Care and Protection of Eve.
SUPREME JUDICIAL COURT
CARE AND PROTECTION OF EVE.[1]
| Docket: | SJC-13672 |
| Dates: | February 7, 2025 - May 15, 2025 |
| Present: | Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Wolohojian, JJ. |
| County: | Norfolk |
| Keywords: | Department of Children & Families. Religion. Public Health, Immunization. Constitutional Law, Parent and child, Freedom of religion. Parent and Child, Care and protection of minor, Custody, Interference with parental rights. Interference with Parental Rights. Due Process of Law, Care and protection of minor. Minor, Care and protection, Custody. Practice, Civil, Care and protection proceeding. |
Petition filed in the Norfolk County Division of the Juvenile Court Department on May 9, 2023.
A motion to allow vaccinations was heard by Joseph F. Johnston, J.
A proceeding for interlocutory review was heard in the Appeals Court by Joseph M. Ditkoff, J. The Supreme Judicial Court granted an application for direct appellate review.
Kylah I. Clay for the mother.
Laura E. Openshaw for the father.
Kristin S. Braithwaite for Department of Children and Families.
Jeanne M. Kaiser for the child.
Samuel J. Whiting, for Massachusetts Family Institute, Inc., amicus curiae, submitted a brief.
KAFKER, J. A child was temporarily removed from her parents' care shortly after her birth and placed in the custody of the Department of Children and Families (department) due to concerns about domestic violence. The department sought to vaccinate her in accordance with an age-based immunization schedule, but her parents, practicing Rastafarians, objected on religious grounds and sought to bar the department from having the child vaccinated. Ultimately, a Juvenile Court judge allowed the department to facilitate vaccinations for the child.
The parents seek to stop the child from receiving any future vaccinations while in the department's temporary custody. The parents argue that the vaccination of their child over their religious objections, when they have only temporarily lost custody, violates their constitutional rights. The parents rely on a State statute allowing religious exemptions to vaccine requirements for school-aged children as evidence that parents who retain custody of their children are not generally required to have the children vaccinated if so doing would violate their religious beliefs. See G. L. c. 76, § 15. They also point to inconsistent treatment by the department, which has not vaccinated any of their three other children, who were previously removed from their care and placed in the now permanent custody of the department.
Applying the State constitutional protections afforded parents exercising their free exercise rights, we conclude that the order allowing the child to be vaccinated violated those rights. Where the exercise of the parents' sincerely held religious beliefs is substantially burdened by the department's vaccination efforts, the department must have "an important governmental interest that is sufficiently compelling that the granting of an exemption to people in the position of the [parents] would unduly hinder that goal." Attorney Gen. v. Desilets,
1. Factual and procedural background. The child was born to the mother and father on January 1, 2024. The child's three older siblings had previously been removed from the mother and father's care and placed in the custody of the department at the ages of eleven months old, two years old, and four years old because of concerns about domestic violence. The parents stipulated to their unfitness as to the child's three siblings. The three siblings are now in the permanent custody of the department and reside with their mother's aunt. The department has not ordered any vaccinations for any of the child's three siblings while in its care.
Nine days before the child was born, the father punched through the window of the room in the shelter in which he and the mother were staying. Four days later, the police were called to respond to an incident in the parents' room of the shelter. An administrator at the hotel out of which the shelter operated heard a man angrily yelling and, subsequently, a woman crying. The couple refused to open the door to their room to allow the security guard to do a wellness check, and the father yelled obscenities through the door at the security guard. The police arrived shortly thereafter and ultimately convinced the father to open the door so that an officer could speak with him and the mother to verify that everyone in the room was okay.
a. Removal. In light of the concerns about ongoing domestic violence between the mother and father, the department was granted emergency custody of the child two days after she was born, following an emergency custody hearing. On January 5, 2024, the parents brought a joint motion to stay vaccination of the child until the temporary custody hearing on January 10. The department agreed not to pursue any vaccinations prior to the custody hearing.[3]
b. Temporary custody hearing. At the temporary custody hearing, both parents testified to their religious beliefs and objections to Western medicine. The parents are Rastafarians. As part of their religious practice, they avoid Western medicine, including vaccines, and take a holistic approach to healing illness. For example, the father testified that they would use herbs if a child had a headache and give elderberries and a bath to a child with a high fever. The parents elect to use Western medicine as a "last resort" when it is a question of "basically life or death." In the parents' view, "you're not supposed to put anything inside your body outside of what nature has already given you because it goes against God's plan." More specifically, the mother testified that at the hospital after the child was born, she consented to have the child's blood drawn to test her glucose levels and consented to giving the child formula because the child could not have breast milk, but she did not consent to giving the child vitamin K drops because that was "a choice."
As to the child's three older siblings, the mother testified that she declined early intervention recommended by a pediatrician for one of them because "it was optional." The mother also testified that if she had custody of the child's siblings, she would not "intend to have them vaccinated" and that none of the three other children had been vaccinated since being placed in the care of the department. After the three older children were removed from her care, one had to be hospitalized for three days with a high fever and breathing issues, for which the mother had not sought medical care. Finally, the mother also disclaimed most of her prior domestic violence allegations against the father.
At the conclusion of the temporary custody hearing, the judge found that the department had sustained its burden of showing by a fair preponderance of the evidence that the child was at immediate risk of abuse or neglect and the judge expressed concern about the parents' history of domestic violence and medical neglect. Accordingly, the judge granted the department temporary custody of the child but allowed the parents' motion to enjoin vaccinations "at this time."
c. Joint motion to vaccinate. Subsequently, the department and the child jointly moved to allow the department to arrange for vaccinations of the child pursuant to a standard immunization schedule. In support, the department submitted an affidavit signed by two physicians treating the child. The affidavit stated that "[a] standard platform of vaccines for infants and children in the United States is recommended by the American Academy of Pediatrics and by the Centers for Disease Control and Prevention." It further provided that "[f]ailure to administer vaccines on the recommended schedule exposes infants and children to an unacceptable level of risk for life-threatening preventable illnesses that can cause severe disease or death." The parents objected on religious grounds.
The judge held a hearing on the joint motion, which the parties had agreed would be heard at 2 P.M. On the day of the hearing, the judge rescheduled the hearing for 10 A.M., but counsel for the mother and counsel for the father were unable to reach their clients to inform them of the time change. Accordingly, counsel for the mother and counsel for the father moved to continue the hearing so that their clients would have the opportunity to testify as to their religious beliefs. The judge, who had presided over the temporary custody hearing, denied the motion to continue. At the hearing, the department argued that the vaccinations were medically necessary and within the department's authority and that the parents' objections should be balanced against the interests of the child and the Commonwealth. Both counsel for the child and counsel for the department questioned the sincerity of the parents' religious beliefs and argued that vaccination served the child's best interests. Counsel for the mother and counsel for the father, on the other hand, argued that deciding such a question based on the best interests of the child would effectively nullify religious exemptions, given the consensus of the medical establishment in favor of vaccinations. The judge was also informed that the three other children in the department's custody had not been vaccinated.
After the hearing, the judge issued an oral order that "not[ed] . . . the parents' inconsistencies in their statements regarding vaccination, but assum[ed] arguendo that [the parents were] asserting a valid religious belief" and found that the parents' religious beliefs were nevertheless "outweighed by the child's best interest." In so finding, the judge credited the doctors' affidavit on the medical necessity of vaccinating the child.
d. Further motion practice. The parents jointly filed a petition with the single justice of the Appeals Court challenging the judge's order, and the single justice referred the matter to a panel of the Appeals Court. The parents filed a motion in the Juvenile Court to stay any vaccinations pending the outcome of the appeal, which the judge denied. The parents jointly petitioned the single justice for interlocutory relief from the order of the judge. The single justice denied the petition on the ground that the parents failed to show a likelihood of success on the merits. The parents then appealed from that ruling to the Appeals Court panel. The child sought direct appellate review in this court, which we allowed.
In the meantime, the child has received several vaccinations, and the department plans to continue vaccinating the child according to the recommended immunization schedule. The department, which now has permanent custody of the child's three older siblings, has not vaccinated any of the child's siblings.
2. Discussion. No party disputes that the department has the authority to provide for the routine medical care of children in its custody, which includes vaccinations. See G. L. c. 119, § 21 (defining "custody" to include "the power to . . . determine a child's . . . medical care"); 110 Code Mass. Regs. § 11.01 (2022); 110 Code Mass. Regs. § 11.04(1)(k) (2022). The question presented in this case is whether the department may vaccinate a child temporarily in its custody consistent with the position advocated by the child's counsel but against the religious objections of the child's parents.
This is a matter of first impression for this court. We have previously held that that the department may authorize extraordinary medical care over parental objections on religious grounds when the child is unlikely to survive without the treatment. See Matter of McCauley,
a. State childhood vaccination policy. We begin with the State childhood vaccination policy and the religious exemptions it allows. Massachusetts mandates that children attending school, school-based daycare programs, and recreational camps receive certain enumerated vaccinations. See G. L. c. 76, § 15; 105 Code Mass. Regs. § 220.500(A) (2016); 105 Code Mass. Regs. § 430.152 (2024). However, "[i]n the absence of an emergency or epidemic of disease . . . no child whose parent or guardian states in writing that vaccination or immunization conflicts with his sincere religious beliefs shall be required to present [a vaccination] certificate in order to be admitted to school." G. L. c. 76, § 15. See 105 Code Mass. Regs. § 220.500(C)(1) (vaccination requirements shall not apply where "the student's parent or guardian if the student is a minor . . . provides written documentation that he or she meets the standards for . . . religious exemption set forth in [G. L.] c. 76, § 15"); 105 Code Mass. Regs. § 430.153(A), (C) (2024) (unless cases of communicable diseases are present in camp, "[i]f a camper . . . has religious objections to . . . immunizations, the camper . . . shall submit a written statement, signed by a parent or legal guardian . . . stating that the individual is in good health and stating the general reason for such objections").
b. Departmental authority. We next turn to the statutes and regulations governing care and protection proceedings and medical care for children involved in such proceedings. General Laws c. 119 provides the statutory framework for care and protection proceedings. The department may be granted temporary custody of a child following a temporary custody hearing pursuant to G. L. c. 119, § 24, fourth par. Section 21 defines "custody" to include, inter alia, the power to "determine a child's place of abode, medical care and education." G. L. c. 119, § 21. "[M]edical care" is divided into three categories in department regulations: routine, emergency, and extraordinary. See 110 Code Mass. Regs. § 11.01. The department is authorized to consent to "routine medical care" for a child in its custody, which is defined to include "[i]mmunization against . . . tetanus, measles, poliomyelitis, mumps, rubella and such other communicable diseases as may be specified from time to time by the Department of Public Health." 110 Code Mass. Regs. §§ 11.01, 11.04(1)(k), 11.04(2).
"Custody" is not defined to include any authority to direct the child's religious upbringing or affiliation. Nor does the statute provide any carveout from the custodial powers defined in § 21 for the religious objections of parents. Section 21 provides, generally, that "[i]f a parent or guardian objects to the carrying out of any power conferred by this paragraph [enumerating custodial powers], that parent or guardian may take application to the committing court and the court shall review and make an order on the matter." G. L. c. 119, § 21.
c. Constitutional exemption. The parents argue that even absent a statutory exemption from the department's custodial power provided by § 21, they have constitutionally protected rights to override the department's medical care decision on religious grounds. Specifically, they argue that they have "residual rights" to direct their child's religious upbringing despite their temporary loss of custody and that the vaccination of their child over their religious objections violates their rights as guaranteed by the State and Federal Constitutions. We agree for the reasons discussed infra.
i. Parents' constitutional rights. There is no question that the rights to freely practice one's religion and to raise children "according to the dictates of [one's] own conscience" are among the most "sacred private interests," long recognized as such by this court and the United States Supreme Court. Meyer v. Nebraska,
The Supreme Court has also emphasized that the "parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters." Prince,
Cognate provisions of our State Constitution likewise provide express and vital protections for these fundamental rights. Article 12 of the Massachusetts Declaration of Rights protects the "fundamental right of parents to make decisions concerning the care, custody, and control of their children." Care & Protection of Jaylen,
"The Supreme Court [held in] the Smith case that 'a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.' Church of the Lukumi Babalu Aye, Inc. v. Hialeah, [
Desilets,
Although the rights at issue are protected under both the Federal and State Constitutions, such rights are not absolute under either Constitution. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents," but "neither rights of religion nor rights of parenthood are beyond limitation." Prince,
Further complicating the constitutional rights analysis here is the parents' temporary loss of custody. Although the parents have, at least for a period of time, lost control over the ordinary day-to-day decisions parents make regarding the upbringing of their children, see G. L. c. 119, § 21, they have not lost their constitutional rights. As the Supreme Court has explained, "[t]he 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." Santosky v. Kramer,
A temporary loss of custody is just that. It is based on a temporary custody hearing at which the department need only prove that the child was in immediate danger of serious abuse or neglect by a "fair preponderance of the evidence" (citation omitted). Care & Protection of Robert,
Although the Commonwealth has assumed control over certain decision-making concerning the child, at least temporarily, that assumption of control does not extend to the religious upbringing of the child. In this area in particular, the Commonwealth must not overstep its bounds. See First Amendment to the United States Constitution; art. 46, § 1, of the Amendments to the Massachusetts Constitution; 110 Code Mass. Regs. § 4.40(5) (2023) ("The Department, including foster parents, may not procure or authorize any religious ceremony for any minor child in its custody, absent authorization from the child's parent[s] or order of the court"). We are aware of no case extinguishing parental free exercise rights in this context. As we explained, albeit in dictum, in Custody of a Minor,
In sum, parents retain residual constitutional rights regarding the religious upbringing of their child, notwithstanding the temporary loss of custody of that child, which includes the temporary loss of control of many of the day-to-day decisions that are typically the province of parents. See G. L. c. 119, § 21. All of this brings us to the question we must decide in the instant case: when parents who have temporarily lost custody object to their child receiving vaccinations on religious grounds, and the department and the child insist that such vaccinations are necessary, do the parents' residual constitutional rights to direct their child's religious upbringing supersede the statutory authority of the department to make routine medical decisions for the child in its temporary custody?[6]
ii. State constitutional standard of review. We conclude that the proper standard of review here is the one we have consistently employed for State constitutional claims based on the free exercise of religion. See Magazu,
Under the standard of review for State constitutional free exercise claims,
"the party claiming an unconstitutional burden on the free exercise of religion 'must show (1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the [S]tate requirement. Once the claimant has made that showing, the burden shifts to the [S]tate. The [S]tate can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal.'"
Magazu,
iii. Analysis. Having articulated the proper test to apply when parents raise religious objections to routine medical care, we now apply this test to the facts before us.
First, the parents must show that their religious beliefs are sincerely held. See Magazu,
Second, the parents must show that the department's conduct "substantially burdens the [parents'] exercise of their religion." Desilets,
Third, the department must demonstrate "an important governmental interest that is sufficiently compelling" to justify the burden on the parents' religious exercise. Desilets,
Specifically at issue here is the vaccination of children at the direction of the department. As explained in the treating physicians' affidavit, a standard platform of vaccines for infants and children in the United States is recommended by the American Academy of Pediatrics and the Centers for Disease Control and Prevention, and failure to administer vaccines on the recommended schedule exposes infants and children to a risk of life-threatening preventable illnesses that can cause severe disease or death. Requiring the recommended childhood vaccinations to achieve these health benefits and to avoid these health risks would, therefore, generally satisfy the compelling interest requirement.
Nonetheless, as the Supreme Court has stated in its own free exercise analysis, "a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited" (citation omitted). Church of the Lukumi Babalu Aye, Inc.,
It is in this fourth and final prong that the department falls short. Significantly, the Commonwealth itself provides exemptions from mandatory school vaccinations for children of parents with religious objections who retain custody. See G. L. c. 76, § 15; 105 Code Mass. Regs. § 220.500(C); 105 Code Mass. Regs. § 430.153(A). Additionally, the record does not in any way establish that the department consistently requires the vaccination of children in its care. As explained supra, the child's own siblings in the custody of the department have not been vaccinated. More specifically, there is nothing in the record explaining why the department elected not to vaccinate the child's siblings but insists that vaccinating this child is necessary. These exemptions and inconsistencies undermine the department's contention that allowing this child to remain unvaccinated would substantially hinder the achievement of the health benefits provided by uniform vaccination administration. See Dalli v. Board of Educ.,
The department nonetheless argues that because the child is in foster care, this "increases her chances of exposure with other children," such that exempting her from vaccinations "would substantially hinder the State's interest in keeping all children in its borders safe." This argument regarding foster care is unavailing. First, the child is in a kinship placement, and nothing in the record indicates that she is likely to be transferred to another placement where she might have increased exposure to other children. Her siblings, including one that was placed in the department's custody when he was eleven months old, younger than the child is now, have never been vaccinated, although they are also in foster care in a kinship placement. That the department has allowed her siblings -- who are in similar circumstances but also attend school –- to remain unvaccinated further undercuts the department's position that granting an exemption to the child is not tenable.[8] Finally, general statements about the exposure risk of children in foster care are insufficient alone to demonstrate that allowing this specific child to remain unvaccinated would "unduly hinder" the department's compelling interests.
In sum, the department has not provided adequate justification for why an exemption "would substantially hinder the fulfillment of" the department's goals if applied to this specific child in her specific circumstances. Magazu,
3. Conclusion. Parents who have temporarily lost custody of their child retain a constitutional right to direct the religious upbringing of the child. When they object to vaccinations of their child on religious grounds, the department must demonstrate that allowing that child to remain unvaccinated would substantially hinder the department's compelling interest in the vaccinations. As the Commonwealth allows religious exemptions from vaccination for parents who have not lost temporary custody of their children and the department has not demonstrated a consistent application of the vaccination requirement for children within its custody, even as between this child and her siblings, the department has not demonstrated that leaving this child unvaccinated would substantially hinder the department's compelling interests. Accordingly, we reverse the order of the judge allowing the joint motion by the department and the child to facilitate the vaccination of the child.
So ordered.
footnotes[1] A pseudonym.
[2] We acknowledge the amicus brief submitted by Massachusetts Family Institute, Inc.
[3] The parties later learned that the child had received a vaccination against respiratory syncytial virus (RSV) on January 5, purportedly before the parents' motion to stay was filed. Per hospital policy, the vaccination was mandatory for the child to be moved to the pediatrics floor of the hospital.
[4] In this context, the rights protected by the free exercise and due process clauses appear to interact and overlap. See e.g., Parker v. Hurley,
[5] Title 110 Code Mass. Regs. § 7.104(1)(e) (2009) likewise requires foster parents to "respect and make efforts to support the integrity of a child's . . . religious background," suggesting, again, that the religious upbringing cultivated by the child's parents is entitled to respect, notwithstanding a temporary loss of custody.
[6] We note, as did the single justice of the Appeals Court, that we are not presented with a case in which a child has herself expressed her own interests contrary to the parents. Rather, the child was one month old at the time of the proceedings and her appointed counsel, using substituted judgment, presented legal arguments tracking the department's in regard to the importance of vaccination. See Care & Protection of Georgette,
[7] In applying our State constitutional test and concluding that it protects the free exercise rights at issue, we need not decide whether the department's vaccination policy is neutral and of general applicability and thus subject to the Smith test or whether, as the amicus here contends, by allowing some children to remain unvaccinated, the department undermined the general applicability of the rule and subjected itself to strict scrutiny. See Smith,
[8] The argument is all the more peculiar for the department's emphasis that the child spends time with her unvaccinated siblings. The department points to her visits with her unvaccinated siblings to argue that she has "the potential for exponentially greater exposure to people and places throughout the Commonwealth than an individual residing with his or her parents." Put differently, the department seems to rely on its decision not to vaccinate her siblings in support of its argument that allowing this child to remain unvaccinated would be impracticable and dangerous.