In Re Elianah T.-T. , 327 Conn. 912 ( 2017 )

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IN RE ELIANAH T.-T.—CONCURRENCE
ROGERS, C. J., with whom PALMER, EVELEIGH,
ESPINOSA and VERTEFEUILLE, Js., join, concurring.
In her original brief to this court, the petitioner, the
Commissioner of Children and Families, claimed that
General Statutes §§ 17a-10 (c)1 and 17a-1 (12)2 author-
ized the Department of Children and Families to vacci-
nate children in the petitioner’s temporary custody over
the objection of the children’s parents. After the original
opinion in this case was released, the petitioner filed
a motion for reconsideration in which she raised several
new arguments, including that General Statutes §§ 17a-
93 (4),3 17a-98,4 and 46b-129 (j) (4)5 confer on her full
guardianship over children committed to her temporary
custody pursuant to Chapter 319a of the General Stat-
utes governing child welfare. I agree and join with the
majority that it would be inappropriate to consider the
petitioner’s new statutory claims at this late date.
Accordingly, I express no opinion as to whether §§ 17a-
93 (4), 17a-98 and 46b-129 (j) (4) were intended to confer
on the petitioner full guardianship rights over children
in her temporary custody, including the authority to
authorize any and all medical treatment for those chil-
dren over the objection of their parents.
I write separately, however, to emphasize that, if
the petitioner’s interpretation of these statutes were
correct, I would have grave doubts about their constitu-
tionality as applied in these circumstances. See San-
tosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982) (‘‘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 [s]tate. Even when blood
relationships are strained, parents retain a vital interest
in preventing the irretrievable destruction of their fam-
ily life.’’); see also Diana H. v. Rubin, 217 Ariz. 131,
136, 171 P.3d 200 (App. 2007) (under federal constitu-
tional due process principles, when parents object to
vaccination of child in temporary custody of state,
‘‘state must demonstrate a compelling interest to justify
overriding the combination of religious and parental
rights involved’’); In re G.K., 993 A.2d 558, 566 (D.C.
App. 2010) (under statute defining ‘‘residual parental
rights,’’ parents retained right to consent to certain med-
ical treatment for child in legal custody of state); In
the Mattter of Lyle A., 14 Misc. 3d 842, 850, 830 N.Y.S.2d
486 (2006) (implicit in routine procedures used by
Department of Human Services was that ‘‘[a] parent
whose child is in foster care has the right to make the
decision regarding whether or not his or her child will
be given psychotropic drugs’’); In the Matter of Martin
F., 13 Misc. 3d 659, 676, 820 N.Y.S.2d 759 (2006) (if
parent of child in temporary foster care opposes admin-
istration of mental health medicine it cannot lawfully
be prescribed unless court determines ‘‘whether the
proposed treatment [by medication] is narrowly tai-
lored to give substantive effect to the [child] patient’s
liberty interest’’); In re Guardianship of Stein, 105 Ohio
St. 3d 30, 35–36, 821 N.E.2d 1008 (2004) (‘‘the decision
to withdraw life-supporting treatments goes beyond the
scope of making medical decisions,’’ and, therefore,
‘‘[t]he right to withdraw life-supporting treatment for a
child remains with the child’s parents until the parents’
rights are permanently terminated’’); but see In re Deng,
314 Mich. App. 615, 626–27, 887 N.W.2d 445 (because
determination of unfitness ‘‘so breaks the mutual due
process liberty interests as to justify interference with
the parent-child relationship,’’ state could vaccinate
children in temporary custody over objection of parents
pursuant to statute allowing parents to opt out based
on religious objections [internal quotation marks omit-
ted]), appeal denied, 500 Mich. 860, 884 N.W.2d 580
(2016). In my view, when the petitioner has only tempo-
rary custody over a child and the rights of the parents
have not been terminated, the parental right to make
decisions for the child, the child’s interest in continuing
good health and the state’s parens patriae interest in
protecting the well-being of the child must be balanced.
See In the Matter of McCauley, 409 Mass. 134, 136–37,
139, 565 N.E.2d 411 (1991).6
Under the assumption that this balancing test is con-
stitutionally required, I also believe that, with respect
to the narrow question of whether the petitioner has
the right to authorize the vaccination of children in her
temporary custody, our legislature has already con-
cluded as a matter of public policy that the interest of
parents in opting not to vaccinate their children on
religious grounds outweighs the child’s interest in being
immune from certain diseases and the state’s parens
patriae interest in ensuring the well-being of the child
and the public at large. See General Statutes § 10-204a
(a) (‘‘[a]ny such child who . . . presents a statement
from the parents or guardian of such child that such
immunization would be contrary to the religious beliefs
of such child . . . shall be exempt from [certain immu-
nizations required for attending school]’’). I can see
no reason why this policy determination would not be
binding on the petitioner and the courts. Therefore, I
find it highly unlikely that the petitioner would have
the right to vaccinate a child in her temporary custody
over of the objection of the parents, and I concur in
the granting of the motion for reconsideration, but the
denial of the relief requested therein.
1
General Statutes § 17a-10 (c) provides: ‘‘When deemed in the best inter-
ests of a child in the custody of the commissioner, the commissioner, the
commissioner’s designee, a superintendent or assistant superintendent or,
when the child is in transit between [Department of Children and Families]
facilities, a designee of the commissioner, may authorize, on the advice of
a physician licensed to practice in the state, medical treatment, including
surgery, to insure the continued good health or life of the child. Any of said
persons may, when he or she deems it in the best interests of the child,
authorize, on the advice of a dentist licensed to practice in the state, dentistry,
including dental surgery, to insure the continued good health of the child.
Upon such authorization, the commissioner shall exercise due diligence to
inform the parents or guardian prior to taking such action, and in all cases
shall send notice to the parents or guardian by letter to their last-known
address informing them of the actions taken, of their necessity and of the
outcome, but in a case where the commissioner fails to notify, such failure
will not affect the validity of the authorization.’’
2
General Statutes § 17a-1 (12) (B) defines ‘‘ ‘[g]uardian’ ’’ in relevant part
as ‘‘a person who has a judicially created relationship between a child or
youth and such person that is intended to be permanent and self-sustaining
as evidenced by the transfer to such person of the following parental rights
with respect to the child or youth . . . the authority to make major decisions
affecting the child’s or youth’s welfare, including, but not limited to . . .
major medical, psychiatric or surgical treatment . . . .’’
3
General Statutes § 17a-93 (4) defines ‘‘ ‘[g]uardianship’ ’’ in relevant part
to mean ‘‘the obligation of care and control, the right to custody and the
duty and authority to make major decisions affecting such minor’s welfare,
including, but not limited to . . . major medical, psychiatric or surgical
treatment . . . .’’
4
General Statutes § 17a-98 provides in relevant part that the petitioner
‘‘shall exercise careful supervision of each child under [her] guardianship
or care and shall maintain such contact with the child and the child’s foster
family as is necessary to promote the child’s safety and physical, educational,
moral and emotional development . . . .’’
5
General Statutes § 46b-129 (j) (4) provides in relevant part: ‘‘The [peti-
tioner] shall be the guardian of [a] child [committed to her custody] for the
duration of the commitment . . . .’’
6
The court stated in In the Matter of McCauley: ‘‘We are faced with the
difficult issue of when a [s]tate may order medical treatment for a danger-
ously ill child over the religious objections of the parents. . . . [T]here are
three interests involved: (1) the natural rights of parents; (2) the interests
of the child; and (3) the interests of the [s]tate. . . .
‘‘Courts have recognized that the relationship between parents and their
children is constitutionally protected, and, therefore, that the private realm
of family life must be protected from unwarranted [s]tate interference. . . .
The rights to conceive and to raise one’s children are essential . . . basic
civil rights . . . . The interest of parents in their relationship with their
children has been deemed fundamental, and is constitutionally protected.
. . . Parents, however, do not have unlimited rights to make decisions for
their children. Parental rights do not clothe parents with life and death
authority over their children. . . . The [s]tate, acting as parens patriae, may
protect the well-being of children. . . .
‘‘The right to the free exercise of religion, including the interests of parents
in the religious upbringing of their children is, of course, a fundamental right
protected by the [federal] [c]onstitution. . . . However, these fundamental
principles do not warrant the view that parents have an absolute right to
refuse medical treatment for their children on religious grounds. . . .
‘‘The [s]tate’s interest in protecting the well-being of children is not nulli-
fied merely because the parent grounds his claim to control the child’s
course of conduct on religion or conscience. . . . 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
power of the parent, even when linked to a free exercise claim, may be
subject to limitation . . . if it appears that parental decisions will jeopardize
the health or safety of the child, or have a potential for significant social
burdens. . . . When a child’s life is at issue, it is not the rights of the parents
that are chiefly to be considered. The first and paramount duty is to consult
the welfare of the child.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) In the Matter of McCauley, supra, 409 Mass.
136–37.