DIANA H. v. Rubin

171 P.3d 200, 217 Ariz. 131, 517 Ariz. Adv. Rep. 16, 2007 Ariz. App. LEXIS 220
CourtCourt of Appeals of Arizona
DecidedNovember 21, 2007
Docket2 CA-SA 2007-0085
StatusPublished
Cited by16 cases

This text of 171 P.3d 200 (DIANA H. v. Rubin) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DIANA H. v. Rubin, 171 P.3d 200, 217 Ariz. 131, 517 Ariz. Adv. Rep. 16, 2007 Ariz. App. LEXIS 220 (Ark. Ct. App. 2007).

Opinions

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 At issue in this special action is whether the parent of a child who has been adjudicated dependent has the right to prohibit state-directed immunization of the child on the ground of the parent’s religious belief. Petitioner Diana H. contends the respondent judge abused his discretion in granting a motion filed by the real party in interest, the Arizona Department of Economic Security (ADES), requesting authority to consent to immunizations for Diana’s nine-month-old daughter, Cheyenne. We accept special action jurisdiction because Diana has no “equally plain, speedy, and adequate remedy by appeal,” Rule 1(a), Ariz. R.P. Spec. Actions, and because the petition raises a question of law that is “of statewide importance and of first impression,” ChartOne, Inc. v. Bernini, 207 Ariz. 162, ¶ 9, 83 P.3d 1103, 1107 (App.2004). Because we conclude the dependency adjudication did not extinguish Diana’s right to determine the religious upbringing of her child and because the state has not articulated a compelling interest in immunizing Cheyenne sufficient to override Diana’s objection to the procedure, we grant relief.

Background

¶2 Diana did not contest the determination of dependency or dispute the facts contained in an amended dependency petition filed by ADES. According to the amended petition, the Child Protective Services (CPS) division of ADES took temporary physical custody of Cheyenne on March 26, 2007, and placed her in foster care. Cheyenne’s doctor had expressed concern that the infant was “behind developmentally due to lack of proper nutrition.” The petition also alleged that Diana “appear[ed] unable to protect” Cheyenne from her father, who had been arrested for domestic violence at the family’s residence in early March 2007 and for assaulting Diana the following week. Although Diana had moved to a domestic violence shelter, she continued to deny that any episodes of domestic violence had occurred, and she was eventually asked to leave the shelter. Diana also acknowledged, but denied, reports that she abuses alcohol.

¶ 3 After CPS had taken temporary custody of Cheyenne but before the dependency adjudication, Diana had told CPS she objected on religious grounds to having Cheyenne immunized. Diana also presented ADES with a written request that Cheyenne be exempted, based on Diana’s religious beliefs, from the immunization requirements that otherwise apply to children enrolled in Arizona child-care facilities. See Ariz. Admin. Code R9-5-305(A) (child-care facility may not permit attendance of child without “written immunization record or an exemption affidavit”); see also A.R.S. § 36-883(C) (Arizona Department of Health Services (ADHS) rules regarding immunization of children cared for in a child-care facility “shall include appropriate exemptions for children whose parents object on the ground that it conflicts with the tenets and practices of a recognized church or religious denomination of which the parent or child is an adherent or member”). As a result, ADES moved the court for authority to consent to immunizations for [133]*133Cheyenne, over Diana’s objection, on the ground that they were medically necessary and in Cheyenne’s best interests.

¶ 4 On May 30, 2007, the respondent judge adjudicated Cheyenne a dependent minor; awarded legal care, custody, and control of Cheyenne to ADES; directed that she remain in her current foster placement; and affirmed reunification with Diana as the case plan goal. Based on an agreement between Diana and ADES, the judge also scheduled an evidentiary hearing on the issue of immunizations.

¶ 5 At that hearing, ADES first called Cheyenne’s CPS case manager. He testified that the child-care center Cheyenne had been attending, where her foster mother was also employed, was requiring evidence of immunization as a condition of Cheyenne’s continued attendance.1 He opined that it was in Cheyenne’s best interests to remain at that facility “[bjecause she [had] become accustomed to that day care [and] because the foster parent works there as well and has daily contact with the child.”

¶ 6 ADES then called Cheyenne’s pediatrician, Mimi Peterson, who testified the purpose of immunizing children during their first year of life is “to prevent illnesses that are threats to the health of children in that age group.” Peterson stated that immunizations are medically necessary to avoid a “significant risk to the health and sometimes the life of [a] child.” She noted that Cheyenne had not yet received any immunizations and that, ordinarily, a child of her age would have received fifteen scheduled immunizations against hepatitis B, haemophilus influenzae type b(Hib), tetanus, diphtheria, pertussis, rotavirus, polio, and pneumococcus.

¶7 When asked if any of these illnesses were potentially fatal for infants, Peterson testified that, currently, the highest risk for children in the local community is probably pertussis, commonly referred to as “whooping cough.” She reported having seen several dozen cases of pertussis in her pediatric practice the previous winter and explained that pertussis is “fairly widespread in the teenager and adult community.” As a result, an infant who has not been immunized against pertussis risks exposure to the bacteria “in the grocery store, in the mall, any place you’re likely to encounter [the] general population.” According to Peterson, while adults and teenagers face no significant health risk from the illness and may regard it as “just a prolonged cough that’s a nuisance,” the life and health of an infant who contracts pertussis are “at high risk.”

¶ 8 Addressing the risks posed by the other diseases against which infants are ordinarily immunized, Peterson stated that the second greatest risk would be from Hib, the bacterial cause of meningitis, followed by pneumococcus, rotavirus, and tetanus. Peterson testified that, during the past year, none of her patients had contracted Hib or tetanus; many had had ear infections caused by pneumococcus, but none had suffered the more serious complications that can occur; and about forty had become ill with rotavi-rus.

¶ 9 At the close of the evidence presented by ADES, Diana asked if the court intended to “inquire ... about the quality of the religious belief or [if it] accepts that the exemption is valid.” In response, ADES argued that Diana’s request for an exemption was invalid because Cheyenne was already in protective custody when Diana executed the form. After ADES conceded it did not “have any evidence suggesting that [Diana’s] reli-gio[us] belief isn’t sincere,” the court declined to hear testimony on the issue. Diana closed the evidentiary portion of the hearing with an offer of proof that, if called as a witness, an assistant to her attorney would testify that she had contacted representatives of thirty-four child-care facilities in the community and all but three had indicated they [134]*134would accept immunization exemptions for a child of Cheyenne’s age.

¶ 10 The respondent judge issued a written ruling granting the state’s motion, explaining his reasoning as follows:

The Court bases its ruling on the medical testimony of Dr. Peterson as well as the Court’s finding that the Mother’s request for exemption was invalid, having been executed after the Court had ordered that [ADES] have temporary legal custody and physical custody of the minor.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Care and Protection of Eve.
Massachusetts Supreme Judicial Court, 2025
In THE INTEREST OF C.C., Children
314 Ga. 446 (Supreme Court of Georgia, 2022)
Dcs v. Hon. stocking-tate/mark R.
Court of Appeals of Arizona, 2019
Dep't of Child Safety v. Stocking-Tate
446 P.3d 813 (Court of Appeals of Arizona, 2019)
In re Elianah T.-T.
Supreme Court of Connecticut, 2017
Arlene L. v. Dcs
Court of Appeals of Arizona, 2014
Department of Human Services v. S. M.
300 P.3d 1254 (Court of Appeals of Oregon, 2013)
Arizona Depatment of Economic Security v. Lee
264 P.3d 34 (Court of Appeals of Arizona, 2011)
ARIZONA DEPT. OF ECONOMIC SEC. v. Lee
264 P.3d 34 (Court of Appeals of Arizona, 2011)
Marco C. v. Sean C.
181 P.3d 1137 (Court of Appeals of Arizona, 2008)
Marco C. v. Sean C. & Colleen C.
Court of Appeals of Arizona, 2008
DIANA H. v. Rubin
171 P.3d 200 (Court of Appeals of Arizona, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
171 P.3d 200, 217 Ariz. 131, 517 Ariz. Adv. Rep. 16, 2007 Ariz. App. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diana-h-v-rubin-arizctapp-2007.