s undoubtedly correct observation that
our legislature is entitled to make appropriate legal distinctions between “fit” and “unfit”
parents, Troxel v. Granville, 530 U.S. 57, 67-69, 120 S. Ct. 2054, 2061-62 (2000), and to
define its “in loco parentis” interest as it sees fit. We also agree that the Arizona legislature
could require immunization of all children without exception. See Prince v. Massachusetts,
321 U.S. 158, 166-67, 64 S. Ct. 438, 442 (1944). But we address here not the lawful
boundaries of hypothetical legislation but the intent actually conveyed by our currently
applicable statutes.

15
Science treatment by a duly accredited practitioner shall not, for that reason alone, be

considered to be an abused, neglected or dependent child.”).

¶29 During oral argument, ADES suggested the Yoder test should not apply here

because Diana has not made a concrete showing, equivalent to that made by the Amish parent

in Yoder, that allowing Cheyenne to be immunized would substantially insult the tenets and

practices of her family’s faith. We disagree. The record is clear that Diana objected to the

immunization on a religious ground and that she had submitted the appropriate form asserting

her intent to exempt Cheyenne from immunization on that ground. Without contradiction or

objection, Diana’s counsel also asserted below that, according to her faith, immunization

involves polluting a person’s blood “with something that’s inappropriate.”

¶30 When Diana offered to present testimony about the specific “quality” of her

religious faith, ADES responded that it had no evidence suggesting her religious beliefs were

insincere. In context, we view this as a concession by ADES that Diana’s objection to

immunizing Cheyenne stemmed from bona fide religious views Diana holds. Moreover, this

court is not equipped with any principle of law or logic to weigh the relative importance of

the religious principles involved here against those asserted in Yoder. See Smith, 494 U.S.

at 887, 110 S. Ct. at 1604 (“Judging the centrality of different religious practices [to a faith]

is akin to the unacceptable ‘business of evaluating the relative merits of differing religious

claims.’”), quoting United States v. Lee, 455 U.S. 252, 263 n.2, 102 S. Ct. 1051, 1058 n.2

(1982) (Stevens, J., concurring).

16
¶31 As ADES correctly asserts, under Arizona’s statutory scheme, it is the best

interests of the child, not the parent, that are paramount in a dependency proceeding. See

A.R.S. § 8-843(A) (“At any dependency hearing, the court’s primary consideration shall be

the protection of a child from abuse or neglect.”); see also A.R.S. § 8-845(B) (“In reviewing

the status of the child and in determining its order of disposition, the court shall consider the

health and safety of the child as a paramount concern . . . .”). But the Department overlooks

that the pertinent statutes also embody a legislative judgment that a child’s interests are best

served by the presumptive goal of reunifying parent and child. See § 8-845(C) (“In

reviewing the status of the child, the court, insofar as possible, shall seek to reunite the

family.”); see also § 8-843(E)(1) (at initial dependency hearing “the court shall order the

department to make reasonable efforts to provide services to the child and parent to facilitate

the reunification of the family”); A.R.S. § 8-812(C) (establishing treatment fund “with a

primary goal of facilitating family preservation or reunification, including, if necessary,

services that maintain the family unit in a substance abuse treatment setting”). The

presumptive goal of family reunification in turn suggests a state interest in fostering a

parent’s continued engagement in the upbringing of the dependent child to the extent

possible, even after legal custody of the child has passed to the state.

¶32 Moreover, the medical procedure at issue, immunization, is irreversible. For

that reason, we think it unlikely that our legislature would have viewed the presumptively

temporary legal status of dependency as pivotal in weighing the importance of a non-urgent,

17
irreversible procedure against the parent’s long-term interest in raising a child and

determining the child’s religious upbringing. Certainly, we cannot assume that such a

temporary status would necessarily alter the legislative judgment clearly expressed in

Arizona’s general immunization statutes that a parent’s religious rights outweigh the state’s

interest in the immunization of children.6

¶33 As the United States Supreme Court has observed:

The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate
simply because they have not been model parents or have lost
temporary custody of their child to the State. Even when blood
relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life.

Santosky, 455 U.S. at 753, 102 S. Ct. at 1394-95. Because Arizona’s statutory scheme for

protecting the welfare of abused and neglected children recognizes that interest, both by

expressly preserving residual parental rights and by promoting the eventual reunification of

child and parent, we must reject ADES’s suggestion that those very statutes implicitly reflect

a compelling state interest in immunizing a dependent child over the parent’s religious

objections.

¶34 In his dissent, our colleague expresses concern that our holding will enable

parents of dependent children to meddle in ADES’s efforts to pursue the best interests of

6
Obviously some dependencies do culminate in the permanent termination of the
parent-child relationship, an event that extinguishes any remaining parental rights. See
A.R.S. § 8-539. In those cases, nothing prevents the state from arranging to have the child
immunized after the parent’s rights have been severed.

18
those children. However, our supreme court has instructed that, when courts mediate the

delicate accommodation between state interests and the constitutional rights of the parent,

“[e]ach case must by necessity be decided on its own facts.” Cochise County No. 5666-J,

133 Ariz. at 164, 650 P.2d at 466 (parent’s mere refusal, on religious ground, to seek medical

attention for her children insufficient basis for dependency adjudication). Contrary to our

dissenting colleague’s assertion, ADES presented no evidence that permitting Cheyenne to

remain unimmunized posed an imminent risk to her health. Moreover, had the record

demonstrated that Cheyenne’s specific need for immunization was greater than that of the

average child, we could no longer rely on our state’s general immunization policy in gauging

the stature of the state interest involved. And, we follow our supreme court’s lead in

emphasizing that, under most circumstances, the state’s interest in safeguarding the health

and welfare of children will override a parent’s constitutionally protected interest in

determining the child’s religious upbringing. Id. (“[W]e emphasize that if we were faced

with an actual illness of one of the . . . children, the scales would have tipped and religious

freedoms would be forced to yield.”).

¶35 For example, we would not hesitate to find a compelling state interest had the

Department shown that Cheyenne was especially vulnerable to the diseases prevented by

immunization, due perhaps to malnutrition or some other medical condition.7 But the

7
Dr. Peterson testified that Cheyenne was in “[e]xcellent health” at the time of her last
checkup and “was in the 50th to 75th percentile” for weight.

19
evidence addressed only the health risks common to all children that are preventable by

immunization. We must assume the legislature considered those risks when it drafted

Arizona’s immunization statutes to include the exemptions for religious beliefs.8 As we have

observed, those statutes incorporate a policy decision to honor parental rights—a decision

we have no authority to second-guess.

¶36 Relying on In re Karwath, 199 N.W.2d 147 (Iowa 1972), and In re Stratton,

571 S.E.2d 234 (N.C. App. 2002), ADES argues that courts of other states have come to a

different conclusion when weighing the state’s interest in the welfare of a dependent child

against a parent’s faith-based objections to a medical procedure. But those cases involved

different governmental and parental interests than those asserted here and are, therefore,

readily distinguishable.

¶37 In Karwath, the Iowa Court of Appeals weighed the medical needs of three

dependent children for tonsillectomies against their father’s faith-based objection to the

procedure. 199 N.W.2d at 149. With little analysis, the court tersely concluded that,

“[w]here the best interests of children are involved[,] even parental preference based upon

asserted religious belief may be required to give way.” Id. at 150. But, the Iowa court was

unconstrained by legislation, like Arizona’s, expressly subordinating the state’s health and

8
In considering those risks, we must also assume that the legislature contemplated any
special risks posed to infants, given that it embedded an exemption for religious beliefs in
its immunization scheme relating to child-care facilities, an exemption that necessarily
applies to both infants and children.

20
welfare interest in the medical procedure at issue to the father’s religious interest in the

upbringing of his children—the central consideration here. Moreover, the evidence clearly

established that the surgeries were necessary “with reasonable medical certainty to restore

and preserve the health of these wards of the State.” Id. (emphasis added). Here, as seen,

there was no showing that Cheyenne’s need for immunization was any greater than that of

a nondependent child.

¶38 In Stratton, the court addressed parental religious objections to a dependent

child’s immunization under a general immunization statute similar to Arizona’s. 571 S.E.2d

at 236. But there the parents did not claim to possess any residual parental rights under North

Carolina dependency law, and the court rejected their contentions on the ground that all such

rights had been extinguished by the dependency determination. Id. at 237-38 (“Once it has

been determined that a parent is unfit or has neglected his child, the parent loses his decision-

making ability as of right.”). By contrast, Diana has an interest of constitutional stature,

expressly preserved by Arizona statute, to direct the religious upbringing of her child. Thus,

while we generally agree with the reasoning in both Karwath and Stratton, neither case

provides much assistance in resolving the issue here.

CONCLUSION

¶39 Generally, when the state exercises authority to direct compliance with a

medical procedure to promote the health and welfare of a dependent child, it asserts a

compelling interest in the child’s well-being sufficient to override the parent’s right to direct

21
the religious upbringing of his or her child. However, we must evaluate each case, and the

state interest involved, on its own facts. When, as here, the state has qualified its in loco

parentis status in dependency so as to preserve a specific parental right and has, in other

legislation, subordinated its interest in a particular medical procedure to that parental right,

we exceed our role if we disregard those legislative determinations, no matter how wise or

foolish we may consider them to be. Because Arizona has not expressed a compelling state

interest in overriding Diana’s continuing right to direct the religious upbringing of her child

while Cheyenne remains dependent, see Yoder, 406 U.S. at 215, 92 S. Ct. at 1533, we vacate

the juvenile court’s order authorizing ADES to have Cheyenne immunized.

____________________________________
PETER J. ECKERSTROM, Presiding Judge

CONCURRING:

____________________________________
GARYE L. VÁSQUEZ, Judge

E S P I N O S A, Judge, dissenting.

¶40 I respectfully disagree with the majority’s result and reasoning because, in my

view, it effectively elevates the rights of the irresponsible parent over the needs of an

innocent child and justifies it by patching together constitutional doctrines and statutes that

22
have no bearing on the situation at hand. As the majority acknowledges, if somewhat

hollowly, even fundamental religious rights are not absolute when it comes to the best

interests of a child.

¶41 At the outset, I appreciate the majority’s concern that ADES’s custody of

Cheyenne is temporary and the case plan goal is reunification. But Cheyenne could remain

in ADES custody for more than a year until permanent custody is resolved, see A.R.S.

§§ 8-533(B)(8)(b) and 8-862(A)(2) and (C), and no evidence in the record supports the

majority’s conclusion that her immunization is “non-urgent,” ¶ 32, supra. To the contrary,

the evidence is undisputed that permitting Cheyenne to remain “unimmunized poses

significant risks to the health and sometimes the life of the child,” even more so here in view

of Peterson’s testimony that even routine infections can be life-threatening to an infant of

Cheyenne’s age. Thus, although the majority maintains that “nothing prevents the state from

arranging to have the child immunized after the parent’s rights have been severed,” n.6,

supra, if that is the ultimate result of the dependency proceedings, such delay is unacceptable

in light of the statutory obligations of ADES and the juvenile court to protect this child and

the unchallenged medical testimony that her immunizations are medically necessary now.

The respondent judge’s decision that immunization is in Cheyenne’s best interest and

necessary for her safety is supported by reasonable evidence in the record, was not an abuse

of discretion, and is entitled to our deference. See In re Maricopa County Juvenile Action

No. JD-6236, 178 Ariz. 449, 451, 874 P.2d 1006, 1008 (App. 1994) (appellate court

23
“generally deferential when the juvenile court exercises its substantial discretion to make

placement decisions in the best interest of dependent juveniles . . . [and] review[s] such

orders for abuse of discretion”) (citation omitted).

¶42 As a matter of constitutional law and statutory construction, there is little

support for the majority’s premise that the state must establish a compelling interest in the

specific procedure of immunization because Diana has objected to that procedure on

religious grounds. And there is equally scant foundation for the majority’s conclusion that

Arizona has “legislatively subordinated” any state interest in immunization, including its

interest in immunizing a dependent child in its custody, to a parent’s religious objection. The

majority has erred as a result of its misplaced reliance on Yoder; its failure to appreciate the

difference between the state’s general interest in child welfare and its particular custodial

interests and obligations with respect to Cheyenne as a dependent child; and its insistence

that statutes reflecting the state’s general public health interest in immunization, which defer

to a parent’s religious objection, necessarily modify the state’s more particular obligation

under Title 8, A.R.S., to provide medical care for a dependent child. As a result, the

majority’s limitation on the juvenile court’s authority is unsound as a matter of both

jurisprudence and state public policy.

Constitutional Considerations

¶43 The majority relies on Yoder for “guidance” in this context while failing to

recognize crucial distinctions between that case and the circumstances presented here. In

24
Yoder, the Supreme Court found the state’s parens patriae 9 interest in compulsory secondary

education insufficient to overcome the interest of an Amish parent who had shown that such

regulation would “gravely endanger, if not destroy, the free exercise of [Amish] religious

beliefs.” Yoder, 406 U.S. at 219, 229, 92 S. Ct. at 1535, 1540. The father in Yoder had

demonstrated “the adequacy of their alternative mode” of vocational instruction to

accomplish the overall interests advanced by the state, id. at 235, 92 S. Ct. at 1543, and had

“introduced persuasive evidence . . . that accommodating [their] religious objections . . .

[would] not impair the physical or mental health of [their] child[ren],” id. at 234, 92 S. Ct.

at 1542. However, the Court observed, “To be sure, the power of the parent, even when

linked to a free exercise claim, may be subject to limitation under Prince [v. Massachusetts,

321 U.S. 158, 64 S. Ct. 438 (1944),] if it appears that parental decisions will jeopardize the

health or safety of the child, or have a potential for significant social burdens.” Id. at 233-34,

92 S. Ct. at 1542.

¶44 In Prince, the Supreme Court had upheld the state conviction of a Jehovah’s

Witness for permitting her niece, a child in her legal custody, to sell publications on the street

in violation of state child labor law. 321 U.S. at 159, 64 S. Ct. at 439. The Supreme Court

recognized as a cardinal principle “that the custody, care and nurture of the child reside first

in the parents,” but added:

9
“Parens patriae,” Latin for “parent of his or her country,” is defined as “the state in
its capacity as provider of protection to those unable to care for themselves.” Black’s Law
Dictionary 1144 (8th ed. 2004).

25
 [N]either rights of religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in youth’s well
being, the state as parens patriae may restrict the parent’s control
by requiring school attendance, regulating or prohibiting the
child’s labor, and in many other ways. Its authority is not
nullified merely because the parent grounds his claim to control
the child’s course of conduct on religion or conscience. Thus,
he cannot claim freedom from compulsory vaccination for the
child more than for himself on religious grounds. The right to
practice religion freely does not include liberty to expose the
community or the child to communicable disease or the latter to
ill health or death. . . . [T]he state has a wide range of power for
limiting parental freedom and authority in things affecting the
child’s welfare; and this includes, to some extent, matters of
conscience and religious conviction.

Id. at 166-67, 64 S. Ct. at 442 (citations and footnotes omitted). The Court concluded:

Parents may be free to become martyrs themselves. But it does
not follow they are free, in identical circumstances, to make
martyrs of their children before they have reached the age of full
and legal discretion when they can make that choice for
themselves.

Id. at 170, 64 S. Ct. at 444.

¶45 Yoder’s critical distinction of parental decisions that jeopardize the health or

safety of a child, and the specific reference in Prince to a state’s authority to compel

immunization despite a parent’s religious objection, present the most obvious and

fundamental differences between this case and Yoder. And unlike the parent in Yoder, Diana

has provided no evidence that accommodating her religious objection would not impair

Cheyenne’s physical health and would constitute an adequate alternative to the state’s interest

26
in providing Cheyenne with medically necessary care. Indeed, the undisputed evidence

presented to the respondent judge required the contrary conclusion.

¶46 A less obvious but equally critical distinction between this case and Yoder

involves the different interests at stake. As the majority concedes, “it is the best interests of

the child, not the parent, that are paramount in a dependency proceeding.” ¶ 31, supra. But

the Supreme Court in Yoder pointedly did not address the “interest of the child as contrasted

with that of the parents” or “the proper resolution of possible competing interests of parents,

children, and the state.” 406 U.S. at 230-31, 92 S. Ct. at 1541. In Yoder, the Court was

concerned only with the “interest of parents, as contrasted with that of the state.” Id. at 232,

92 S. Ct. at 1541. Specifically, the Court considered the power of the state to impose

criminal penalties on Amish parents for refusing on religious grounds to send their children

to school. Id. In contrast, this case raises the question of how the competing interests of a

child, a parent, and the state are affected by a judicial determination that the parent is

unwilling or unable to properly care for the child.

¶47 Since Yoder was decided, the Supreme Court has addressed the considerations

relevant to a child’s best interests and has made clear that deference to a parent’s decisions

about a child’s care is dependent on “the traditional presumption that a fit parent will act in

the best interest of his or her child.” Troxel v. Granville, 530 U.S. 57, 70, 120 S. Ct. 2054,

2062 (2000) (plurality opinion) (court must afford “at least some special weight” to “fit”

parent’s decision regarding grandparental visitation). While generally recognizing the

27
“fundamental right of parents to make decisions concerning the care, custody, and control

of their children,” id. at 66, 120 S. Ct. at 2060, the Court explained the importance of the

distinction between a “fit” and “unfit” parent when a child’s best interests are at issue:

[T]he Troxels did not allege, and no court has found, that
Granville was an unfit parent. That aspect of the case is
important, for there is a presumption that fit parents act in the
best interests of their children. . . . Accordingly, so long as a
parent adequately cares for his or her children (i.e., is fit), there
will normally be no reason for the State to inject itself into the
private realm of the family to further question the ability of that
parent to make the best decisions concerning the rearing of that
parent’s children.

Id. at 68-69, 120 S. Ct. at 2061 (citation omitted). To the extent the majority finds no basis

to conclude that the “residual rights of a parent whose child has been adjudged dependent

should carry any less weight than those of other parents,” ¶ 27, supra, Troxel clearly provides

that authority.

¶48 Here, Cheyenne’s adjudication as a dependent child was a legal determination

that she is “[i]n need of proper and effective parental care and control and . . . has . . . no

parent or guardian willing to exercise or capable of exercising such care and control.”

§ 8-201(13). 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. See Troxel, 530 U.S. at 68-69, 120 S. Ct. at 2061.

And the adjudication of dependency resulted in a compelling state interest that justifies the

delegation of decisions about Cheyenne’s care to the juvenile court. Maricopa County No.

28
JD-6123, 191 Ariz. at 392, 956 P.2d at 519. This interest is more than sufficient under

Yoder. But because Yoder dealt only with parental rights, it provides little guidance here and

no authority for limiting the juvenile court’s discretion to make medical decisions for a

dependent child.10

State’s Interest in Providing Medical Care for a Dependent Child

¶49 In my view, the majority also goes astray in characterizing the state’s interest

in this case as a general interest “in immunizing children to promote their health and

welfare,” ¶ 19, supra, and in asserting that public health regulations pertaining to

immunizations required for child-care attendance are “directly applicable to the competing

interests here.” ¶ 24, supra. The state’s interest in promoting the health and welfare of

children describes the state’s parens patriae interest with respect to all children residing in

10
The majority’s citation of Employment Division, Department of Human Resources
of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990), ¶ 22, supra, does not alter the
Supreme Court’s acknowledgment that the Yoder case “in no way determines the proper
resolution” of a conflict between a parent, the state, and a child, when a child’s interests are
at issue, Yoder, 406 U.S. at 231, 92 S. Ct. at 1541, as they are here. And it is doubtful that
Smith—in which the Supreme Court generally rejected the strict scrutiny test for neutral laws
of general applicability that incidentally burden religion, 494 U.S. at 878, 883, 110 S. Ct. at
1599-1602—has “reaffirmed” a compelling state interest requirement when a parent
challenges a decision that affects her religious interests, ¶ 22, supra. See, e.g., Leebaert v.
Harrington, 332 F.3d 134, 143-44 (2d Cir. 2003) (Smith’s “hybrid claims” language dicta;
parent’s religious objection to mandatory health education subject to rational basis review);
Douglas County v. Anaya, 694 N.W.2d 601, 605-06 (Neb. 2005) (parent’s objection to
metabolic testing of infant did not implicate strict scrutiny under Smith); see also Boone v.
Boozman, 217 F. Supp. 2d 938, 955 n.38 (E.D. Ark. 2002) (noting Smith included
compulsory immunization of children as example of state action that should not be subject
to compelling interest test; citing Smith, 494 U.S. at 888-89, 110 S. Ct. at 1605-06; Cude v.
State, 377 S.W.2d 816, 818-20 (Ark. 1964)).

29
the state; it is the same interest identified by the Supreme Court in Yoder and Prince and by

our supreme court in Cochise County No. 5666-J.

¶50 But, pursuant to § 8-531(4), ADES as Cheyenne’s custodian now stands “in

loco parentis” to Cheyenne—that is, “in the place of a parent.” Black’s Law Dictionary 803

(8th ed. 2004) (“Of, relating to, or acting as a temporary guardian or caretaker of a child,

taking on all or some of the responsibilities of a parent”); see Bryan v. Bryan, 132 Ariz. 353,

354 n.1, 645 P.2d 1267, 1268 n.1 (App. 1982) (“In loco parentis is a status embodying two

ideas; first, the assumption of a parental status, and second, the discharge of parental

duties”); see also Parham v. J. R., 442 U.S. 584, 619, 99 S. Ct. 2493, 2512 (1979) (“state

agency having custody and control of the child in loco parentis” has duty to consider child’s

best interests and may “speak for the child” with respect to voluntary commitment to mental

health facility). ADES’s interests and obligations resulting from its role in loco parentis in

this case—distinct from its parens patriae interests and specific to Cheyenne as a dependent

child—are governed by provisions of Title 8, and include a statutory duty to provide her with

comprehensive medical care. See §§ 8-512, 8-531(4). As our supreme court has explained:

[C]hildren are not property of their parents whose control may
only be interrupted by a finding of fault; on the contrary, . . .
children . . . have special needs and rights . . . protected by law[,
including] the right to effective and proper parental control and
care. If a child is found to be without such parental care and
control and without parents willing or capable of exercising
such care and control, the child is a dependent child and entitled
to have such care and control furnished through the state.

30
In re Maricopa County Juvenile Action No. J-75482, 111 Ariz. 588, 590-91, 536 P.2d 197,

199-200 (1975).11

¶51 Courts in other jurisdictions have recognized, in similar circumstances, that

when the state’s custodial interest in providing medical care to a dependent child conflicts

with a parent’s religious interest, a court must resolve the conflict based on the best interests

of the child. For example, in In re Karwath, 199 N.W.2d 147, 149 (Iowa 1972), the parent

of dependent children asserted his residual parental right to challenge, on religious grounds,

tonsillectomies that had been recommended for the children to prevent recurring infections.

The Iowa Supreme Court concluded that the state’s “statutory duty to provide ordinary

medical care presupposes a right to do so in appropriate circumstances over parental

objection even in [the] absence of immediate risk to life or limb.” Id. at 150. Thus, “where

the best interests and welfare of children in care and custody of the State reasonably require

medical treatment opposed by a parent, residual parental rights cannot be invoked to prevent

it.” Id.

11
In my view, proper analysis of Diana’s request for relief requires recognition of this
crucial distinction between the state’s limited parens patriae authority to interfere with a fit,
custodial parent’s decision and “invade the rights of the parent and the family,” see Cochise
County No. 5666-J, 133 Ariz. at 161, 650 P.2d at 463, and its obligation, acting in loco
parentis, to provide for the needs of a dependent child whose parents have been found unable
to do so. See Pima County No. J-78632, 147 Ariz. at 587, 712 P.2d at 434 (noting ADES’s
custodial responsibilities to dependent children). The majority thus errs in concluding that
Cochise County No. 5666-J, which pertained to state action against a custodial parent
presumed to act in her children’s best interests, involves “similar, if not identical, state and
parental interests” as those implicated here, ¶ 22, supra.

31
¶52 In re Stratton, 571 S.E.2d 234 (N.C. App. 2002), is also persuasive. That case

addressed the identical issue raised here: parents whose children had been adjudicated

dependent appealed a court order authorizing the children’s legal custodian to have them

immunized. Id. at 235. The parents there maintained that, because their parental rights had

not been terminated, they were entitled to assert a statutory exemption from North Carolina’s

mandatory immunization laws based on their “‘bona fide religious beliefs.’” 571 S.E.2d at

236, quoting N.C. Gen. Stat. § 130A-157 (2001). They contended that immunizing their

children while in the temporary custody of the state would be a “violation of [their]

constitutionally protected religious beliefs” that could not be justified in the absence of

“medical emergency or other strong need for immunization.” 571 S.E.2d at 236, 237.

¶53 The court in Stratton noted that “[North Carolina] courts do not have a history

of routinely ordering the performance of medical procedures on children without parental

consent” and acknowledged that “‘the custody, care and nurture of the child reside first in

the parents.’” Id. at 433, quoting Prince, 321 U.S. at 166, 64 S. Ct. at 442. But, the court

reasoned,

“A natural parent’s constitutionally protected paramount interest
in the companionship, custody, care, and control of his or her
child is a counterpart of the parental responsibilities the parent
has assumed and is based on a presumption that he or she will
act in the best interest of the child. Therefore, the parent may no
longer enjoy a paramount status if his or her conduct is
inconsistent with this presumption or if he or she fails to
shoulder the responsibilities that are attendant to rearing a child.
. . . Unfitness, neglect, and abandonment clearly constitute
conduct inconsistent with the protected status parents may

32
 enjoy. . . . ” Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528,
534-35 (1997) (citations omitted). Once unfitness, neglect or
other action inconsistent with the parent’s constitutionally
protected interest has been found, a court should revert to a
basic determination of what action is in the best interests of the
child. Id. Here, the trial court found that immunization was in
the best interest of the Stratton children.

Stratton, 571 S.E.2d at 237-38. Stratton correctly identifies the proper standard for a juvenile

court to apply to conflicts relating to the care of a dependent child: the best interests of the

child.

Statutory Construction of A.R.S. § 8-512

¶54 The majority recognizes that a state may constitutionally require the

immunization of children despite a parent’s religious objection, see ¶ 24, supra, and there can

be no serious question about this proposition. See Prince, 321 U.S. at 166-67, 64 S. Ct. at

442-43; see also Brown v. Stone, 378 So. 2d 218, 222 (Miss. 1979) (citing “‘great weight of

authority’” holding that mandatory immunization laws “‘do[] not violate the constitutional

rights of anyone, on religious grounds or otherwise’”). But the majority reasons that our

legislature, in providing for a religious exemption from immunization requirements for

children attending day care, has necessarily determined that Arizona has no compelling state

interest in immunizing dependent children that would override a parent’s religious objection.

See ¶¶ 23-25, supra.12 See Prince, 321 U.S. at 166-67, 64 S. Ct. at 442-43. This reasoning

12
Although the majority cites § 36-883(C) as authority for this legislative
determination, ¶ 25, supra, this statute does not actually provide such an exemption but
addresses the rule-making authority of ADHS as discussed in ¶ 59, infra.

33
is infirm because it draws together and conflates completely unrelated statutes to arrive at a

conclusion supported by none.

¶55 As an initial observation, the majority relies on a negative inference that the

legislature’s choice to provide a religious exemption from immunization for the general

population of children is an affirmative expression that it has no compelling interest, and

therefore no authority, to have chosen a different course for dependent children. But

certainly there are other areas in which the legislature could regulate but declines to, not

because the state lacks sufficient interest to justify intervention, but simply as a matter of

practical priorities or inclination. As acknowledged by the majority, the religious exemption

from immunization permitted by § 36-883 is merely a matter of legislative grace; it should

not therefore be elevated to a constitutional shackle on a juvenile court’s determining the

medical needs of a dependent child.

¶56 Equally problematic is the majority’s implicit requirement that the provisions

in Title 8 governing the care of dependent children be read in pari materia with those public

health and education statutes, essentially a mixing of apples and oranges. It is well

established that “[s]tatutory provisions are to be read in the context of related provisions and

of the overall statutory scheme,” and “[s]tatutes relating to the same subject matter should

be read in pari materia to determine legislative intent and to maintain harmony.” Goulder

v. Ariz. Dep’t of Transp., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App. 1993), aff’d, 179 Ariz.

181, 877 P.2d 280 (1994). But that is not the situation here. Although many of the public

34
health, education, and dependency statutes cited in this case refer to immunizations, they do

not share the same statutory scheme. Instead, they “were enacted at different times to protect

different interests.” Employers Mut. Cas. Co. v. McKeon, 159 Ariz. 111, 114, 765 P.2d 513,

516 (1988) (statutes regarding uninsured and underinsured insurance coverages not to be read

in pari materia with statutes addressing liability coverage).

¶57 Because Cheyenne has been adjudicated dependent, the proper point of

reference must be those statutes specifically addressing the care of dependent children in the

legal custody of ADES and the juvenile court’s authority to make custodial decisions for

those children in accordance with statutory guidelines. See In re Pima County Juvenile

Action No. J-78632, 147 Ariz. 584, 587, 712 P.2d 431, 434 (1986) (legislature “intended that

[ADES] have power to act for the benefit of a dependent child subject to juvenile court

review”); see also, e.g., A.R.S. §§ 8-201(13) (definition of “dependent child”); 8-202

(“[j]urisdiction of juvenile court”); 8-512 (“[c]omprehensive medical and dental care;

guidelines”); 8-514.05(c) (foster parent may consent to routine medical procedures);

8-845(B) (“[d]isposition hearing”; considerations for review of child’s status).

¶58 Section 8-512, located in Chapter 5 (“Child Welfare and Placement”) of Title

8 (“Children”), requires ADES to provide comprehensive medical care to a child in its legal

custody as prescribed by rules of the Department. Such care expressly includes regular

immunizations. First, § 8-512(B) provides for certain immunizations to be included in

medical care “as minimums.” Id. In addition, Department rules specify “a complete

35
preplacement medical examination . . . [that] shall include as a minimum” specified

vaccinations “if not previously provided to the foster child” and also provide for the inclusion

of “immunizations” in its “Comprehensive Medical/Dental Program for Foster Children.”

Ariz. Admin. Code R6-5-6005(A)(1), (11). The goal of the ADES medical program “is to

provide . . . full coverage for those medical and dental services which are necessary to the

achievement and maintenance of an optimal level of physical and mental health for children

in foster care.” Ariz. Admin. Code R6-5-6001. The clear purpose of § 8-512 is to provide

for the medical needs of children who become legally dependent upon the state for that care.

¶59 In contrast, § 36-883, found in Chapter 7.1 (“Child Care Programs”) of Title

36 (“Public Health and Safety”), authorizes ADHS to promulgate rules “regarding the health,

safety and well-being of the children to be cared for in a child care facility,” with the caveat

that any rule related to educational activities, physical examination, medical treatment or

immunization “shall include appropriate exemptions” for children whose parents object on

the ground of religious belief. The statute does not pertain to the care of dependent children.

Instead, by its terms, the statute speaks to public health concerns about all children enrolled

in day care.

¶60 Similarly, Article 6 (“School Immunization”) of Chapter 8 (“School

Attendance”) in Title 15 (“Education”) does not address the state’s care of dependent

children but deals only with general public health concerns. Section 15-872, A.R.S., requires

that “a pupil shall not be allowed to attend school without submitting documentary proof”

36
that he or she has been immunized in accordance with rules promulgated by ADHS in

accordance with § 36-672. Section 15-873 permits a parent or guardian to exempt his or her

child from these immunization requirements by submitting a signed statement that the parent

or guardian has received information about immunizations from ADHS, understands its risks

and benefits and the potential risks of nonimmunization, and does not consent to the

immunizations due to personal beliefs. § 15-873(A)(1). However, a child who has been

exempted from immunization must be excluded from school “during outbreak periods of

communicable immunization-preventable diseases as determined by the department of health

services or local health department.” § 15-873(C); see also Maricopa County Health Dep’t

v. Harmon, 156 Ariz. 161, 166-67, 750 P.2d 1364, 1369-70 (App. 1987) (neither right to

education nor right to free expression of religion violated by county health department order

excluding nonimmunized children from school attendance after measles outbreak in

community). Other related statutes also attest to the public health nature of the legislature’s

interest in immunizing school children. See, e.g., A.R.S. § 36-673 (permitting local health

departments to provide no-cost school immunizations and train school nurses to administer

them); A.R.S. § 36-697(B)(3) (ADHS “health start program” goals include “increas[ing] the

number of children receiving age appropriate immunizations by two years of age”).

¶61 There is no reason to believe the legislature intended these public health

statutes pertaining to immunization of children attending child-care facilities and schools to

be read together with provisions in Title 8 regarding the care of dependent children, so that

37
an unfit parent could prohibit the child’s immunization on religious grounds. Section 8-512

unambiguously grants ADES authority to immunize children in its legal custody, and any

challenged decision by ADES as custodian is subject to the juvenile court’s independent

determination of the child’s best interests. See Maricopa County No. J-6236, 178 Ariz. at

451-52, 874 P.2d at 1008-09. No statutory ambiguity calls for further interpretation.

¶62 Moreover, there is no conflict between the provisions in § 8-512 authorizing

immunization of a dependent child and the public health statutes and regulations cited by the

majority. Those provisions recognize the right of a custodian acting in loco parentis, as

ADES is here, either to authorize immunizations or request an exemption. See A.R.S.

§§ 15-101(15) (“‘[p]arent’ means the natural or adoptive parent of a child or a person who

has custody of a child”); 15-101(16) (“‘[p]erson who has custody’ means a parent or legal

guardian of a child, a person to whom custody of the child has been given by order of a court

or a person who stands in loco parentis to the child”); 36-673 (informed consent for school

immunizations by “person in loco parentis”); Ariz. Admin. Code R9-6-706(F) (“responsible

person” may submit statement of exemption from immunization to child-care facility); Ariz.

Admin. Code R9-6-701(42) (“‘[r]esponsible person’ has the same meaning as ‘parent’ in

R9-5-101”); Ariz. Admin. Code R9-5-101(79) (“[p]arent” includes “[a] natural or adoptive

mother or father,” “[a] legal guardian appointed by a court of competent jurisdiction,” or “[a]

‘custodian’ as defined in A.R.S. § 8-201”). Perhaps more to the point in this case, there is

no conflict, constitutional or otherwise, in the legislature’s deferring to a fit parent’s

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decisions as a matter of public health laws but, in the case of a dependent child whose parent

has been deemed unfit, deferring instead to the jurisdiction of the juvenile court.

¶63 In short, there exists no statutory conflict or ambiguity with respect to the

construction of § 8-512. That being so, “application of the in pari materia doctrine to two

statutes enacted at different times to deal with different problems, brings more confusion than

enlightenment.” McKeon, 159 Ariz. at 114, 765 P.2d at 516. The majority therefore errs in

reading § 8-512 as limited by public health statutes that govern fit, custodial parents’

enrollment of their children in a child-care facility or school.

¶64 Finally, although the majority repeatedly refers to the “residual rights”

language in § 8-531(5)(c) and concludes Diana’s ability to “direct the religious upbringing

of her child”—even at the expense of the child’s medical needs—has been “expressly

preserved by statute,” ¶ 38, supra, that assertion can only be true if this court rewrites the

statute. Nowhere in § 8-531 is religion ever mentioned and, for the reasons outlined above,

there is no factual or legal basis for believing the legislature intended such an unstated

contradiction to the direct mandate of § 8-512 that dependent children in the state’s custody

receive comprehensive medical care, including immunizations. Thus, contrary to the

majority’s assertions, the state has not expressly “subordinated its interest in the particular

medical procedure [for a dependent child] to the rights of the parent.” ¶ 39, supra.

Furthermore, even if determining a child’s “religious affiliation” is a right that properly

remains with the parent of a dependent child, as the state at oral argument acknowledged it

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“honors” as a matter of practice, Diana has not demonstrated, or even suggested,

notwithstanding her religious convictions, that immunizing Cheyenne would prevent or

interfere with raising her in the religion of Diana’s choice. Cf. Yoder, 406 U.S. at 218, 92

S. Ct. at 1534 (Amish parent demonstrated compulsory secondary education would

“substantially interfer[e] with the religious development of the Amish child and his

integration into the way of life of the Amish faith community at the crucial adolescent stage

of development”).

Conclusion

¶65 I believe the majority’s decision displaces the legislature’s clear mandate that

a juvenile court provide for a dependent child’s care in accordance with the child’s best

interests, see Cochise County No. 5666-J, 133 Ariz. at 161, 650 P.2d at 463, treating the

health and safety of a child as a paramount concern, § 8-845(B). 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.13

Instead, ADES must establish that the health benefits from a particular procedure give rise

to a “compelling state interest” before a court may authorize the proposed care—even when

Title 8 expressly includes the procedure at issue as part of the comprehensive medical care

13
Equally troubling, under today’s decision, the ability of an unfit parent to control
decisions for his or her dependent child is not necessarily limited to health care. For
example, a parent of a seven-year-old dependent child could insist, based on a religious
objection to a school’s curriculum or to formal education itself, that ther child be home-
schooled, or not instructed at all, given the statute that permits a parent to opt out of public
education until the child is eight years of age. A.R.S. § 15-802.

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ADES must provide to dependent children. See § 8-512. 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.

¶66 I respectfully dissent.

____________________________________
PHILIP G. ESPINOSA, Judge

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