In re Elianah T.-T.

 IN RE ELIANAH T.-T.—CONCURRENCE
ROGERS, C. J., with whom EVELEIGH, J., joins, con-
curring. I agree and join with the majority’s holding
that General Statutes § 17a-10 (c)1 does not authorize
the Department of Children and Families (department),
to vaccinate children in the temporary custody of the
petitioner, the Commissioner of Children and Families
(commissioner), over the religious objection of the
respondent parents, Giordan T. and Nicanol T. I write
separately in order to more fully address the commis-
sioner’s claim that, as the guardian of children commit-
ted to her temporary custody pursuant to General
Statutes § 46b-129 (j) (4),2 she has all of the rights and
obligations of a guardian as set forth in General Statutes
§ 17a-1 (12),3 including the right to authorize the vacci-
nation of such children. In support of this contention,
the commissioner points out that, on August 23, 2016,
the trial court issued a form order stating that ‘‘[t]he
child or youth is committed until further order of the
court to the Commissioner of Children and Families
who shall be the guardian of the child or youth
according to the statutes in such cases.’’
The genealogy and legislative history of the relevant
statutes, however, do not support the claim that the
commissioner is the exclusive guardian of children who
are temporarily committed to her custody, with all of
the rights and obligations set forth in § 17a-1 (12). In
1971, the predecessor to § 46b-129 (j) (4) provided that
the ‘‘welfare commissioner’’ was the guardian of a child
who was committed to his custody. See General Stat-
utes (Supp. 1969) § 17-62 (d). Notwithstanding this pro-
vision and the fact that certain children were committed
to both the Welfare Commissioner and the Commis-
sioner of Children and Youth Services, at some point
in 1970 or 1971, the Attorney General wrote an opinion
indicating that the Commissioner of Children and Youth
Services could not authorize medical treatment for chil-
dren in his custody because he was only their custo-
dian.4 See Conn. Joint Standing Committee Hearings,
Corrections, Welfare and Humane Institutions, 1971
Sess., Pt. 1, p. 185–86, remarks of John Dorman, Special
Assistant to the Commissioner of Children and Youth
Services (referencing ‘‘dual commitments’’ where child
is committed to the Department of Welfare and Com-
missioner of Children and Youth Services, and noting
recent opinion of Attorney General that state cannot
authorize medical treatment for children in its custody
because it has ‘‘mere custody of the child and not guard-
ianship’’); 14 H.R. Proc., Pt. 5a, 1971 Sess., p. 2201,
remarks of Representative John F. Papandrea (‘‘[This
bill] provides that the Commissioner of Children and
Youth Services shall be empowered and authorized to
have emergency medical treatment given to any ward
placed in his custody . . . . This presently is not possi-
ble and the Attorney General last year was forced to
give a ruling indicating that the commissioner had no
power even in the face of an emergency.’’). Because
these agencies lacked authority to authorize medical
treatment for children in their custody, the legislature
enacted No. 295 of the 1971 Public Acts, enabling the
Commissioner of Children and Youth Services to autho-
rize medical treatment for children in his custody. See
General Statutes (Supp. 1971) § 17-418 (c). Notably,
however, neither the original version of § 17a-10 (c),
which referred to the Commissioner of Children and
Youth Services; see Public Acts 1971, No. 295, § 1; nor
the current version, which refers to the commissioner;
see Public Acts 1993, No. 93-91 (amending § 17a-10 [c]
to substitute ‘‘Commissioner of Children and Families’’
for ‘‘Commissioner of Children and Youth Services’’);
expressly provides that the agency to which a neglected
or abused child is committed, or the commissioner of
that agency, is the child’s guardian. Moreover, as the
majority opinion points out, the legislative history of
§ 17a-10 (c) indicates that it was intended only to grant
the Commissioner of Children and Youth Services the
authority to authorize medical treatment in emergency
situations when that commissioner could not obtain
the consent of the parents. See 14 H.R. Proc., supra, p.
2201. Accordingly, the statute cannot reasonably be
interpreted as giving the agency to which a child is
temporarily committed all of the broad rights of a guard-
ian with respect to the medical treatment of a child.5
It follows, therefore, that § 17a-1 (12), which was
enacted in 1998; see Public Acts 1998, No. 98-241; also
cannot be interpreted as giving the commissioner all
of the rights of a guardian. First, as I have just explained,
the enactment of Public Act 1971, No. 295, in 1971 was
premised on the legislature’s understanding that the
state agency having temporary custody of neglected or
abused children was not the guardian of those children
for all purposes, notwithstanding the fact that General
Statutes (Supp. 1969) § 17-62 (d) provided that the Wel-
fare Commissioner was the guardian of a child also
committed to the custody of the Commissioner of Chil-
dren and Youth Services. I am aware of no intervening
law that broadened the guardianship rights of those
commissioners. A statute, such as § 17a-1 (12), that
defines guardianship rights and obligations does not,
ipso facto, confer guardianship rights and obligations
on any particular person or entity.
Second, by its plain terms, § 17a-1 (12) applies to ‘‘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 . . . .’’
(Emphasis added.) This is not the case when the com-
missioner has only temporary custody of a child and
the parents’ rights have not yet been terminated. Third,
the legislative history of § 17a-1 (12) provides no sup-
port for the proposition that it was intended to give
the commissioner exclusive guardianship rights over
children in her temporary custody.6
Thus, the legislative genealogy and history of the
relevant statutory scheme support the conclusion that,
when the legislature enacted the predecessor to § 17a-
10 (c) in 1971 it contemplated that the Commissioner
of Children and Youth Services had, at most, a form of
joint guardianship with the parents of a child who had
been temporarily committed to him, and the rights of
the parents had not been terminated. The legislature
did not intend to confer the exclusive and unfettered
authority to authorize any and all forms of medical
treatment, provided only that such treatment was in
the child’s best interest. Moreover, the enactment of
§ 17a-1 (12) in 1998 did not expand the commissioner’s
rights as a coguardian of children in her temporary
custody. Indeed, the department’s own guidelines pro-
vide that ‘‘[t]he Area Office Social Work or Juvenile
Justice staff shall refer a case to the Medical Review
Board when . . . the treatment may be contrary to the
wishes of a parent or legal guardian . . . .’’ Department
of Children and Families, ‘‘Practice Guide: Standards
and Practice Regarding the Health Care of Children in
[the Department of Children and Families’] Care’’
(2014), p. 22. Those guidelines also provide that the
staff member who refers a case to the Medical Review
Board ‘‘shall work with the [Regional Resource Group]
Nurse or Nurse Practitioner to make personal contact
with the parents . . . and the parents’ . . . attorneys
. . . to ensure that they each understand the medical
plan, understand the risks and benefits, are in
agreement with it, and consent.’’ Id., p. 23. Thus, the
department clearly is operating under the assumption
that parents continue to have an important role in mak-
ing medical decisions for their children even when they
have temporarily lost custody of them.7 This interpreta-
tion is also consistent with the important constitutional
rights at issue, namely, the parents’ substantive due
process right to raise their children as they see fit,
including the right to control the children’s religious
upbringing. See Santosky v. Kramer, 455 U.S. 745, 753,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (‘‘The fundamen-
tal liberty interest of natural parents in the care, cus-
tody, 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 family life.’’); see also State v.
DeCiccio, 315 Conn. 79, 149, 105 A.3d 165 (2014) (‘‘[i]t
is well established that this court has a duty to construe
statutes, whenever possible, to avoid constitutional
infirmities’’ [internal quotation marks omitted]).
Accordingly, it is reasonable to conclude that § 17a-
10 (c) was intended to apply only when the commis-
sioner has a compelling reason to seek immediate medi-
cal treatment for a child in her temporary custody and
there may be insufficient time to obtain the consent of
the parents, i.e., in medical emergencies. When immedi-
ate medical treatment is not required to ensure the good
health of the child the statute does not apply, and, in
the absence of any other express statutory source to
authorize medical services or treatment for the child,
the commissioner must attempt to obtain the consent
of the parents as the child’s coguardians. If the parents
cannot be found, I would conclude that the commis-
sioner must make that representation to a court and
seek to obtain an order allowing the commissioner to
authorize medical treatment. Similarly, the commis-
sioner must obtain a court order if the parents object
to the medical treatment.8
With respect to the legal standard to be applied in
cases in which the commissioner is seeking a court
order authorizing the medical treatment of a child in
its temporary custody over the objection of the parents,
my research has revealed no Connecticut case that
address this issue, or the issue of when a court may
order medical treatment for a child in the parents’ cus-
tody over the objection of the parents. In the Matter
of McCauley, 409 Mass. 134, 136–37, 139, 565 N.E.2d 411
(1991), the Supreme Judicial Court of Massachusetts
addressed the latter question and concluded that the
rights of parents to make decisions for their children,
the child’s interest in continuing good health and the
state’s parens patriae interest must be balanced.9 I
believe that this is an appropriate standard, and I would
apply it even when the parents have lost temporary
custody of their children to the commissioner.
With respect to the narrow question of whether the
commissioner may authorize the vaccination of a child
in her temporary custody over the religious objection
of the child’s parents, the Connecticut legislature has
already concluded 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.10 In my view, the courts are bound by this
policy determination. Accordingly, I would conclude in
the present case that the commissioner had no authority
either under § 17a-10 (c) or as the coguardian of the
children in her temporary custody to authorize their
vaccination over the parents’ religious objection.
1
General Statutes § 17a-10 (c) provides: ‘‘When deemed in the best inter-
ests of a child in the custody of the [Commissioner of Children and Families],
the commissioner, the commissioner’s designee, a superintendent or assis-
tant 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 commis-
sioner 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 § 46b-129 (j) (4) provides in relevant part: ‘‘The commis-
sioner shall be the guardian of [a] child [committed to the custody of the
commissioner] for the duration of the commitment . . . .’’
3
General Statutes § 17a-1 (12) (B) defines ‘‘ ‘guardian’ ’’ 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 . . . .’’
The commissioner contends that, because she is the guardian of children
in her temporary custody, she has the authority under General Statutes § 10-
204a (a) to determine whether to invoke the exemption to the immunization
requirement when immunization would be contrary to the religious beliefs
of such children. See General Statutes § 10-204a (a) (3) (exempting from
immunization requirement ‘‘[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
the appropriate provisions of this section’’). If § 17a-1 (12) confers this
authority, however, it necessarily confers the authority to make all decisions
concerning the welfare of such children, including the authority to authorize
vaccinations in the first instance. Thus, the commissioner effectively con-
tends that the authority conferred on it by § 17a-10 (c) is superfluous to its
authority as the guardian of children in its temporary custody.
4
This opinion is not available in the Connecticut State Library. Accord-
ingly, it is unclear to which state entity—the Welfare Commissioner or the
Department of Children and Youth Services—the opinion was directed. As
I discuss later in this concurring opinion, however, the legislature responded
to the Attorney General’s opinion by authorizing the Commissioner of Chil-
dren and Youth Services to authorize medical services for children in his
custody. Accordingly, it is reasonable to conclude that the opinion was
directed at that commissioner.
5
Although General Statutes (Supp. 1969) § 17-62 (d) provided that the
Welfare Commissioner was the guardian of children committed to his cus-
tody, and No. 295 of the 1971 Public Acts was directed at the Commissioner
of Children and Youth Services, it is clear that the Welfare Commissioner
did not have all of the rights and obligations of a guardian. If he had, then
he could simply have authorized the Commissioner of Children and Youth
Services to provide medical treatment to children in his temporary custody.
6
Section 17a-1 (12) was enacted in response to Congress’ enactment of
the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115
(1997) (ASFA). See Conn. Joint Standing Committee Hearings, Judiciary, Pt.
7, 1998 Sess., p. 2175, written testimony of Kristine D. Ragaglia, Commis-
sioner of the Department of Children and Families (explaining that § 17a-1
[12] was intended to address AFSA requirement that states define guardian).
Section 101 (b) of the AFSA, codified at 42 U.S.C. § 675 (7) (2012), defines
‘‘legal guardianship’’ as ‘‘a judicially created relationship between child and
caretaker which is intended to be permanent and self-sustaining as evidenced
by the transfer to the caretaker of the following parental rights with respect
to the child: protection, education, care and control of the person, custody
of the person, and decisionmaking.’’ (Internal quotation marks omitted.)
Title 42 of the United States Code, § 675 (2), provides: ‘‘The term ‘parents’
means biological or adoptive parents or legal guardians, as determined by
applicable State law.’’ (Emphasis added.) When the ASFA was enacted in
1997, however, Connecticut’s laws governing commitment of a child and
termination of parental rights did not define ‘‘legal guardian.’’ Accordingly,
to address this gap, the legislature enacted § 17a-1 (12), apparently taking
the language ‘‘permanent and self-sustaining as evidenced by the transfer
. . . of the following parental rights’’ from the federal statute, and the
enumerated rights and obligations from General Statutes § 45a-604 (5); see
Public Acts 1973, No. 156; that defines ‘‘guardianship’’ for probate purposes.
The legislative history of No. 98-241 of the 1998 Public Acts, which, in
addition to enacting § 17a-1 (12), made numerous changes to the statutes
governing commitment to the commissioner and termination of parental
rights, indicates that the general purpose of the legislation was to shorten
the period in which children committed to the commissioner are in limbo.
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1998 Sess., p.
1856, remarks of Attorney General Richard Blumenthal (‘‘this bill essentially
aims to move [decisions regarding the disposition of abused and neglected
children] more quickly . . . [and] [t]he thrust of this measure is to provide
for adoptive homes as soon as possible so that they can be secure, permanent
[and] stable, where reunification is not a realistic hope’’). I see no evidence
that the purpose of § 17a-1 (12) was to make the commissioner the exclusive
guardian of children in her temporary custody.
7
I emphasize that my sole focus in this concurring opinion is on the right
of the commissioner to make medical decisions for children in her temporary
custody when the rights of the parents have not been terminated. I express
no opinion on the rights or obligations of the commissioner to care for
children in her temporary custody in other contexts.
8
Of course, as a matter of common sense, the commissioner may also
authorize medical treatment for children in her temporary custody with
respect to the minor scrapes and bruises that are an everyday occurrence
during childhood without obtaining the consent of the parents or a court
order. I need not, however, determine the outer limits of that authority here.
9
The court stated in McCauley: ‘‘We are faced with the difficult issue of
when a [s]tate may order medical treatment for a dangerously 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] Constitution. . . . 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 added; internal quota-
tion marks omitted.) In the Matter of McCauley, supra, 409 Mass. 136–37;
see also Diana H. v. Rubin, 217 Ariz. 131, 136, 171 P.3d 200 (App. 2007)
(under federal constitutional 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 medical 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 administration of mental
health medicine it cannot lawfully be prescribed unless court determines
‘‘whether the proposed treatment by medication is narrowly tailored to give
substantive effect to the [child] patient’s liberty interest’’); 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 cus-
tody over objection of parents pursuant to statute allowing parents to opt
out based on religious objections [internal quotation marks omitted]), appeal
denied, 500 Mich. 860, 884 N.W.2d 580 (2016).
10
See footnote 3 of this concurring opinion for the relevant text of
§ 10-204a.