In re E.E.B.

NOT DESIGNATED FOR PUBLICATION
No. 124,937
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of E.E.B.,
A Minor Child, By and Through Her Next Friend,
A.B.,
Appellant,
v.
E.K.,
Appellee.
MEMORANDUM OPINION
Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed November 23, 2022.
Affirmed.
Todd A. Luckman, of Stumbo Hanson, L.L.P., of Topeka, for appellant.
Roger L. Unruh, of McKone & Unruh, Chartered, of Junction City, for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: In a paternity action brought by A.B., as the mother of E.E.B., a girl
born in early 2016, the Riley County District Court found E.K. to be the child's father and
entered a support order and a parenting plan that remain in place. A.B. and E.K.'s
handling of their parental rights and obligations apparently has been marked by recurrent
friction. At the center of this litigation, E.K. wanted E.E.B. vaccinated against COVID-19
in late 2021; A.B. did not. Called upon to settle the conflict, the district court relied on a
dispute resolution mechanism the parents had previously accepted requiring them to
resolve any disagreements over vaccinations, including for COVID-19, by deferring to
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the recommendation of the child's regular pediatrician. The district court ordered E.E.B.
be vaccinated, consistent with the parents' accepted process and the physician's
recommendation. A.B. now challenges the ruling as a violation of her rights protected in
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The argument rests on a constitutional overreach and, therefore, fails. We affirm the
district court's order.
The district court stayed its order if A.B. timely appealed. She has, so we presume
E.E.B. has not been vaccinated in conformity with the stay. Having affirmed the district
court, we dissolve the stay. See Yeasin v. University of Kansas, 51 Kan. App. 2d 939,
955, 360 P.3d 423 (2015) (appellate court affirms district court's substantive ruling and
dissolves district court's stay). The dissolution will be effective upon the conclusion of
the appellate process, assuming our decision is not otherwise altered during the remainder
of that process. See Supreme Court Rule 8.03(k)(1) (2022 Kan. S. Ct. R. at 61) (until
mandate issues, Court of Appeals opinion may be cited as merely persuasive authority).
FACTUAL AND PROCEDURAL BACKGROUND
The district court found E.K. to be E.E.B.'s father in April 2017 and entered
related support and parenting orders. Under Supreme Court Rule 909 (2022 Kan. S. Ct.
R. at 628), the district court appointed a lawyer from Lawrence as a parenting coordinator
in June 2021 to assist A.B. and E.K. in meeting their duties outlined in the parenting plan
for E.E.B. In the appointment order, the district court determined a parenting coordinator
to be appropriate, at least in part, because A.B. and E.K. "are consistently in conflict"
over "issues related" to E.E.B., mirroring grounds in Rule 909. The order provided that
written recommendations of the parenting coordinator would become binding and, thus,
effectively directives of the district court unless either parent filed an objection within 14
days of the recommendation. The order identified the "health care management" of
E.E.B. as one of the areas within the parenting coordinator's purview.
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On December 13, 2021, the parenting coordinator made written recommendations
on a variety of matters, including vaccinations for E.E.B. That particular recommendation
states:
"Neither parent will vaccinate the child without an agreement of the other parent
or a Court order. For all vaccinations, including COVID-19, the parties should follow the
recommendations of the existing primary care provider. If the parties disagree about what
the primary care provider says, they should ask for that in writing and provide it to Parent
Coordinator. Neither should get the children vaccinated without notification to the other
with sufficient time to allow the other to seek Court intervention." (Emphasis added.)
The parenting coordinator emailed the recommendations to the lawyers for A.B. and E.K.
that day and filed them with the district court the next day. Neither A.B. nor E.K.
objected to the recommendation on vaccinations.
Two weeks after receiving the parenting coordinator's recommendations, E.K.
filed a motion to have E.E.B. vaccinated against COVID-19, citing the position of the
child's pediatrician favoring vaccination. On January 5, A.B. filed a response to the
motion relying on Brandeis brief material on the potential side effects of COVID-19
vaccinations and the comparatively low incidence of serious illness among young
children from COVID-19. See Black's Law Dictionary 232 (11th ed. 2019) (defining
"Brandeis brief" as one "that makes use of social and economic studies"). A.B. did not
dispute that E.E.B.'s pediatrician recommended the child be vaccinated; nor did she offer
expert opinion from another medical doctor opposing vaccination. Essentially, A.B.
provided her own risk-benefit assessment of vaccinating E.E.B. that differed from the
pediatrician's.
On January 7, the district court held a brief hearing during which the lawyers
made arguments supplementing their written submissions. Neither A.B. nor E.K. asked to
submit additional evidence. The district court issued a short order three days later
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granting E.K.'s motion for vaccination and staying the ruling if there were a timely
appeal. The district court relied on the dispute resolution process the parenting
coordinator crafted addressing vaccinations and the recommendation from E.E.B.'s
pediatrician that the child be vaccinated against COVID-19. A.B. has duly appealed.
LEGAL ANALYSIS
On appeal, A.B. contends the district court violated her constitutionally protected
due process rights. The argument seems to encompass both procedural and substantive
due process protections without clearly delineating between them. We consider both. And
as we have already stated, A.B. can point to no constitutional deprivation.
In general terms, substantive due process protects a limited number of
fundamental rights not expressly enumerated in the United States Constitution because
they are essential components of an ordered, civilized society and have been recognized
as such in our national history and tradition. Washington v. Glucksberg, 521 U.S. 702,
720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997); Palko v. Connecticut, 302 U.S. 319,
325, 58 S. Ct. 149, 82 L. Ed. 288 (1937); Taylor v. Kansas Dept. of Health &
Environment, 49 Kan. App. 2d 233, 244, 305 P.3d 729 (2013). As A.B. points out,
parents have a substantive due process right to raise and educate their children.
Washington, 521 U.S. at 720; Santosky v. Kramer, 455 U.S. 745, 753, 759-60, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982). As with other enumerated and unenumerated
constitutional rights, the freedom to raise one's child is not absolute and may be subject to
appropriate governmental limitations. See Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct.
2493, 61 L. Ed. 2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct.
438, 88 L. Ed. 645 (1944); PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1197-98 (10th
Cir. 2010). The government retains a parens patriae interest in the welfare of children
within its borders and may otherwise act for the public good in ways that curtail or
override some parenting decisions. Santosky, 455 U.S. at 766; Prince, 321 U.S. at 166-
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67. Those governmental intrusions include requiring potentially lifesaving medical
treatment of a particular child and compulsory vaccination laws fostering the public
health and welfare systemically. See Jacobson v. Massachusetts, 197 U.S. 11, 30, 39, 25
S. Ct. 358, 49 L. Ed. 643 (1905) (upholding constitutionality of mandatory vaccination
statute including children unless certified to be medically unfit by licensed physician);
Goe v. Zucker, 43 F.4th 11, 31-32 (2d Cir. 2022) (holding state statute and related
regulations requiring certain vaccinations for child to attend public school and affording
only narrow medical exemption "do not implicate a fundamental right"); PJ ex rel.
Jensen, 603 F.3d at 1197-98 (permitting medical treatment of seriously ill child over
parents' objection). In limited circumstances, the government may terminate the parent-
child relationship to protect a child from continuing physical or emotional abuse or other
exceptionally deleterious conditions. See K.S.A. 38-2269; Santosky, 455 U.S. at 747-48.
In making her argument to us, A.B. fails to acknowledge the jurisprudential
nuance attached to the substantive due process right to parent one's child and, instead,
presents the right as if it were virtually impregnable. And, in turn, she submits the district
court's order deferring to the dispute resolution mechanism for E.E.B's vaccinations
violates that right. The argument fails on several fronts.
First, of course, the right is not absolute. Second, statutes or other governmental
directives requiring the vaccination of children in various circumstances do not violate
the parents' substantive due process right. That authority supports the result here, at least
by analogy. But the gulf between the district court's order and the vaccination of E.E.B. is
even wider, accentuating the lack of any substantive due process violation. The outcome
here was not the product of a governmental directive independently mandating that
E.E.B. be vaccinated—state action that would intrude upon the parents' due process right,
although not necessarily in a prohibited way. Rather, the district court simply used the
reasonable method A.B. and E.K. had already accepted for themselves to resolve any
disputes they might have about vaccinating E.E.B.
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As such, the district court's order was qualitatively (and constitutionally) different
from a direct government mandate to vaccinate a child. By deploying an existing dispute
resolution mechanism the parents adopted, the district court neither intruded on nor
impermissibly compromised their constitutional rights. A.B.'s claim to the contrary is
mistaken. She and E.K. effectively accepted a vehicle to resolve disputes over
vaccinating E.E.B. that ceded those decisions to the child's pediatrician. Even assuming
the arrangement may have diminished their substantive due process rights in some way,
A.B. and E.K. were free to make that choice. See State v. James, 309 Kan. 1280, Syl. ¶ 5,
443 P.3d 1063 (2019) (recognizing criminal defendants may waive their constitutional
right); Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 30, 542 P.2d 339(1975) (recognizing party to civil dispute may waive constitutional due process rights).
To reiterate a key constitutional point: No government agency or actor required
E.E.B. to be vaccinated against COVID-19 in the first instance. So, had A.B. and E.K.
agreed to have E.E.B. vaccinated, that's what would have happened without any judicial
involvement. Likewise, had they agreed E.E.B. should not be vaccinated, she would not
have been—again, without any judicial involvement. But they couldn't agree, so E.K.
brought the disagreement to the district court for resolution based on the court's
continuing authority under the parenting plan entered in this paternity action. In turn, the
district court resolved the matter by applying the reasonable dispute resolution device
A.B. and E.K. had previously accepted.[*]
[*] Government action may violate substantive due process protections if it is
wholly arbitrary in the sense of furthering no demonstrable policy objective while
inflicting a deprivation of property or liberty or if it is so egregious as to shock the
conscience by transgressing recognized limitations on brutal or indecent conduct. See
Rosales-Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897, 1906, 201 L. Ed. 2d 376(2018); County of Sacramento v. Lewis, 523 U.S. 833, 845-47, 118 S. Ct. 1708, 140 L.
Ed. 2d 1043 (1998); Taylor, 49 Kan. App. 2d at 244. A.B. has not fashioned this sort of
substantive due process argument. We go down that path only far enough to say the
record would appear to lend no support to such a constitutional claim.
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And that flows into A.B.'s procedural due process arguments. First, A.B. contends
she was denied sufficient procedural due process in the adoption of the dispute resolution
mechanism deferring to the pediatrician's recommendation. Second, A.B. says the district
court should have held a hearing addressing the competing medical considerations
bearing on vaccinating E.E.B. against COVID-19. The two points overlap to some extent.
Neither has merit.
Procedural due process requires that a person have an opportunity to be heard in a
meaningful way and at a meaningful time to avert governmental action that would
wrongfully compromise a legally recognized property right or liberty interest. See
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ("The
fundamental requirement of due process is the opportunity to be heard 'at a meaningful
time and in a meaningful manner.'"); Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (The Due Process Clause "at a
minimum" requires that "deprivation of life, liberty, or property by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature of the case.");
Taylor, 49 Kan. App. 2d 233, Syl. ¶ 4. Procedural due process is an especially elastic
concept in that the protections required vary depending upon the importance of the
specific property right or liberty interest at stake. State v. Gonzalez, 57 Kan. App. 2d 618,
Syl. ¶ 2, 457 P.3d 938 (2019).
Here, A.B. had the opportunity to object to any written recommendation from the
parenting coordinator, thereby triggering the district court's review of the particular
recommendation. Absent an objection, the recommendation would go into effect as if it
were an order of the district court. That process was clearly stated and, thus, applied to
the recommendation on vaccinations. So, A.B. had to take an affirmative step, i.e., object,
to get a hearing on the recommendation. Nonetheless, the procedure gave her a
reasonable way to challenge whatever the parenting coordinator proposed. We see no
constitutional due process violation with respect to the proposal for resolving disputes
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over vaccinations. A.B. does not claim she failed to receive notice of the
recommendation, and she plainly did not object to the dispute resolution method outlined
in the recommendation. A.B. cannot now legitimately claim she lacked a meaningful
opportunity to challenge the recommendation. She simply did not avail herself of the
opportunity she had.
The district court, then, appropriately deployed the parenting coordinator's
recommendation in the absence of any objection to the mechanism it outlined for
resolving parental disagreements over vaccinating E.E.B. First, of course, A.B. and E.F.
had accepted the recommendation. Second, the dispute resolution mechanism—deferring
to E.E.B.'s pediatrician—was objectively reasonable under the circumstances. The
pediatrician is a physician licensed to practice in Kansas and, thus, presumptively
competent. Nobody has suggested otherwise. Moreover, A.B. and E.F. had been
agreeable to him caring for E.E.B. to that point, thereby demonstrating some measure of
confidence in his professional judgment overall. This is not a situation in which a
physician unknown to the parents had been foisted on them to make a binding medical
judgment about the treatment of their child.
Accordingly, based on the undisputed facts, we see no procedural due process
violation in the district court relying on the dispute resolution mechanism the parties had
accepted before their specific disagreement over the COVID-19 vaccination arose.
Deferring to the pediatrician did not deprive A.B. of a liberty interest requiring additional
procedural due process protections. The district court, therefore, had no constitutional
obligation to entertain additional argument or evidence about the general risks or efficacy
of the COVID-19 vaccine in addressing E.K.'s motion.
We affirm the district court's ruling that E.E.B. be vaccinated against COVID-19
consistent with her pediatrician's recommendation and find no constitutional error in the
district court's reliance on the dispute resolution mechanism the parents had already
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accepted deferring to those recommendations on vaccinations. The district court's stay is
dissolved without further order upon the conclusion of this appeal.
Affirmed.
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