Source: Anna Staver, Statesman Journal

Oregon’s Supreme Court will decide whether the state has the right to immunize children despite a parent’s objection when the children are taken from the home because of parental neglect or abuse.

The case is called Department of Human Services vs. S.M. and R.M. It started in January 2012 when DHS case workers removed a couple’s eight children from their home in Marion County. The parents admitted to “various allegations regarding the conditions and circumstances of their children, who were between 1 and 8 years of age,” according to court documents.

DHS asked a juvenile court judge for permission to immunize the children at a review hearing in April 2012. The parents objected on religious grounds.

“You’ve done your research and I appreciate that, but I also know that now the children are in the custody of the state,” Judge Rex Armstrong told the parents. “I know that you’re not in favor of this, but I am going to go ahead and order that all the children be immunized as per the decision of the medical provider when the foster parents take them in for evaluation and immunization (and) that they be allowed to immunize the little children as well.”

The parents appealed the decision in May 2012, arguing that DHS failed to show they were “unfit to make immunization decisions on behalf of the child and that immunization (was) necessary for the child’s short-term health and safety,” according to court documents.

They also argued that the juvenile court was wrong to give DHS authority to immunize their children because they retain the right to make that decision under Oregon law.

State laws gives parents permission to refuse to immunize their children before they attend public schools. DHS and the appellate court’s position was the statute doesn’t create a “stand-alone statutory right of parents to exempt their children from immunization.” The appellate court also decided that nothing in Oregon’s juvenile code restricts a child’s legal custodian or guardian from making health care decisions.

The parents, who are represented by attorney Sarah Peterson, appealed to Oregon’s Supreme Court with the argument that the word “ordinary” in the statute governing how DHS can care for children who become wards of the state means ordinary care for the child and not ordinary care for the general population. They contend that because the childrens’ ordinary care wouldn’t have included immunizations, the state shouldn’t be allowed to give their kids shots unless it’s a medical emergency.

The parents also argued their constitutional rights to direct the upbringing of their children were violated. The appellate court disagreed, although it did “acknowledge the possibility that, in rare circumstances, a state decision on the care of a child might run afoul of a parent’s or a child’s state or federal constitutional rights.”

The court is scheduled to hear oral arguments on the case 9 a.m. Tuesday.

astaver@StatesmanJournal .com, (503) 399-6610 or on Twitter @AnnaStaver

Similar cases in other states

Arizona (Diana H. v. Rubin, 2007): The Arizona Court of Appeals decided in favor of the child’s parents, stating that the legal custodian lacked the authority to immunize the child over the mother’s religious objection. The court ruled that “the responsibility to provide the child with medical care (is) subject to the residual parental rights and responsibilities if they have not been terminated by judicial decree.”

The court further stated in its opinion that a “dependency determination does not extinguish a parent’s right to control the religious upbringing of his or her child because, by the terms of the statute defining ‘legal custody’ the right never passes to the state.”

Georgia (2002): A Georgia court decided that a mother forfeited her right to control her child’s medical care when she neglected his welfare — even if the loss was temporary. In its opinion, the court stated that because case workers found “(her child) to be a deprived child, she is bound by that determination.”

North Carolina (2002): A North Carolina court also held that its Department of Social Services was the only party authorized to make welfare decisions for children who were in the custody of the state. In its opinion, the court ruled that the parents surrendered those rights by neglecting their childrens’ welfare.

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