DIANA H. v. Rubin

judgment part affirm the We part. reverse ESPINOSA, PHILIP

CONCURRING: G.

Judge VÁSQUEZ, Judge. L. GARYE

171 P.3d 200 H., Petitioner,

DIANA Stephen RUBIN, Judge

Hon. M.

Superior Arizona, Court of the State of Pima, Respon

in and

dent, Department

Arizona of Economic

Security, Party Real

Interest.

2No. CA-SA 2007-0085. Appeals Arizona,

Court of 2, Department

Division B.

Nov.

has not articulated immunizing Cheyenne sufficient to override objection procedure, grant Diana’s we relief.

Background ¶2 Diana did not contest the determina- dependency dispute the facts con- tion dependency petition tained an amended by According to the amended filed ADES. (CPS) petition, Protective the Child Services temporary physical division of ADES took 26, 2007, custody Cheyenne on March placed Cheyenne’s her in foster care. doctor that the infant expressed had concern was developmentally prop- “behind due to lack of petition alleged nutrition.” The also that er Chey- “appear[ed] protect” Diana unable father, from who had been arrested enne her by Jeffrey Judge, Judge Law Firm Paul family’s violence at the resi- for domestic Shirly by Shirly, and Nuccio & P.C. Jeanne assaulting early 2007 and for dence March Tucson, Attorneys for Petitioner. following Although Diana Diana the week. shelter, violence she had moved to domestic Goddard, Terry Attorney Arizona General any deny episodes that of do- continued Nimmo, Tucson, Attorneys for Michelle R. occurred, mestic violence had and she was Party in Interest. Real eventually Diana asked to leave the shelter. denied, acknowledged, reports that also but

OPINION alcohol. she abuses ECKERSTROM, Presiding Judge. temporary custo- 3 After CPS had taken dependency special dy Cheyenne but before the 1 At issue in this action is wheth- object- adjudi- adjudication, Diana told she child has been had CPS er the who Cheyenne religious grounds having prohibit ed on cated has the presented ADES of the child on immunized. Diana also state-directed immunization religious request a written ground belief. with beliefs, exempted, on Diana’s respondent Petitioner Diana H. contends the based requirements the immunization judge granting abused his discretion from interest, in Ari- party apply otherwise to children enrolled motion filed the real Security facilities. See Ariz. Admin. Department of Economic zona child-care Arizona R9-5-305(A) (child-care (ADES), facility may requesting to consent to Code “writ- permit not attendance of without immunizations for Diana’s nine-month-old exemption or an accept special ac- ten immunization record daughter, Cheyenne. We 36-883(C) (Ari- affidavit”); also A.R.S. jurisdiction Diana has no see tion because (ADHS) adequate remedy Department zona of Health Services “equally plain, speedy, and 1(a), regarding immunization of Spec. Ariz. R.P. Ac- rules by appeal,” Rule facility “shall include tions, ques- cared for in a child-care petition raises and because whose appropriate exemptions for children importance tion of law that is “of statewide ChartOne, object ground that it conflicts on the impression,” Inc. and of first recognized Bernini, practices P.3d with the tenets of which church or denomination Because we conclude (App.2004). adherent or mem- or child is an adjudication extinguish did ber”). result, moved the court religious up- As Diana’s to determine immunizations for authority to consent to the state bringing of her child and because Cheyenne, objection, pertussis pediatric over Diana’s on the al dozen cases ground medically necessary were practice previous explained winter and Cheyenne’s and in best interests. pertussis “fairly widespread in the result, teenager community.” and adult As a May respondent judge 4 On an infant not who has been immunized adjudicated Cheyenne minor; against pertussis exposure risks to the bacte- care, legal custody, awarded and control of store, mall, grocery any ria “in the in the ADES; Cheyenne to directed that she re- place you’re likely to encounter [the] main in placement; her current foster Peterson, population.” According to while affirmed reunification with Diana as the case plan goal. teenagers adults agreement significant Based on an between face no ADES, judge Diana and may regard also scheduled health risk from the illness evidentiary hearing an immu- on the issue of “just prolonged it as cough that’s a nui- nizations. sance,” the life and health of an infant who pertussis high contracts are “at risk.”

¶ hearing, 5 At that ADES first called Cheyenne’s manager. CPS case He testified ¶ Addressing posed by the risks the oth- Cheyenne that the child-care center had been against er diseases which infants are ordi- attending, where her foster mother was also immunized, narily Peterson stated that employed, requiring was evidence of immuni- greatest Hib, second risk would be from Cheyenne’s zation as a condition of continued meningitis, bacterial cause of followed opined attendance.1 He Chey- that it was in rotavirus, pneumococcus, and tetanus. Pe- facility enne’s best interests to remain at that that, during past year, terson testified “[bjecause [had] she become accustomed to patients none of her had contracted Hib or day care [and] because the foster tetanus; many had had ear infections caused works daily there as well and has contact by pneumococcus, but none had suffered the with the child.” complications occur; more serious that can Cheyenne’s then pediatri- ADES called forty and about had ill become with rotavi- cian, Peterson, Mimi pur- who testified the rus. pose during their year first prevent life is “to illnesses that 9 At presented the close of the evidence are threats to the health of children in that ADES, Diana asked if the court intended age group.” Peterson stated that immuniza- “inquire quality ... about the of the reli- medically necessary tions are “sig- avoid gious accepts belief or exemp- [if it] that the nificant risk to the health and sometimes the response, tion is valid.” In argued ADES life of child.” Cheyenne [a] She noted that request exemption Diana’s for an was yet had not any received immunizations and Cheyenne already pro- invalid because was that, ordinarily, a child of age would have custody tective when Diana executed the received fifteen scheduled immunizations form. After ADES it conceded did not “have B, against hepatitis haemophilus influenzae any suggesting evidence reli- [Diana’s] b(Hib), type tetanus, diphtheria, pertussis, sincere,” gio[us] belief isn’t the court declined rotavirus, polio, pneumococcus. testimony to hear on the issue. Diana closed

¶7 evidentiary portion any hearing When asked if of these illnesses that, infants, witness, potentially proof were fatal an offer of Peterson called as a that, currently, testified an highest attorney testify assistant to her risk for would community children in the local probably representatives that she had contacted pertussis, commonly “whoop- thirty-four referred to as child-care facilities in the commu- ing cough.” reported having nity She seen sever- and all but three had indicated facility’s supported by provisions 1. The basis for an Arizona child-care relevant in the Arizona purported accept exemption appears refusal to affida- Administrative Code and inconsistent 36-883(C). vit in lieu of an immunization record is unclear. with the mandate of See Ariz. Ad- R9-5-305(A); R9-6-705(D) (child ADES asserted in its motion that Arizona child- min. Code required having exemption care facilities are not "to enroll children documented from immuniza- permanently exempt compliance who are from the immuni- tion shall be deemed "in with an requirement.” requirement”). zation But that assertion is not immunization accept exemptions cy, already would immunization for a a court determined has that the age. Cheyenne’s child of Cheyenne’s state’s interest health and wel- state, through fare its agency, entitled the respondent judge 10 The issued a written ADES, to temporarily invade Diana’s ruling motion, granting explaining the state’s custody physical legal of her child. Di- reasoning his as follows: disputed propriety ana has not ruling The Court bases its on the medi- dependency determination. testimony cal Dr. Peterson as well as finding that the Court’s Mother’s re- maintains, however, adju- She that the quest invalid, exemption having was awarding of dependency dication tem- been the Court executed after had ordered porary legal custody did temporary [ADES] have extinguish her status as a all of nor physical custody and of the minor. Bather, parental rights. Diana contends finds that the that, The court immunizations pursuant she retains to statute “residu- are in child’s best are the interest and parental rights,” including right al the to necessary safety. for the child’s religious determine affiliation of the her child and, therefore, decline, right the in con- ¶ 11 petitioned Diana then this court beliefs, formity religious with those to have special request, action relief. At her we have Cheyenne immunized. stayed judge’s respondent during the order pendency proceedings. the of these articulating 15 The statute the com parative rights upon of the state and Discussion adjudication § is an 8- beyond 12 It is that debate 531(5). statute, that Pursuant when liberty pro ents have a fundamental awarded by tected the Fourteenth “in the Amendment acquires care, custody, management” and chil of their embodying following a status all of the Kramer, 745, Santosky dren. v. 455 U.S. rights responsibilities: and 753, 102 71 S.Ct. L.Ed.2d 599 (1982); M., Bobby K. v. Kent 210 Ariz. (a) physical possession right The to have ¶ 24, (2005); 1018 110 P.3d re Co of the child. 5666-J, County chise Juvenile Action No. (b) duty protect, and the The (1982). 157, 161, 133 650 P.2d Ariz. train discipline and the child. interest, indepen Concomitant with that and (c) dently by protected responsibility provide Exercise Free Amendment, food, clothing, shelter, adequate Clause First child of the is care, provided guide upbringing education and medical rights responsibilities of their children. such Wisconsin shall be 205, 213-14, subject powers, U.S. rights, exercised to the (1972). responsibilities guardian L.Ed.2d 15 duties of the person2 subject to the of the residual rights 13 But those are not abso parental rights responsibilities if lute. an interest in “The state has the wel judicial by have not terminated de- been fare and health of children.” Cochise cree.3 5666-J, 133 Ariz. at P.2d at 463. added). Thus, great enough— (emphases “If Id. re- the interest of the state is state’s is, seriously sponsibility provide medical welfare of the child care for is “subject jeopardized expressly act is to” a and invade child —the rights family.” body parental rights and the and duties retained of the Id. Here, adjudication parent. through dependen- have 2. A a ward 3. Diana’s not been child determined to be residual terminated, juvenile Maricopa County approved of the In re Juv. court. court and the JD-6236, Action No. 874 P.2d plan family case reunification. (App.1994). [ADES], for each legislature prescribed 16 Our has not defined the rules of phrase parental rights,” [p]laced “residual nor has ... in a foster home.” A.R.S. 8-512(A)(l). 8-512(B)(1)(a), any published And, § § Arizona decision considered its meaning. But several have ex- legislature “may other states has directed such care pressly phrase, include, defined the when used program but is not limited to ... [a] context, parent’s right same to include a regular health examinations and immuni determine the affiliation of a child. including ... [vaccina zations as mínimums See, 12-15-1(24) (1975); e.g., § Ala.Code rubella, prevent mumps, smallpox tions to 19-1-103(93) (West § Ann. Colo.Rev.Stat. rules, polio.” According “[t]he to ADES 2151.011(A)(46) 1999); Ohio Rev.Code Ann. goal Comprehensive Medieal/Dental (Lexis 2007); Nexis Va.Code Ann. 16.1-228 Program for Foster Children is to (1999). during appel- And ADES conceded coverage ... full den for those medical and argument phrase late oral that the “residual necessary tal services which are parental rights” encompasses parent’s right optimal achievement and maintenance of religious upbringing to determine the of his physical level of and mental health for chil or her child. dren in foster care.” Ariz. Admin. Code R6 reasons, 5-6001. For those ADES is correct ¶ Moreover, we our understand explicitly authorizes it to “con legislature’s use of the term “residual” to provide sent to and immunizations to a de See, “that e.g., denote which remains.” Web pendent child foster care.” (1971) Dictionary ster’s Third New Int’l 1931 (defining “residual” as that which is “remain ¶ case, then, requires 19 This us to taken”). ing part § a after As used in 8- address the conflict between the state’s 531(5), suggests legislature the term in ticular interest to parents rights tended that would retain those welfare, promote their health Di and and expressly acquired by upon an statutory right ana’s constitutional and to adjudication dependency. Neither 8- religious upbringing direct the of her child. 531(5) any provision grants nor other discussing religious “[W]hen freedoms and authority state affirmative to make decisions providing the state’s interest in for the wel concerning religious upbringing of a de children, fare of the ‘accommodation between pendent child. Nor could the state assume religion] these freedoms [of and exercise any choosing specific role in religious instruc authority always of state is delicate.’” Co during tion for a child dependency proceed 5666-J, County chise No. 133 Ariz. at ing running without afoul of federal and state 465, quoting 650 P.2d at Prince v. Massachu Const, provisions. constitutional See U.S. setts, 438, 441, 321 U.S. 64 S.Ct. 88 (state I; XIV, amends. 1 not establish (1944) (second L.Ed. 645 alteration Co Const, (“No religion); II, Ariz. art. 5666-J). County chise No. public money ... appropriated shall be or for Supreme 20 The United States Court has exercise, applied any religious to worship, provided guidance performing that some instruction, support any or to delicate task. an Amish father establishment.”). conclude, therefore, We sought exempt his children from a Wiscon- that a determination does not law, compulsory-school-attendance argu- sin extinguish parent’s right to control the ing eighth grade that school attendance after religious upbringing of his or her child be family’s interfered with central tenets of his cause, by defining the terms of the statute 207-13, faith. 406 U.S. at 92 S.Ct. 1529- “legal custody,” passes never Although acknowledging 32. the state’s state. strong providing and traditional interest education, 18 But that conclusion does not end the Court found that interest “not 8-531(5) inquiry. gives totally our balancing process Section free from a when it responsi impinges custodian of child the on fundamental and inter- ests, bility specifically protected by “to with ... medical such as those Indeed, expressly required care.” ADES is the Free Exercise Clause of the First care, Amendment, “provide comprehensive ... and the traditional interest of respect upbring- Berger, State Ariz. P.3d (2006) (state’s ing of their children.” Id. S.Ct. compelling interest in at 1532. physical mental health of children self- Ohio, evident), citing Osborne v. 495 U.S. ¶ 21 The Court Yoder did not articulate 103, 109, 110 1691, 1696, 109 S.Ct. L.Ed.2d 98 precise formula for weighing a valid state (1990). expresses such an When state against parental rights. those But it interest through particular legislation, interest its “only emphasized that those interests judgments judicial policy are entitled def highest order those not otherwise served ¶¶ (Hurwitz, J., erence. Id. concur legitimate can overbalance claims to the free bounds, ring). it is Within constitutional religion.” exercise of Id. at 92 S.Ct. at courts, legislature, not the to assess the Thus, suggested the Court that a state importance comparative public health ini a compelling must demonstrate interest tiatives, requirements, such as immunization justify overriding combination reli- compromise arguably when those initiatives gious parental rights Id. at involved. values, other social such as those Diana as at 1536 (addressing whether Consequently, serts. when a state exercises in compulsory state’s education “is protect its “a child’s so that even the established reli- good directly health” and that exercise con gious practices give way”). of the Amish must parent’s religious rights, flicts with a Although dissenting colleague our parent’s rights “give way.” generally must suggests distinguishable Yoder is on its facts 5666-J, County Cochise 133 Ariz. at here, apply therefore its test does not 650 P.2d at 465. supreme our own court has utilized that test ¶24 similar, identical, in the context of if not Arizona has its au- not so exercised interests. See Cochise thority policy, in the immunization context of 5666-J, Ariz. No. 650 P.2d at 465 legislature however. Our has neither ex- in (applying “balancing Yoder interests of pressly implicitly any compel- nor articulated religious against freedom” the state’s interest ling in immunizing interest children over the children). recently, in medical care for More objections religious parents. of To their Supreme the United States Court has ac contrary, legislation directly in applicable to knowledged here, that the a com state must assert competing our state interests has pelling when an exercise of its au parent. struck balance in favor of the thority directly the combination conflicts with ¶ 25 The record that demonstrates ADES religious parental Em rights. of See sought Cheyenne, part, in has immunize Div., ployment Dep’t Human Res. Ore attends, because child-care center she Smith, gon U.S. works, her foster where mother also has (1990) (charac 1595, 1601, 108 L.Ed.2d 876 insisting that been be immunized terizing coupled free-exercise claim with a condition of her as continued attendance. hybrid enting right retaining situation provided legislature specifically Yet our has heightened protection). that children need not be immunized at-

¶23 “parents test applying the Yoder tend child-care facilities if their here, dispute that, object ground we do not as a [immunization] that proposition, practices state has an interest of conflicts with tenets and highest recognized religious order in the of its church or denomination health welfare parent an Maricopa children. In re Juv. Ac of which the or child is adherent JD-6123, 36-883(C). legislature § 956 or tion member.” (“[T]he (App.1997) similarly qualified and its in the im- P.2d has its interest attending public compelling citizens have state interest munization schools, pro parents may exempt their ensuring that all children in Arizona are whose appropriate any and are free children from immunization based on vided care 15-873(A)(1).4 § parental neglect.”); “personal from abuse or see also beliefs.” A.R.S. 15-873(A)(1) provides iy required proof for a 4. Section that documenta- immunization is Thus, Rather, asserting ligious upbringing far from a state interest of her child. 8-531(5)(c), alone, sufficiently § standing immunization as to confers an en- overcome Diana’s to determine the re- titlement exercise that in the context ligious upbringing of her Arizona law of other relevant Arizona statutes. As not- repeatedly pa- ed, instead honors faith-based express- immunization Arizona’s statutes objections rental to immunization. ly empower particular paren- honor and dependency tal interest. Even in the child ¶ 26 ADES maintains that these statutes context, legislature our has elevated the reli- necessarily legislative judg- do not reflect a gious parent rights of a above its own inter- outweigh ment that Diana’s interest should assuring children access to convention- est Specifi- the state’s interest in immunization. 8-201.01(1) al medical care. cally, legislature ADES contends the would (“A in good being child who faith is fur- not have struck the same balance in favor of by duly treatment nished Christian Science judicially Diana like who have been not, practitioner for that accredited shall temporarily incapable determined be alone, abused, reason be considered to exercising “proper and effective child.”). neglected care and control” of her child. A.R.S. 8- 201(13). vein, dissenting In the same our ¶ During argument, sug- oral colleague suggests erroneously we read the gested apply the Yoder test should not here dependency immunization and statutes because Diana has not made a concrete materia, pari “essentially mix- his view showing, equivalent Am- made ing apples oranges.” allowing Cheyenne ish substantially to be immunized would insult language 27 But we can find no whatever practices family’s the tenets and of her faith. in Arizona’s or immunization disagree. We The record is clear that Diana suggesting statutes the few residual objected to the immunization on a whose child has been ad- ground ap- and that she had submitted the judged dependent carry any should less propriate asserting form her intent ex- weight parents.5 than those of other In- empt Cheyenne stead, from immunization on that through language it chose to use ground. objection, contradiction or 8-531(5), Without legislature preserved our Di- has that, Diana’s counsel also asserted below ac- continuing right ana’s Chey- to determine faith, cording to her immunization involves enne’s upbringing notwithstanding polluting person’s something blood “with adjudication dependency. the of As dis- inappropriate.” that’s cussed, that, provides the statute even dependency proceedings, ADES’s and present Diana When offered to testi- duty provide the child medical care is mony specific “quality” about the of her reli- “subject remaining rights to” the few of the faith, gious responded that it had no 8-531(5)(c). parent. § suggesting evidence beliefs ¶ And, context, dependen- we need not read the were insincere. this we view as cy pari and immunization by objection statutes in mate- concession ADES that Diana’s 8-531(5)(c) § ria order to immunizing Cheyenne conclude that from stemmed bona preserves Moreover, Diana’s the re- determine views Diana holds. fide appropriate legal child to be admitted to school if ture is entitled to make distinc- parent parents, signed tions between "fit” and “unfit” Troxel v. [t]he ... submits a statement Granville, 57, 67-69, stating parent the school administrator that the U.S. 120 S.Ct. guardian or has received information about (2000), 147 L.Ed.2d 49 and to define its ” provided by department immunizations the parentis "in interest as it We loco sees fit. also health services and understands the and risks agree legislature require that the Arizona could potential benefits immunizations and the exception. of all immunization children without per- risks of nonimmunization and that due to Massachusetts, See Prince v. 321 U.S. 166- beliefs, guardian sonal the does not (1944). But L.Ed. 645 pupil. consent to the immunization of the we address here not the lawful boundaries of hypothetical legislation actually dispute dissenting colleague’s but the intent 5. We do not our undoubtedly conveyed by currently legisla- applicable correct observation that our our statutes. reason, any unlikely legisla- that our equipped principle we think it this court is logic weigh impor relative presumptively of law or the ture would have viewed the religious principles involved here piv- tance of the temporary legal dependency status of as Smith, against those asserted Yoder. See importance a non- weighing otal (“Judging 110 S.Ct. at 1604 U.S. urgent, procedure against irreversible centrality religious practices of different long-term raising parent’s unacceptable akin to [to faith] ‘busi determining religious up- the child’s evaluating the relative merits of dif ness of Certainly, bringing. we cannot assume that claims.’”), fering religious quoting United necessarily temporary such a status would Lee, 2, 102 263 n. S.Ct. States U.S. legislative judgment clearly ex- alter (1982) (Ste 1051, 1058 n. 71 L.Ed.2d 127 pressed immunization Arizona’s vens, J., concurring). parent’s religious statutes that a out- weigh in the immuniza- asserts, the state’s interest correctly 31 As ADES under scheme, tion of children.6 statutory Arizona’s it is the best child, parent, interests of the not the that are Supreme Court 33 As the United States paramount dependency proceeding. in a has observed: 8-843(A) (“At any dependency § hear A.R.S. liberty The fundamental interest of natural primary ing, the court’s consideration shall care, custody, manage- parents in the protection of a child from abuse or 8-845(B) (“In evaporate ment of their child does not § neglect.”); see also A.R.S. simply because have not been model reviewing and in de the status of the child disposition, parents temporary or have lost termining its order of the court safety the health and Even when blood shall consider their child to the State. concern....”). paramount strained, But the relationships child as are retain a Department pertinent overlooks that the irretriev- preventing vital interest embody judgment a legislative statutes also family of their life. able destruction that a child’s interests are best served 753, 102 Santosky, 455 U.S. at S.Ct. 1394- presumptive goal reunifying parent statutory scheme for 95. Because Arizona’s 8-845(C) (“In reviewing child. See neglect protecting the welfare abused court, possi status of the insofar interest, recognizes that both ed children ble, family.”); shall seek to reunite the see expressly preserving parental rights residual 8-843(E)(1) (at also initial by promoting eventual reunification depart hearing “the court shall order the reject parent, of child and we must ADES’s ment to make reasonable efforts to very implicitly suggestion that those statutes to the child and to facilitate services interest in immun reflect a family”); 8- the reunification of the izing child over the 812(C) (establishing treatment fund “with a religious objections. family preserva primary goal facilitating reunification, necessary, including, if tion or dissent, colleague expresses 34 In his our family maintain the unit in a services that parents holding will enable concern that our setting”). The substance abuse treatment to meddle in ADES’s children family presumptive goal of reunification of those pursue the best interests efforts fostering suggests a state interest in turn However, supreme court has children. our engagement up in the parent’s continued that, courts mediate the deli- instructed when dependent child to the extent bringing of the interests cate accommodation between state legal custody of the child possible, even after rights parent, of the and the constitutional passed to the state. has by necessity decided on case must be “[e]ach 5666-J, Moreover, its own facts.” Cochise procedure the medical (parent’s issue, immunization, Ariz. at 650 P.2d at For that is irreversible. cases, nothing prevents from ar- the state Obviously dependencies do culminate in those 6. some parent-child permanent ranging after the termination have the child immunized extinguishes any relationship, re- an event that parent’s rights have been severed. rights. maining parental 8-539. In refusal, objections procedure. to a medical religious ground, to seek based mere govern- involved different attention for her children insufficient But those eases medical adjudication). parental interests than those as- dependency basis for Con- mental and assertion, are, therefore, readily trary dissenting colleague’s serted here and distin- to our permitting guishable. presented no evidence that ADES posed Cheyenne to remain unimmunized ¶37 Karwath, Ap In the Iowa Court of Moreover, risk to her health. had imminent peals weighed the medical needs of three Cheyenne’s the record demonstrated that tonsillectomies greater specific need for immunization was objection against their father’s faith-based average than that of the we could no procedure. 199 N.W.2d at 149. With longer rely general on our immuniza- state’s analysis, tersely court little concluded policy gauging tion the stature of the state that, the best interests of children “[w]here And, interest involved. we follow our su- involved[,] parental preference are even that, preme emphasizing lead in un- court’s upon religious belief based asserted circumstances, der most the state’s interest But, required give way.” at 150. Id. safeguarding the health and welfare by legislation, Iowa court was unconstrained children will override a constitution- Arizona’s, expressly subordinating like ally protected determining interest state’s health and welfare interest (“[W]e religious upbringing. child’s Id. em- procedure medical at issue to the father’s phasize that we were faced with an actual religious upbringing in the of his children, ... illness of one of the the scales children —the central consideration here. tipped would have freedoms Moreover, clearly the evidence established yield.”). would be forced surgeries necessary that the were “with rea example, certainty pre 35 For we would not hesitate to sonable to restore and find a state interest had the De- serve the health of these wards of the State.” added). Here, seen, partment especial- (emphasis shown that was Id. there ly prevented showing Cheyenne’s vulnerable to the diseases was no need for immunization, perhaps any greater due to malnutrition or immunization was than that of a nondependent some other medical condition.7 But the evi- child. only dence addressed com- health risks ¶38 Stratton, pa- the court addressed mon all preventable children that are religious objections to a rental legisla- immunization. We must assume the child’s immunization under a immu- ture it considered those risks when drafted nization to Arizona’s. 571 statute similar

Arizona’s immunization statutes to include But there the did not S.E.2d exemptions beliefs.8 As we rights possess any claim to residual observed, incorporate have those statutes law, under North Carolina policy parental rights decision to honor —a rejected the court their contentions on the decision we have no to second- ground that all such had been extin- guess. guished by dependency determination. (“Once Karwath, Relying on In re 199 Id. at it has been determined (Iowa 1972), Stratton, neglected and In re that a is unfit or has his N.W.2d (2002), child, decision-making 571 S.E.2d 234 loses his N.C.App. contrast, argues ability right.”). By that courts of other Diana has states as of stature, express- have come to a different conclusion when an interest of constitutional statute, weighing ly preserved by direct the the state’s interest the welfare of Arizona Thus, dependent against parent’s religious upbringing child a faith- of her child. infants, given Cheyenne posed that it embedded 7. Dr. Peterson testified that was in cial risks exemption "[e]xcellent health" at the time of her last check- in immuni- an for beliefs its up percentile" facilities, and “was in 50th to 75th relating to zation scheme child-care weight. exemption necessarily applies to infants that both and children. risks, considering those we must also as- legislature contemplated any spe- sume that the resolved, custody generally agree reasoning permanent is see A.R.S. while we 8-533(B)(8)(b) 8-862(A)(2) (C), Stratton, §§ in Kanvath case both neither supports in and no evidence the record provides resolving in much assistance majority’s that her immunization conclusion here. issue ¶32, “non-urgent,” supra. is To the con trary, undisputed per the evidence is CONCLUSION mitting Cheyenne to remain “unimmunized ¶ Generally, when the state exercises poses significant risks to the health and compliance to direct with a medical child,” sometimes the life of the even more so procedure promote the health and welfare testimony here in view of Peterson’s compelling it asserts a even routine infections can be life-threaten well-being interest in the sufficient to child’s Thus, ing Cheyenne’s age. to an infant of parent’s right override the to direct the reli- although majority that “noth maintains gious upbringing of his her child. Howev- ing prevents arranging to the state from er, case, we must evaluate each and the state have the child immunized after the involved, When, interest on its own facts. severed,” rights supra, been n. if that have here, qualified paren- the state has its in loco pro is the ultimate result of the in dependency preserve tis status so as to ceedings, delay unacceptable light is in such has, parental right legis- in specific other statutory obligations of ADES and the lation, particu- in a subordinated its interest juvenile protect court to this child and the procedure parental right, to that lar medical testimony unchallenged medical that her im disregard we exceed our role if we those necessary medically are now. munizations determinations, legislative no matter how respondent judge’s decision that immu or foolish consider them to be. wise we Cheyenne’s nization is in best interest and expressed compel- Because Arizona has not necessary safety supported by is ling overriding Diana’s con- state interest record, in the not an reasonable evidence was tinuing right religious upbring- to direct the discretion, to our abuse of and is entitled Cheyenne ing of her child while remains Maricopa deference. In re Ju dependent, see 406 U.S. at JD-6236, Ariz. venile Action No. juvenile we vacate the court’s S.Ct. (App.1994) (appel P.2d authorizing Cheyenne order to have “generally late court deferential when the immunized. its discre court exercises substantial placement tion to make decisions the best VÁSQUEZ, L. CONCURRING: GARYE juveniles ... [and] interest of re Judge. discretion”) such orders for abuse of view[s] (citation omitted). ESPINOSA, dissenting. Judge, ¶ 42 As a matter of constitutional law and major- I respectfully disagree with the construction, statutory support little there is because, ity’s reasoning my result and majority’s premise that the state for the view, effectively it elevates the in the must establish irresponsible parent over the needs of an specific procedure of immunization because justifies by patching it innocent child and objected procedure to that Diana has together constitutional doctrines and statutes equally religious grounds. And there is bearing no on the situation at hand. have majority’s conclusion scant foundation for the majority acknowledges, As the somewhat “legislatively that Arizona has subordinated” hollowly, religious rights even fundamental immunization, including any state interest when it comes to the best are not absolute its interest of a child. interests objec- custody, parent’s religious to a its outset, majori- appreciate majority 41 At the I tion. The has erred as result Yoder; ty’s Chey- its failure to misplaced concern ADES’s its reliance on temporary plan goal appreciate and the ease between the state’s enne is the difference par- and its But could remain interest in child welfare reunification. obligations year interests and custody for more than a until ticular custodial recognized princi- as a cardinal respect preme as a Court with to custody, child; ple “that the care and nurture of the that statutes reflect- and its insistence parents,” in but added: child reside first the ing general public interest the state’s health immunization, parent’s [Njeither in which defer to religion rights of rights of nor religious objection, necessarily modify the Acting parenthood beyond are limitation. particular obligation more under Title guard youth’s state’s to the 8, A.R.S., may care for a de- being, parens patriae well the state as result, majority’s pendent by requiring child. As a the restrict control attendance, authority regulating prohibit- limitation on the court’s is or school labor, many other jurisprudence ing as a matter of both the child’s and unsound merely ways. authority not nullified public policy. and state Its parent grounds his claim to because the Constitutional Considerations on control the child’s course of conduct Thus, religion he cannot or conscience. ¶ 43 majority The relies on Yoder for compulsory claim freedom from vaccina- “guidance” failing in this context while than himself on tion for the more for recognize crucial distinctions between that religious grounds. practice presented case and the circumstances here. freely liberty religion does not include Yoder, Supreme Court found community com- expose the or the child to parens patriae9 compulso state’s interest in disease or the latter to ill health municable ry secondary education insufficient to over death____[T]he range or state has a wide come the interest of an Amish who limiting parental power for freedom regulation had shown that such would authority things affecting the child’s “gravely endanger, destroy, not the free welfare; includes, extent, and this to some Yoder, exercise of [Amish] beliefs.” matters of conscience and convic- 1535, 406 U.S. at 92 S.Ct. at tion. The father Yoder had “the demonstrated (citations 166-67, Id. at 64 S.Ct. at 442 adequacy of their alternative mode” of voca omitted). footnotes The Court concluded: accomplish tional instruction to the overall martyrs be state, 235, Parents free to become interests advanced id. they But it follow themselves. does not persuasive S.Ct. at and had “introduced free, circumstances, are in identical accommodating evidence ... reli [their] martyrs they make of their children before gious objections impair ... [would] age full have reached physical or mental [their] health child[ren],” discretion when can make that choice id. at 92 S.Ct. at 1542. However, observed, sure, for themselves. the Court “To be power parent, of the even when linked to Id. at at 444. S.Ct. claim, may subject free exercise parental 45 Yoder’s critical distinction of Massachusetts, limitation under Prince [v. jeopardize safety decisions that the health 321 U.S. 88 L.Ed. 645 child, specific reference in (1944),] appears if it decisions im- compel Prince to a state’s jeopardize safety will the health or parent’s religious despite munization ob- potential significant or have a social jection, present the most obvious funda- burdens.” Id. at 92 S.Ct. at 1542. this case and mental differences between Prince, Supreme 44 In Di- Court had Yoder. And unlike the that accommo- upheld provided the state conviction of a Jehovah’s ana has no evidence niece, religious objection im- permitting dating Witness for her a child her would not legal custody, publications pair Cheyenne’s physical and would to sell health adequate street in violation of state child labor law. constitute an alternative to providing Cheyenne 321 U.S. at 64 S.Ct. at 439. The Su- state’s interest Dictionary patriae," "parent his or her themselves.” Black's Law 9. "Parens Latin for country,” capacity (8th ed.2004). is defined as "the state in its provider protection to those to care unable 142 Indeed, parent

medically necessary care. the un- tween a “fit” and “unfit” when a are at issue: presented respon- child’s best interests disputed evidence judge required contrary dent the conclusion. allege, no Troxels did not court [T]he found, par- an unfit has Granville was ¶46 equally A less obvious but critical important, aspect ent. That of the case is in distinction between this case and Yoder presumption parents that fit for there is a volves the different interests at stake. As act the best interests of their chil- concedes, majority the “it is the best inter dren____Accordingly, long parent so as a child, parent, ests of the not the that are adequately cares for his or her children paramount dependency proceeding.” in a (i.e., fit), normally rea- is there will be no ¶ 31, supra. Supreme But the Court Yo inject son for the State to itself into the pointedly der did not address the “interest of private family ques- to further realm contrasted with that of the child as the ability parent tion the of that to make the proper possible ents” or “the resolution of concerning rearing the best decisions children, parents, competing interests of parent’s children. 230-31, 406 92 at the state.” U.S. S.Ct. (citation 68-69, Id. at 120 at 2061 omit- S.Ct. the Court was concerned ted). majority To the extent the finds no only parents, with the “interest of as con basis to conclude that the “residual 232, that of the state.” Id. at 92 trasted with parent adjudged has been de- whose child Specifically, at 1541. the Court consid S.Ct. carry any pendent weight should less than power impose crimi ered the the state ¶ 27, supra, parents,” those of other Troxel penalties parents refusing nal on Amish authority. clearly provides that religious grounds to send their children to ¶48 Here, Cheyenne’s adjudication aas contrast, school. Id. In this case raises the child was a determination question competing how the interests proper that she is need of and effective “[i]n child, parent, and the state are affected parental care and control and ... has ... no judicial parent determination that the is guardian willing to exercise or unwilling properly or unable to care for the exercising and control.” capable of such care child. 8-201(13). every The state thus has rea- decided, Supreme 47 Since Yoder was question ability Diana’s to make the son has addressed the considerations rele Cheyenne’s Court decisions for care and no best necessarily vant to a child’s best interests and has made presume that she would reason parent’s Cheyenne’s clear that deference to a decisions act in accordance with best inter- Troxel, dependent on “the about a child’s care is ests. 530 U.S. at adjudication presumption traditional that a fit will at 2061. And the of de- S.Ct. in- pendency act in best interest of his or her child.” resulted Granville, 57, 70, 120 justifies delegation terest of deci- Troxel v. U.S. S.Ct. (2000) juvenile (plurality Cheyenne’s care to the 147 L.Ed.2d 49 sions about JD-6123, (court Maricopa County No. opinion) must afford “at least some court. 392, special weight” “fit” decision re Ariz. at 956 P.2d at 519. This interest visitation). Yoder. But be- garding grandparental more than sufficient under While only parental rights, recognizing “fundamental cause Yoder dealt generally and no au- concerning provides guidance it little here to make decisions care, children,” limiting dis- custody, thority for court’s and control of their decisions for a de- the Court ex cretion to make medical id. at 120 S.Ct. importance pendent be- child.10 plained of the distinction state, Employment when a child’s interests are at majority’s Divi and a 10. The citation of issue, Yoder, sion, Oregon U.S. at 92 S.Ct. at Department Human Resources Smith, that Smith —in are here. And it is doubtful 494 U.S. ¶ 22, (1990), generally rejected Supreme supra, which the Court does not alter L.Ed.2d acknowledgment scrutiny neutral laws of Supreme strict test for Court’s religion, incidentally way proper applicability that burden determines the Yoder case "in no parent, 110 S.Ct. at 1599-1602— 494 U.S. at resolution” of a conflict between voluntary commitment to mental to Providing respect in Medical Interest State’s and obli facility). interests Dependent ADES’s health for a Child Care paren in loco resulting from its role gations ¶ 49 view, majority goes my also In pat parens its in from tis this case—distinct characterizing state’s interest astray in Cheyenne as a specific and to riae interests “in a interest this case as by provisions governed dependent child—are and wel promote to their health 8, statutory duty to a Title and include fare,” 19, asserting pub supra, and in comprehensive provide her pertaining to immuniza regulations lic health 8-531(4). 8-512, As our su §§ care. See are required for child-care attendance tions explained: preme court has competing inter “directly applicable [Cjhildren par- property of their are not ¶ 24, interest supra. The state’s ests here.” only interrupt- ents whose control and welfare of chil promoting the health fault; contrary, by finding on ed patriae in parens the state’s dren describes special ... have needs ... children residing in respect to all children terest with law[, including] the rights protected ... state; it is the same interest identified proper parental con- right to effective and Supreme in Yoder and Prince Court found to be care. If a child is trol and County supreme No. by our court Cochise parental care and control and without such 5666-J. capable of exer- parents willing or without ¶ But, 8-531(4), as pursuant to 50 control, the child is a cising such care and Cheyenne’s stands “in loco custodian now and entitled to have such dependent child ” is, place “in parentis to —that through the control furnished care and Dictionary parent.” Black’s Law 803 state. 2004) (8th to, (“Of, acting relating ed. No. Maricopa County Juvenile Action In re temporary guardian or caretaker of a 197, J-75482, 588, 590-91, P.2d 111 Ariz. 536 taking responsibilities all or some of the (1975).11 199-200 Ariz. parent”); Bryan Bryan, see v. 132 353, 1, 1267, jurisdictions have rec- (App. 1 51 Courts other 354 n. 645 P.2d 1268 n. circumstances, 1982) (“In that when embody ognized, in similar parentis loco is a status providing ideas; first, interest ing assumption of a the state’s custodial two status, second, dependent conflicts care to a parental discharge of medical interest, R., duties”); parent’s religious a court parental Parham v. J. with a see also on the best resolve the conflict based 99 S.Ct. 61 must U.S. (1979) (“state example, For In re having interests of the child. agency L.Ed.2d 101 (Iowa 147, 1972), Karwath, 199 N.W.2d and control of the child loco ” his children asserted duty to consider child’s best inter entis has challenge, on reli- may “speak for the child” with residual ests view, analysis request my proper of Diana’s compelling has "reaffirmed” a state interest re- recognition requires crucial dis- of this for relief parent challenges quirement a decision when a parens patriae between the state’s limited tinction interests, 22, supra. that affects fit, authority to interfere with a custodial 134, See, e.g., Harrington, Leebaert v. 332 F.3d parent and "invade the decision and Cir.2003) (Smith's (2d "hybrid claims” 143-44 5666-J, County family,” Cochise No. see dicta; objection language parent's 463, 161, obligation, 650 P.2d at and its Ariz. at subject mandatory to rational health education acting parentis, for the needs in loco review); Douglas County Anaya, v. basis have been child whose 601, 552, (2005) (par- 694 N.W.2d 605-06 Neb. County No. J- unable to do so. See Pima found testing objection of infant did ent’s to metabolic (noting at 712 P.2d at 434 Smith)-, scrutiny implicate under see strict responsibilities custodial ADES’s Boozman, F.Supp.2d v. also Boone children). concluding majority thus errs in (E.D.Ark.2002) (noting Smith included n. 38 5666-J, pertained which Cochise example compulsory of children as immunization pre- against a custodial to state action subject interests, not be of state action that should best to act in her children’s sumed test; Smith, identical, "similar, citing pa- 494 U.S. if not involves here, 1605-06; State, implicated Cude as those rental interests” (1964)). supra. 237 Ark. 377 S.W.2d gious grounds, tonsillectomies that had presumption been and is based on a that he or recommended for prevent the children to she will act in the best interest of the child. recurring infections. Supreme The Iowa Therefore, parent may longer enjoy no Court concluded that “statutory the state’s paramount status his or her conduct is duty provide ordinary pre- medical care inconsistent presumption with this or if he supposes in appropriate do so or she responsibilities fails to shoulder the child____ parental objection circumstances over even in that are rearing attendant absence of [the] immediate risk to life or Unfitness, neglect, and abandonment clear- Thus, limb.” Id. at 150. “where the best ly constitute conduct inconsistent with the interests and welfare of in children care and protected parents may enjoy....” status custody reasonably require of the State med- Howard, Price v. 346 N.C. 484 opposed by ical parent, treatment residual (1997) (citations 528, S.E.2d 534-35 omit- parental rights prevent cannot be invoked to ted). unfitness, neglect Once or other ac- it.” Id. tion inconsistent with parent’s constitu- tionally protected found, interest has been ¶ Stratton, 428, 52 In re N.C.App. 153 571 a court should revert ato basic determina- (2002), persuasive. S.E.2d 234 is also That tion of what action is in the best interests case addressed the identical issue raised Here, of the child. Id. the trial court here: adju whose children had been found that immunization was in the best dependent appealed dicated a court order interest of the Stratton children. authorizing legal the children’s custodian to have them immunized. Id. at par 235. The Stratton, 571 S.E.2d at 237-38. Stratton that, ents there maintained because their correctly proper identifies the standard for a parental rights terminated, had not been juvenile apply court to relating conflicts statutory were entitled to assert a ex the care of a child: the best inter- emption from North mandatory Carolina’s ests of the child. “ immunization laws based on their ‘bona fide ” Statutory religious 236, beliefs.’ quot S.E.2d at Construction of A.R.S. 8-512 (2001). ing N.C. Gen.Stat. They 130A-157 majority recognizes that a state immunizing contended that their children may constitutionally require the immuniza while in temporary custody of the state despite tion of children would be a “violation of [their] constitutional objection, 24, supra, see and there can be ly protected religious beliefs” that could not question no proposition. serious about this justified in the absence of “medical emer Prince, 166-67, See U.S. 64 S.Ct. at gency strong or other need for immuniza 442-43; Stone, see also Brown v. 378 So.2d tion.” 571 S.E.2d at 237. “ (Miss.1979) 218, 222 (citing ‘great weight of ” ¶ 53 The court Stratton noted that authority' holding mandatory immuni “[North Carolina] courts do not have a histo- zation laws not violate the constitu “‘do[] ry routinely ordering performance tional anyone, religious grounds procedures medical pa- on children without otherwise’”). majority But the reasons “ rental acknowledged consent” and ‘the legislature, providing that our reli custody, care and nurture of the child reside gious exemption require from immunization ” parents.’ first in the Id. at 571 S.E.2d care, attending day ments for children has Prince, quoting 321 U.S. at necessarily determined Arizona has no But, reasoned, at 442. the court compelling state interest de “A parent’s constitutionally pro- pendent natural children that would override a sup ¶¶ paramount 23-25,

tected compan- religious objection. ent’s See care, ionship, custody, Prince, and control of his or See U.S. ra.12 counterpart her child is a reasoning S.Ct. at 442-43. This infirm responsibilities together has assumed because it draws and conflates com 36-883(C) Although majority exemption rule-making cites but addresses the au- determination, legislative ¶ 59, for this thority of ADHS as discussed in infra. supra, actually provide this statute does not such dressing care of children pletely statutes to arrive at a con unrelated juvenile and the supported none. of ADES clusion authority to make custodial decisions court’s observation, majority 55 As an initial for those children accordance with statuto legisla- negative relies on a inference that the ry guidelines. In re Pima Juve exemption ture’s choice to J-78632, nile Action general population from immunization for (1986) (legislature 712 P.2d “intend expression is an affirmative power to act for the ed that have [ADES] interest, it has no and therefore subject juve dependent child benefit of a authority, have no chosen different also, review”); e.g., nile court see certainly children. But course 8-201(13) (definition “dependent §§ legislature there are other areas which the child”); (“[j]urisdietion 8-202 to, regulate could but declines because court”); (“[comprehensive justify the state lacks sufficient interest 8-514.05(c) care; guidelines”); and dental intervention, simply prac- but as a matter of (foster consent to routine medi priorities tical acknowl- inclination. As 8-845(B) procedures); (“[disposition cal edged by majority, religious exemp- hearing”; considerations for review of child’s § permitted by tion from immunization 36- status). merely legislative grace; 883 is a matter of it should not therefore be elevated to a consti- ¶ 8-512, Chapter in 5 58 Section located juvenile tutional shackle aon court’s deter- Placement”) (“Child of Title 8 Welfare and mining dependent the medical needs (“Children”), provide com requires ADES to child. legal in prehensive medical care to a child its by Depart prescribed

¶ rules of the Equally problematic majority’s 56 is the expressly regular ment. Such care includes implicit requirement provisions 8-512(B) First, provides immunizations. governing dependent Title 8 the care of chil for certain immunizations to be included pari dren be read in materia with those medical care “as minimums.” Id. In addi statutes, public health and education essen tion, Department specify complete “a rules tially mixing apples oranges. and It is preplacement medical examination ... [that] “[s]tatutory provisions well established that specified shall include as a minimum” vacci are to be read in the context of related previously provided nations “if not to the provisions statutory and of the overall provide foster child” and also for the inclu scheme,” relating and “[s]tatutes to the same “Comprehen in its sion “immunizations” subject pari matter should be read in mate Program sive for Foster Chil Medical/Dental legislative ria to determine intent R6-5-6005(A)(1), dren.” Ariz. Admin. Code harmony.” Dep’t maintain v. Ariz. Goulder (11). pro goal of the ADES medical Transp., 177 Ariz. 868 P.2d gram provide coverage ... full “is to (App.1993), aff'd, 999 179 Ariz. 877 P.2d those medical and dental services which are (1994). 280 But that is not the situation necessary to the achievement and mainte health, Although many public here. optimal physical nance of an level education, statutes cited mental health for children in foster care.” immunizations, they this do not ease refer The clear Ariz. Admin. Code R6-5-6001. Instead, statutory share the same scheme. purpose of 8-512 is to for the pro “were enacted different times legally medical needs of children who become Employers tect different interests.” Mut. dependent upon for that care. the state McKeon, 765 Cas. Co. (1988) (statutes regarding unin P.2d contrast, 36-883, Chap- 59 In found coverages sured and underinsured insurance (“Child Programs”) 7.1 of Title 36 ter Care pari read in materia with statutes (“Public Safety”), Health and authorizes liability coverage). addressing “regarding rules promulgate ADHS to health, adjudi- safety well-being of the children has been Because facility,” for in a child care with dependent, proper point of refer- be cared cated any ad- the caveat that infle related to education- specifically ence must be those statutes activities, examination, physical al 61 There is no reason to believe the ap- legislature public treatment or immunization “shall include intended these health stat- exemptions” pertaining to immunization of children propriate for children whose utes parents object ground attending child-care facilities and schools to pertain together provisions belief. The statute does not to the be read with Title 8 children, Instead, by regarding so care of children. its the care terms, public prohibit speaks the statute health that an unfit could the child’s day religious grounds. concerns about all children enrolled immunization on Section unambiguously grants care. 8-512 custody, to immunize children its (“School Similarly, Article 6 Immuni any challenged decision ADES as custodi- zation”) (“School Attendance”) Chapter subject indepen- an is court’s (“Education”) in Title 15 does not address dent determination of the child’s best inter- the state’s care of children but J-6236, Maricopa County ests. See only public deals health con Ariz. at 874 P.2d 1008-09. No 15-872, A.R.S., requires cerns. Section statutory ambiguity calls for further inter- pupil “a shall not be allowed attend school pretation. submitting documentary proof’ that without ¶ Moreover,

he or immunized in accordance there is no conflict she has been between authorizing §in immu promulgated provisions with rules ADHS in accor § per dependent public with 36-672. 15-873 nization of a child and the dance Section parent guardian exempt regulations by the mits a or his or health statutes and cited recognize require majority. provisions her child from these immunization Those the by submitting signed acting parentis, a of a in loco ments statement custodian here, parent immuni guardian the or has received informa as ADES is either authorize ADHS, request exemption. tion about immunizations from un zations or See A.R.S. (“ 15-101(15) po ‘[p]arent’ §§ means the natural derstands its risks and benefits the nonimmunization, adoptive parent person tential of and does of a child or a who risks or 15-101(16) (“ child”); per ‘[pier- a not consent to the immunizations due to has of 15-873(A)(1). However, custody' legal § a a or sonal beliefs. son who has means exempted guardian person from immuni a to whom custo child who has been of “during dy given by of a zation must be excluded from school of the child has been order periods person parentis immuniza court or a who stands in loco outbreak of communicable (informed child”); tion-preventable by diseases as determined 36-673 consent for by department “person health services or local school immunizations loco of R9-6-706(F) (“re 873(C); entis”); § department.” see also Ariz. Admin. Code health 15— Harmon, may of Maricopa County Dep’t sponsible person” Health submit statement 1364, 1369-70 161, 166-67, immunization child-care exemption 750 P.2d from R9-6-701(42) (neither right facility); Ariz. Admin. Code (App.1987) to education nor (“ expression religion ‘[Responsible person’ violated has the same mean free R9-5-101”); Ariz. by county department excluding ing ‘parent’ order as Admin. health R9-5-101(79) (“[p]arent” “[a] children from school attend includes nonimmunized Code father,” adoptive community). “[a] natural or mother or ance after measles outbreak appointed by a of com pub legal guardian also attest to the court Other related statutes legislature’s petent jurisdiction,” or ‘custodian’ as de “[a] lic health nature of the 8-201”). See, Perhaps § e.g., fined in A.R.S. more to school children. case, conflict, point § in this there is no (permitting local health de A.R.S. 36-673 otherwise, legisla school immuni constitutional or partments provide no-cost deferring to a decisions as train nurses to administer ture’s zations and school fit 36-697(B)(3) (ADHS but, them); public laws in the case § “health a matter of health parent has been program” goals “increasing] include child whose start unfit, juris deferring instead to the receiving age appro deemed the number of children juvenile years age”). of the court. priate immunizations two diction (Amish compulsory sec- short, parent demonstrated statutory- no there exists “substantially inter- ondary would education to the con- ambiguity respect with conflict or religious development with the fer[e] so, being “appli- §of That struction 8-512. way integration his Amish into to two pari of the in materia doctrine cation community at the life Amish faith at different times deal statutes enacted development”). stage crucial adolescent brings more confu- problems, different McKeon, 159 enlightenment.” than sion majority P.2d at 516. Conclusion

Ariz. reading limited therefore errs majority’s dis- 65 I decision believe fit, govern by public health statutes that that a legislature’s clear mandate places the parents’ of their chil- custodial enrollment child’s court facility in a or school. dren child-care child’s inter- care in with the best accordance 5666-J, ests, County No. Cochise see majority although Finally, re- treating the Ariz. 650 P.2d at rights” peatedly refers to the “residual lan- safety paramount of a child as health and 8-531(5)(e) §in and concludes Diana’s guage 8-845(B). concern, majority’s Under ability upbringing to “direct the objec- approach, if a raises expense at the of the child’s her child” —even receiving tion child’s “expressly pre- been medical needs —has care, to be the the welfare the child ceases ¶ 38, statute,” supra, served that assertion juvenile court.13 governing standard for the only be rewrites can true this court Instead, ADES establish that must religion statute. Nowhere 8-531 is ever particular procedure health benefits from a and, “compelling mentioned reasons outlined interest” give rise to proposed above, before a court authorize the there factual is no basis for expressly Title 8 includes care —even when believing the legislature intended such an compre- procedure part at as of the issue unstated contradiction to the direct mandate must medical care ADES hensive dependent 8-512 that dependent children. 8-512. This re- comprehensive state’s receive medi- only legislative sult is not inconsistent with care, Thus, including cal immunizations. public policy of intent offends the state’s but assertions, majority’s contrary to helpless protecting providing for its most expressly not in- state has “subordinated its children, dependent whose citizens — procedure particular terest unwilling so. are unable or to do child] [for respectfully 66 I dissent. Furthermore, ¶39, parent.” supra. even determining “religious a child’s affiliation” is parent properly remains with the at oral

argument acknowledged it “honors” as a practice, not demon-

matter Diana has

strated, suggested, notwithstanding or even convictions,

her prevent would or interfere with religion

raising her in the of Diana’s choice. U.S. at

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

Case Details

Case Name: DIANA H. v. Rubin

Court Name: Court of Appeals of Arizona

Date Published: Nov 21, 2007

Citation: 171 P.3d 200

Docket Number: 2 CA-SA 2007-0085

Court Abbreviation: Ariz. Ct. App.