Department of Human Services v. S. M.

300 P.3d 1254, 256 Or. App. 15, 2013 WL 1335659, 2013 Ore. App. LEXIS 394
CourtCourt of Appeals of Oregon
DecidedApril 3, 2013
DocketJ110590; Petition Number 100311MCG1; A151376; J110591; Petition Number 100311MCG2; A151377; J110592; Petition Number 100311MCG3; A151378; J110593; Petition Number 100311MCG4; A151379; J110594; Petition Number 100311MCG5; A151380; J110595; Petition Number 100311MCG6; A151381; J110596; Petition Number 100311MCG7; A151386; J110597; Petition Number 100311MCG8; A151388
StatusPublished
Cited by4 cases

This text of 300 P.3d 1254 (Department of Human Services v. S. M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Human Services v. S. M., 300 P.3d 1254, 256 Or. App. 15, 2013 WL 1335659, 2013 Ore. App. LEXIS 394 (Or. Ct. App. 2013).

Opinion

ARMSTRONG, P. J.

In this dependency case, the juvenile court asserted jurisdiction over parents’ eight children based on the court’s determination that the children’s conditions and circumstances endangered their welfare. ORS 419B.100(l)(c). At a subsequent review hearing, the Department of Human Services (DHS) asked the juvenile court to order the immunization of the children over mother’s and father’s religious objections to the children’s immunization. The court granted DHS’s request and issued a review judgment for each child that provided that the children “may be immunized over the parents’ objection based on medical advice.” Mother and father appeal those judgments. We affirm.

In late January 2012, in response to a petition filed by DHS, mother and father admitted various allegations regarding the conditions and circumstances of their children, who were between one and eight years of age. The juvenile court entered a jurisdictional and dispositional judgment under ORS 419B.100(l)(c) for each child, finding that the conditions and circumstances of the children endangered their welfare.1 With those judgments, the juvenile court declared the children wards of the court, ORS 419B.328; placed the children in the legal custody of DHS, ORS 419B.337; and named DHS the children’s guardian, ORS 419B.370(1). DHS eventually placed the children in the physical custody of relatives of the children.

At a review hearing in early April 2012, DHS, with the support of an attorney for the children, asked the court to order the children to be immunized. Through counsel, both mother and father raised religious objections to the proposed immunizations. Nevertheless, the court granted DHS’s request, acknowledging the parents’ objections but [20]*20concluding that, because parents no longer had custody of the children, the decision ultimately rested with the state:

“I am going to order immunizations for the children. I understand that this is not something the parents want[] and that the parents have made this choice for their children in the past, but the children are in the care and custody of the [s]tate at this point, and so I’m making the decision on behalf of the children.”

(Emphasis added.) Then, following mother’s more detailed explanation of her objection, the court reaffirmed its conclusion:

“[T]he difficulty the Court has is that you’ve exercised th[e] discretion [to withhold immunizations] in the past appropriately as a parent. You’ve made those decisions and you’ve made them knowingly. You’ve done your research and I appreciate that, but I also know that now the children are in the custody of the [s]tate ***.
"*****
“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.”

(Emphasis added.)

Following the review hearing, the juvenile court entered a review judgment for each child, providing that “[t]he child may be immunized over the parents’ objection based on medical advice.” Mother filed a motion to stay the immunization provision of the judgments pending appeal, which father joined. In early May 2012, the juvenile court granted a stay, and mother and father each timely appealed the court’s review judgments, assigning error solely to the court’s immunization order.2

[21]*21Parents make two arguments on appeal.3 First, they challenge DHS’s and the court’s statutory authority to order immunization of their children, arguing that, notwithstanding DHS’s custody and guardianship, they retain the right under Oregon statutes to decide whether to immunize their children.4 Second, relying on our decision in State ex rel Juv. Dept. v. Smith, 205 Or App 152, 133 P3d 924 (2006), they assert that, before DHS may immunize a child over a parent’s objection, it must show that the parent is unfit to make immunization decisions on behalf of the child and that immunization is necessary for the child’s short-term health and safety; parents contend that DHS made neither showing. We reject both of parents’ arguments and affirm.

We begin with parents’ statutory argument, which is best addressed by reviewing the provisions of the juvenile code that relate to the juvenile court’s authority to direct the medical treatment of children over whom it has jurisdiction in a dependency proceeding — that is, the court’s wards. ORS 419B.328(1). ORS chapter 419B provides for three roles in which nonparents make health-care decisions for a ward during a dependency proceeding: that of the ward’s legal custodian, ORS 419B.373; that of the ward’s guardian, ORS 419B.376; and that of the juvenile court, ORS 419B.352. We address those roles in turn.

First, once it has asserted jurisdiction, the juvenile court may determine the appropriate legal custodian of a ward. ORS 419B.331; ORS 419B.337. In doing so, the court may determine that the ward remain in the custody of the ward’s parents, subject to protective supervision, ORS 419B.331; that the ward be placed in the custody of another individual or institution, id.; or that the ward be placed in the custody of DHS, ORS 419B.337. The legal custodian of a ward, in turn, is responsible for the physical custody of the ward and must provide the ward with necessaries, [22]*22care, education, and discipline. ORS 419B.373(1) - (3). At the same time, the legal custodian has the authority to approve “ordinary medical, dental, psychiatric, psychological, hygienic or other remedial care and treatment for the ward, and, in an emergency where the ward’s safety appears urgently to require it, to authorize surgery or other extraordinary care.” ORS 419B.373(4).

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Related

Dept. of Human Services v. T. M. G.
475 P.3d 936 (Court of Appeals of Oregon, 2020)
Department of Human Services v. S. M.
323 P.3d 947 (Oregon Supreme Court, 2014)
In re the Marriage of Epler
309 P.3d 1133 (Court of Appeals of Oregon, 2013)
Department of Human Services v. D. W. C.
308 P.3d 316 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
300 P.3d 1254, 256 Or. App. 15, 2013 WL 1335659, 2013 Ore. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-human-services-v-s-m-orctapp-2013.