-: SJC13672 in the matter of an impounded case.
(paper rustling)
-: Hi. Okay, attorney Clay, whenever you're ready.
-: Thank you, good afternoon, your Honor,
if it may it please the court, attorney Kyla Clay,
on behalf of the mother.
We're here today because there's a gap
in the law concerning the appropriate standard of review
that juvenile courts should apply
when a parent objects on sincere religious grounds
to routine non-urgent medical care
of their child in temporary state custody.
Under the First Amendment,
parents have a constitutional right to determine
and direct their child's religious upbringing.
Under Santosky versus Kramer,
this constitutional right is not taken away
when the state obtains temporary custody of their child.
When DCF obtains temporary custody of a child,
it has the statutory authority under chapter 119,
section 21 to make decisions about the child's housing,
education and medical care.
This includes decisions on vaccination.
Ordinarily, if a parent disagrees with DCFS decisions
for any reason, the trial court reviews the decision
for an abuse of discretion.
But because a parent's constitutional right
to make religious decisions is not revoked
or passed to the state,
an objection based on a sincere religious belief
cannot be subjected to the same standard
as any other objection
to DCF's custodial authority.
And that is the gap that we are here to address today
During this period of limbo, when DCF has temporary custody
of the child,
under a mere preponderance of the evidence standard,
how should courts assess
a parent's sincere religious objection
to DCF's decisions of ordinary medical care?
Right now, we don't have guidance on this issue.
So we are asking that this court hold
that a parent's religious objection to DCF's decisions
of ordinary medical care must be subjected
to a balancing test considering the interest of the parents,
the child, and the state.
-: Yeah, it, go further.
So what is it strict scrutiny in a conventional sense,
including a least restrictive alternative analysis?
What is it, because I get it that we're in a gap,
but you know, the US Supreme Court's very, very protective
of these rights and, and I'm not sure
they're sort of an open-ended balancing test
is gonna make them happy, right?
-: Right, so as discussed in the amicus brief,
the strict scrutiny standard would essentially require
that the government have a compelling interest
and that it's narrowly tailored to meet that interest.
-: [Justice Wendlandt] Why are you not arguing that?
Is that you're not arguing the strict scrutiny standard?
-: So I believe that the strict scrutiny standard
in a lot of ways is a balancing test.
And in cases of extraordinary medical care,
the Supreme Court has held,
or the Supreme Judicial Court has held that,
that in Ray McCauley we can apply a balancing test,
which includes a consideration of the parents' interests
as well as the state and the child.
So I think ultimately this court could go either way.
It could adopt the strict scrutiny standard
or it could instead adopt the balancing tests
set forth in-
-: And your position is regardless of the balancing
or strict scrutiny, the outcome is the same?
-: Yes, that ultimately the parent's religious objections
need to be granted greater deference
than the any other objection to DCF's custodial authority.
-: Assume it was a balancing test,
what would our standard of review be for the judges,
'cause it looked to me like the judge did a balancing.
So what would our standard of review be
for the outcome for the decision of a judge
who applies a balancing test?
-: I believe the standard of review would be
an abuse of discretion standard,
but to your other point about
the trial court conducting a balancing test,
I would respectfully disagree.
Instead, I think the court essentially decided
that DCF can move forward
because vaccines are generally good
and universally recommended for all children.
-: Right and we balance that against the interest
of the parents in a sincerely held religious belief?
-: Well, the court failed to make a,
failed to consider the child's specific interests
as well as the state's interests.
And that was the ultimate failure in that level.
Specifically the court failed to conduct
an inquiry into the child's specific circumstances
as to why this child needs to be vaccinated.
Instead, it relied on affidavits
that all children in general need to be vaccinated.
And then the court failed
to address the state's interest here,
which is significantly diminished
because of the fact that the legislature permits parents
to make religious objections
to their child's mandatory vaccination.
-: Can I understand, I'd like to understand
what the state from this record,
the exemptions that are allowed.
So if this were not a child in temporary custody,
state law would allow the parent
exceptions from the vaccinations, is that right?
-: Yes. State law provides all parents.
It doesn't distinguish what type of parent.
-: So just again,
so if this not a child in temporary custody,
exemptions are allowed for these kids, right?
-: Yes. -: And I don't, the brother,
the three other children of this family
were given exemptions under what statutory authority,
'cause they were also in temporary custody, right?
-: Correct. They were in temporary custody when DCF chose.
-: So how did they get their exemptions?
-: So, so essentially the exemptions will kick into place
when a child is being enrolled in daycare
or primary school.
So the exemption would be simply telling the school
or filling out a form
that they would have a religious exemption.
-: I'm trying to understand
'cause the, again, back to the US Supreme Court,
'cause they're ultimately gonna evaluate
fair free exercise clause.
The Supreme Court doesn't like sort of haphazard exemptions
in religious areas.
So I'm trying to understand what the exemptions are here.
Why were those three children,
the other children not vaccinated?
What was the legal justification for not vaccinating them
according to our record?
-: There is no reason provided.
The record does show that DCF told those three boys' doctors
that they would not have the children be vaccinated
because of the parents' sincere religious beliefs
against vaccination.
And yet for some reason they've decided
to vaccinate this child,
and the subject child, they don't describe why exactly
they permitted those three boys to be unvaccinated,
but that was the decision that DCF ultimately made.
-: So are you arguing that this is a Fulton type of case?
The amicus argues it's a Fulton type of case.
Are you arguing it's a Fulton case or are you,
'cause that's a different standard than
the balancing test that you talked about earlier?
-: Right, so the Fulton case talks about how
the government can't have these individual decision,
discretionary authority to grant
or not grant religious exemptions.
And I think that if there was a balancing test
that would essentially put that decision up to the judge
as opposed to the department.
However, a strict scrutiny standard would also
be appropriate here.
I think it's up to this court to decide
whether a balancing test-
-: But again, back to justice Wendlandt's question,
you don't, like, you're not saying you,
you're not saying we should either do Fulton
or strict scrutiny.
You're talking about this more open-ended balancing test?
-: Right and I derived this balancing test
from In re McCauley,
which was a, a case held by this court where-
-: McCauley is a case involving the death,
a potential death of a child from leukemia, right?
-: Right and the parents objected on religious grounds.
-: And they weren't in temporary custody.
-: In that situation the department did,
I believe have legal temporary custody of the child,
not physical, legal custody, not physical.
-: Custody because of the medical issue, right?
-: Yes, correct.
-: And and ultimately I think that the,
this balancing test would be appropriate
because the juvenile courts are well equipped to employ it.
They are familiar with it because of In re McCauley.
I do think a strict scrutiny approach would also
be appropriate though.
But ultimately what matters is
that the parents' religious objections have
to be granted a greater degree of due process
than what the department is advocating for,
which is a mere abuse of discretion standard.
This, the right to make religious decisions
on behalf of one's child,
this is a right that is deeply respected
by the United States Con Constitution and by our courts.
And this balancing test that we propose would allow-
-: Seems Supreme Court directly addressed
this temporary custody religion issue.
They haven't weighed in exactly on this, have they?
-: No, they have not.
And in fact, this is an issue
that hasn't really been addressed
by many courts in general.
There are about three cases
that have addressed it in out three out of state cases.
One of them is an Arizona Court of Appeals case,
which held in our favor
and did believe that a balancing test would be appropriate.
And the other was, was a case in Arkansas Supreme Court case
where they also held in the parent's favor,
primarily because of the religious exemption
granted by the statute,
and the fact that that statute doesn't distinguish
between a parent who has full legal custody
or temporary custody revoked.
-: Is is the, I am gonna mispronounce this,
Desilets or what the,
the Mass case that says
we provide a higher standard of protection
requiring a concrete and specific analysis
is can we decide in your favor
on sort of very narrow grounds
that when the DCF is saying three other kids
in the same family
who are in a foster family foster care,
don't need to be vaccinated and this kid does,
that's a problem for them.
And we don't have to resolve all of these major issues.
I'm just, I don't know what the standard is
and I'm not sure we do,
but it looks odd
that we've got three kids in the same family
in the same situation, not vaccinated,
and then a kid who is vaccinated.
-: Right and I think that
this court could certainly resolve it on the fact
that decision was arbitrary and capricious,
and I think that,
and that would be appropriate.
However, there is this gap in the law that-
-: Sure it's arbitrary and capricious, but it's not specific
and concrete to this particular child's circumstances,
is it? -: It's not.
It's certainly not.
And they will claim that the the child is in foster care
and will be removed at any point.
And so that's why she could,
she's at a greater risk of harm.
But the department fails to inform the court
that this child is also in kinship foster care
just like the three brothers.
And indeed, they also will state
that she's a younger age,
but when they first took custody of those three boys,
the youngest boy was 11 months old.
And this child right now is 13 months old.
-: Can I ask another- -: Sorry, go ahead.
-: Sorry, was there anything in the record to suggest
that the medical providers for the three boys
had provided a letter attesting
to the medical necessity of vaccinating the three boys
such as they had for the girl?
-: No, however, this letter is just a general recommendation
that all children-
-: I dunno, it sayS, I don't know,
I'm looking at the first paragraph
and I don't know that
that's a fair characterization of the letter.
-: Well, the rationale that they provide is
because it's generally recommended by the CDC.
-: Well that seems to me something
for the trial court to weigh.
But the first paragraph does say that it,
this affidavit is filed to attest
to the medical necessity of administration
of routine immunizations for the infant,
infant, I won't say her name.
-: Right, okay, and I will note that in the Arkansas
and the Arizona cases that I've mentioned earlier,
that was the exact same situation.
We had a child, an infant child,
and we had affidavits from doctors
attesting to the medical necessity,
and yet those courts still held that
because of the religious exemption
that the legislature provides as a matter of public policy,
parents' religious rights outweigh the state's interest
in vaccinating children.
However, if this child had specific medical needs
or conditions that rendered her more susceptible to risk,
that could be very well a different situation,
particularly under a balancing test,
but also under a strict scrutiny standard
because it needs to be narrowly tailored to that child.
And ultimately that's what the trial court failed to do.
So- -: One last question.
-: Yes, -: Court.
Are there any, this is a year old?
Are we gonna be discovering court records that this case is,
that there's been some determination
on parental custody?
Do we have a permanent decision out there on this family?
Or is are we in the right status
right where we is this where we are in this case?
-: This, yes, this is where we are right now.
The position has not changed. And so-
-: So you're still in temporary custody,
there's no final, there's no dispensing with the consent
to adoption decision or anything like that?
-: Right, exactly. -: Okay.
-: And the vaccinations haven't occurred either?
-: Unfortunately they have been occurring.
-: Yeah.
-: And the court approved vaccinations for the entirety
of while she's in DCF care.
-: Okay. -: Okay.
-: So after the temporary custody hearing,
but before termination trial,
parents must retain this constitutional
and fundamental right
to direct their child's religious upbringing.
It's not passed to the state,
and so if this right is to have any meaning whatsoever,
it cannot be subjected to the same standard
as ordinary custodial decisions under section 21.
It must be granted appropriate consideration
and weight beyond a mere abuse of discretion review,
therefore- -: Okay.
-: Oh. -: Thank you.
-: We're gonna move to Attorney Openshaw.
-: Good morning, your honors and may it please the court?
My name is Laura Openshaw
and I represent the applicant father.
The father joins the mother in asking this court
to vacate the order
of the juvenile court authorizing the vaccination
of the child over the parent's religious-
-: Do you agree that we should be applying a balancing test
or strict scrutiny?
-: I share the counsel from the mother's view of this,
which is that both standards accomplish
what we are seeking here, which is giving deference
and respect to the parents
sincerely held religious beliefs and-
-: That's odd to me because when you have a balancing test
and you're balancing the parent's interest,
the child's interest and the state's interest
where the parents have lost custody temporarily,
that interest necessarily is also lowered
because they no longer have
full custodial rights to the parent.
So it seems to me odd that your position is
that if we apply strict scrutiny,
which requires a compelling state interest
and that this is the least restrictive alternative
to accomplish that interest, that would be the same
when we balance parents who've been found
to have been neglectful
of the child against the state's other interests
which are compelling.
-: I would say two things.
One is that in this case, there's only been a finding
by a preponderance of the evidence
at the temporary custody hearing.
-: A finding of what? -: Of either immediate risk,
in this case immediate risk of neglect,
versus at a finding of unfitness requires
a finding by clear and convincing evidence
with a number of procedural safeguards.
It's a very different standard of-
-: Right, but you'll grant me the proposition
that these parents,
because of whatever interim finding,
have a diminished interest necessarily
under the balancing test,
because they have been found to have been neglectful.
-: I think Santosky versus Kramer tells us
that it's this interest is not diminished.
That these are fun when a fundamental liberty interest
is concerned that that's a right that remains
with the parents and does not, and that only is,
parents are presumed to be fit
and to make decisions the best interest.
-: How about the third prong?
'Cause I think you may be fighting hard on something,
but the third prong is clearly different.
The least restrictive alternative is really tough,
and if you've got three kids getting non-vaccinated
and one kid getting vaccinated
and you got all kinds of exceptions,
it's the least restrictive alternative thing
that should be very important to you, isn't it?
I mean, and it's, I just, Justice, well,
and I'm confused by why you're not pushing that
'cause that's your strongest argument.
-: This is a like Lukumi Babalu Aye sort of case
where we have what the state is asserting
to be a compelling state interest
and the way the means that the state is using
to accomplish that interest,
both are, you know, we don't, there are,
there's no regulation
or authority that compels DCF to vaccinate everyone.
And there's also no means to guide DCF's decision making.
-: But what it is, is they grant exceptions.
And if this child hadn't had a temporary custody finding
that kid wouldn't be vaccinated.
So that's where the least restrictive alternative seems
to be very different from,
'cause there's a compelling interest in vaccination.
It's gonna be a tough,
it's really are they doing it
in the least restrictive way possible?
This kid doesn't go to daycare, doesn't go to school to,
I mean I think you may loose under your balancing,
but you may win under the least restrictive.
So it just help us out here why you don't want that?
-: Right well I think under the Fulton case,
it's not the, it's not,
the question isn't whether it's a compelling interest
writ large, it's whether it's compelling
as this particular child.
And that's where the consideration
of her specific c circumstances needs to be considered.
-: May I chief, I'm sorry, may I ask a question?
Even though the time has expired,
I take it that you and the mother both agree
that the calculus is different if there is a determination
or stipulation to unfitness?
-: That's correct. -: Okay.
So why is that the case first of all?
-: Because the, it's axiomatic
that the parents are presumed,
fit parents are presumed act in the best interest
of their children at its only after a stipulation
or adjudication of unfitness
that we can no longer make that assumption.
-: Okay, So I mean,
I don't wanna speak outta school, but maybe I will.
The parents did stipulate to their unfitness
with respect to the three boys, correct?
-: That's right. -: They have done that.
-: That's right. -: So does that
get taken into the calculus at all here, should it?
-: I don't as to this child, I don't think it does
because they're still presumed fit as to her.
-: Okay and so what is the distinction,
the pertinent distinction for this analysis between
for purposes of determining a correct legal framework
to analyze the question here,
which is should they be vaccinated over their objection?
What is the factor that makes a difference
between a finding of unfitness
and a finding of the findings necessary
to confer temporary custody to DCF,
which is risk of imminent harm, neglect,
risk of abuse, that kind of thing.
-: It's primarily the burden of proof,
the difference between a fair preponderance
of the evidence and clear and convincing evidence.
-: All right so if in your view,
if the standard for obtaining temporary custody were clear
and convincing evidence, then we wouldn't be here?
-: Well I think that would offend due process
at the temporary custody hearing stage.
But if I think the question is,
if there has been a determination made by clear
and convincing evidence that the standard
for unfitness involves a slightly different inquiry,
but if there has been either a stipulation agreement
or a finding by clear and convincing evidence
of parental unfitness,
then we're in a different place.
-: Okay. Thank you.
Attorney Braithwaite. (paper rustling)
-: Good morning. Your honors, may it please the court.
I'm Kristen Braithwaite
for the Department of Children and Families.
And your honors, I'm here today asking you
to uphold the trial court's conclusion
that it was in the best interest of the subject child
to allow the department to proceed with vaccinations
and further to ask you
to find the best interest test is the proper standard
to apply when a parent raises a religious objection
to the department's exercise of its statutory authority
to consent to the routine medical care
of children in its custody.
-: So how does this best interest test fit in,
if at all, into this three pronged balancing tests
that your opposing counsel suggests
or the strict scrutiny test
that you throw in at the end of your brief?
-: Well, just to clarify, I did not intend
to throw in the position
that we believe strict scrutiny applies,
but rather to acknowledge
the US Attorney general versus Desilets case,
which I think is slightly different.
But the real answer to your question is
that the balancing test,
the beauty of the best interest of the child test,
and the reason why it's sort of the capstone test
in child welfare is that it allows a judge
to take into account everything, all the factors.
So any amount of factors that are relevant
to the determination of whether, lemme say that differently.
There is an opportunity for parents religious objections
to be fleshed out.
There is an opportunity for the child's best interests
health wise-
-: But it doesn't give this constitutional right
any special status or does it 'cause we don't, you know,
it's easy best interests
when we don't have free exercise of religion
under the first amendment of the Constitution.
But when we do, we tend to
have the constitution be our focal point.
And you have it as the tail on your dog.
Help us out here.
How do we just push this over to the margins?
-: Well, as an initial matter, I think in this response
to a number of questions that were asked of appellant,
while parents have a fundamental right
to make decisions concerning the care, custody,
and control of their children,
that right is put on hold
when the department meets its burden of proving
by a fair preponderance of the evidence
that a child is at imminent risk of abuse
or neglect in their parents' care,
and that removal of the child is necessary to protect him
or her from serious abuse or neglect.
-: What does it mean to be put on hold, is it irrelevant?
-: It means that because the department has shown,
because the child, it's less about the department,
but because the child would be at risk in the care
of the parents, that is why the legislature then entrusts
the department to make these determinations.
So while appellants argue
that no unfitness decree has issued
and therefore they should be treated as fit,
that is not actually the statutory framework that exists.
And I just wanna be clear that I would direct the court-
-: But don't, help us out though.
-: Okay. -: 'Cause the state doesn't get
to make religious decisions so that,
and the parents here could very well be reinstated,
you know, at any point in time,
they haven't lost their parental rights.
I'm just trying to get a sense of
how we're not gonna run into problems here
if we just do this the way you're talking about,
which is classic best interest of the child as if this were,
you know, what time they go to school
or who gets, I don't know,
it just seems like it's much more complicated than that.
-: Well, and this court has the opportunity to direct
what factors should be considered
in this best interest test,
but to answer your question of how we do that,
the reason is that, I mean, due process requires notice
and an opportunity to be heard.
-: But again- -: So in order for-
-: But again, you can confront the First Amendment
because that's, you know,
that's the hard part of this thing.
And you, does it apply?
I mean, do do we apply strict scrutiny or not?
-: We do not apply strict scrutiny.
-: And, and we don't apply strict scrutiny
because this child is in temporary custody.
If this child were not in temporary custody,
I take it the state couldn't,
the First Amendment would apply standard right?
It would be...
-: Well, even in our cases of religious exemptions
for vaccination, we have always the stop gap
that if there is a public health outbreak, I mean,
we have extensive case law that does not speak
to children who've been removed from their parents' custody
that supports the fact that
the First Amendment is not violated
by compulsory vaccination
-: In extraordinary circumstances.
But what you're talking about is routine medical care,
that's garden variety recommended
by the Academy of Pediatric, blah, blah, blah.
So help me, you know,
apply what your what the extreme case law to this situation.
-: Well, this is not extreme medical care.
And so I think it's important to acknowledge
that vaccinations are routine medical care
and certainly the,
and for what it's worth the standard for extra-
-: Doesn't that cut against you?
It seems like we've overridden parents' decisions
if the child's about to die.
But here you're asking to override decisions-
-: I'm not-
-: In a non-threatening except for in a general sense way.
-: Well, I'm not asking that we automatically override,
I'm asking that we leave the best interest test to the judge
because you had made a comment, for example,
Justice Kafker about what happens if the child is about
to be returned home.
I mean the beauty of the best interest test,
which is discussed in in many cases is it's fluid
and it allows the judge to take in any evidence that is,
goes in favor of the child's best interest
and against the child's best interest.
-: Doesn't that go run right into Fulton
and the US Supreme Court saying
when we're dealing with religious rights,
they have a special status,
and if the state is kind of fooling around
sometimes doing it one way, sometimes doing another,
that's a real problem under the first amendment.
And the fact that you've got three kids not vaccinated
and one kid vaccinated is runs right into like,
what is driving DCF?
-: So I wanna, I think there's two questions in there
and I wanna answer both of them.
First to touch on the question of why one child
has been vaccinated and the others haven't.
I think that evidence is
that child specific analyses were being done,
it is incredibly relevant to the urgency of vaccinations
that this child was an infant.
And if you go onto the CDCs website,
they'll talk about the whole point of vaccinations is
to provide antibodies that the individual has-
-: One of the other kids younger than this child isn't?
-: No. -: Okay.
What is, what are the age of this child?
-: This child was put into the department's temporary custody
at discharge from hospital following birth, so days old.
-: There was also an eight month old child
who wasn't vaccinated, right?
-: But did not come
into the department's custody until, until much later.
And so, and so the relevance-
-: How much later?
-: I believe it was seven months,
but I am happy to provide-
-: It was a 15 month old? -: What's that?
-: It was a 15 month old child that came into DCFS custody.
-: Yes, they were young, but they were not newborns.
And it is relevant
because newborns have had no opportunity
to be exposed to antibodies,
and that is the most urgent concern.
They were also together, those three siblings,
this child is not,
and she's gonna be exposed
to exponentially more individuals.
So I think there was some child-
-: Why is that? Isn't it the opposite?
These other kids go to school,
they play with other children.
This child is an infant
and staying in a controlled environment.
-: So this child will be meeting with her siblings
who are unvaccinated and who are going to school
and being exposed to number of people.
So because she's in a different home
and meeting with her siblings, her exposure is greater.
And I would, I would also-
-: Isn't it greater than for the other kids too?
I don't understand why that's a one way ratchet,
if they're meeting with each other, why is she more-
-: It's relevant.
-: I'm not, I'm just a real question.
Why is she more exposed than they are?
-: Well- -: Everybody's not vaccinated.
-: Well relevance here is that she's an infant
and so she's not being protected the way.
So this, the children
that were in the parents' care for longer.
I don't know what was happening at that time.
-: So it's DCF's position now
that the child is no longer in infant,
that we don't need to vaccinate anymore?
-: No, it's the department's position that the judge
is best entrusted to make that determination
and that the best interest of the child test
allows the court, allows the trial court to do that.
And that the judge in this case was guided by the factors
that we've seen in Desilets.
-: May I ask a question? -: Sorry.
-: Do you at least concede
that the parent's religious interest
needs to be incorporated into the best interest
of the child analysis if that were the test
that we were to settle on?
-: I do believe it is absolutely proper
for the judge doing the best interest
of the child's analysis
to include the parent's religious interests.
But I wanna be very clear-
-: Why yeah.
-: That I don't agree with appellant
that the parent's religious interest
should be given special weight.
And if anything, I would argue
that goes directly against the face
of the Commonwealth jurisprudence,
which says that the child's interest have
to supersede the parent's interest.
-: What case says that that would be
what case says it, that seems dramatic.
I'd love case law on that.
-: Yes so I would point the court
to Magazu versus Department of Children and Families
while religious belief, oh.
-: That one cuts against you,
because that's effectively the strict scrutiny test.
-: That one says if there's a sincerely held religious belief
that's substantially burdened,
the commonwealth needs to come up
with a compelling state reason
why this particular child needs to be vaccinated.
And that exceptions to that would jeopardize
that cons, that goal, that important goal of the state.
-: Well, and it's not the one I should have cited,
but I also think it stands for the proposition-
-: Give was the one you should have said.
-: Okay, I'll tell you the one I should, my apologies.
I would point the court
to petition of department of public welfare
to dispense with consent to adoption.
That's 383 Mass 573.
I would also point the court- -: What does it say?
-: That while the right to parent one child,
one's child is indeed fundamental,
it is not free from intrusion by the state.
It is not absolute.
And I would also point the court to-
-: That deals with religion in any,
does that even deal with religion at all?
-: Well, I think all of these deal with
whether or not the parents' rights
should supersede the child's rights
in reaching a determination of best interest.
-: Agree. Agree. -: And they talk about-
-: Fundamental I agree.
Everyone understands, you know,
we're gonna have the compelling state interest analysis
for the state,
we're gonna have,
but I just for you to,
it would really be helpful to give us some authority.
-: Then I would point the court
to Prince versus Massachusetts,
which I think does make clear that.
-: Prince Prince is the old US Supreme Court case right?
-: It is, yes.
-: And one that's been beaten around a fair amount
by the US Supreme Court, right?
-: But one that stands, it currently stands
and it does stand for the property-
-: In that case, was there an exception made by the state
for the child labor laws?
-: For the child?
-: The labor laws that were at issue there,
it was the child who was working
because she was with her parent
and there was a child labor law
that said you can't have children working.
-: I don't recall whether there was an exception
made in that case.
-: See that to me that makes a big difference
because here the state has allowed exceptions
for religious reasons.
-: I would also point the court to Blixt Vs. Blixt
which is, again, it uses strict scrutiny.
Although using strict scrutiny,
it finds that the best interest test can withstand that.
But I think it also stands for the proposition
that infringement on the rights of parents
is permissible when necessary-
-: Is that a domestic violence case?
I can't remember.
Is Blixt a religion case?
-: It's Blixt V, what's the one?
-: Is Blixt a religion case?
-: I believe there was, I know it was a family law case.
I apologize for that.
-: It was the grandma who wanted visitation,
-: Yes grandparent visitation. That is what it was.
It was about whether or not harm would befall the child
by allowing a grandparent
to visit over the parent's objection to such visitation.
-: Right so we supported the parents' rights
to limit the grandparent, right?
-: But there was extensive language
about the fact that infringement
on the rights of parents is permissible
to prevent harm to the child.
And again, I really, I know I'm out of time.
I really wanna end on the proposition
and point the court to adoption of Zayden,
which is that these fundamental rights are put on hold
when the child enters the temporary custody
of the Department of Children and Families.
And I think that's highly relevant to the determination
that a juvenile court judge would be making
in the context of a-
-: I hate to but put on hold again,
back to Justice Wendlandt's form put on hold is not
the language in the cases.
What do the cases say?
They don't, they they do what they
they limit it somehow, right?
-: Yes. So.
-: But again, it's different with religion
'cause the state can't take over religion either.
-: It says parents have a fundamental right to make decisions
concerning the care, custody and control of their children.
But General law chapter 119, section 24 protects
that basic right by prohibiting the department from removing
from a parent's care, even temporarily,
unless it can show that removal is necessary
to protect the child from serious abuse or neglect.
Here a court of law ordered the child
out of parents' care for her safety.
The conditions of removal were litigated.
This is at this point of battle between custodians.
And this is one where I do not believe
that the parents' fundamental rights are being infringed.
-: Okay. Thank you very much. -: Thank you, your honors.
-: Okay and finally, attorney Kaiser.
-: Good morning, your honors.
My name is Jean Kaiser
and I represent the appellate child
who is now 13 months old.
And on her behalf, I would ask this court
to uphold the trial court decision
so that she can continue receiving vaccinations
and other medical treatment
that protect her from potentially life-threatening
but highly preventable diseases.
And I first wanna address the court's question
about strict scrutiny.
Strict scrutiny does not apply in this case.
-: Your brief doesn't even apply the constitution
as far as I can remember.
-: Excuse me? -: Your brief doesn't even
address the constitution, right?
It's all a statutory in terms.
-: No, that's incorrect.
I do have a section, a large section.
-: What do you say about if strict scrutiny doesn't apply,
what, how do we incorporate the constitution
into your analysis?
-: Okay, well I wanna back up for a minute
and explain to the court why strict scrutiny does not apply.
-: Okay. -: Strict scrutiny applies
when an individual is exercising their own religious right.
The United States Supreme Court has never held
that when a parent is imposing their religious belief
on a child who is too young
to have their own religious beliefs.
And this child certainly is too young.
-: Yeah, case, I would love to read a case
where the Supreme Court says that.
Do you cite something on that proposition?
-: Absolutely, your honor,
-: US Supreme Court has said that a parent is-
-: In Prince V- -: Is not speaking
for their child on a free exercise,
that's a interesting point.
I'd love to read the case.
What is it?
-: Prince versus Massachusetts says,
while parents are free to make martyrs of themselves,
they are not free to make martyrs of their children
who are too young to have religious beliefs.
Similarly, in Wisconsin versus Yoder,
which involved the case in which Amish
people of the Amish belief
did not wanna send their children to school,
the court said, in such a case you're going
the court should impose a balancing test
that takes into account the rights of the child,
the rights of the government, and the rights of the parents.
Now in, and in that case,
the court found that the balance favored the parents,
but it was it not a strict scrutiny test.
It was a balancing test.
And I think that's why appellants have-
-: And in those two cases,
do they expressly say strict scrutiny doesn't apply?
Or do they articulate balancing
without rejecting strict scrutiny?
-: They don't explicitly say strict scrutiny
does not apply but it-
-: Prince's before the strict scrutiny formulation
by the Supreme Court?
-: That's correct. -: It predates it.
So really it's Wisconsin versus Yoder is your best case
for this point.
-: I think too,
that this court itself applied the test promulgated
by the appellants in McCauley
matter of McCauley and in custody of a minor
in which- -: So,
can I ask you about those cases?
-: Sure.
-: Because those were extreme medical situations,
the child will die if we don't do this.
-: That's correct. -: How do we apply that context
to routine medical care such as routine vaccinations?
-: Well, to answer that question, I wanna speak to the issue
of what exactly are the parents' rights in this case.
So the parents have any parent starts with fundamental right
or fundamental right to raise their child as they see fit,
including the right to direct their religious upbringing.
However, when the court intervenes,
the consequence here of the trial court finding
that these parents put their child at immediate risk
of severe abuse or neglect is
that their fundamental rights have been interfered with,
and that includes their religious rights,
what they're left with,
and there is a footnote in another case
called custody of a minor
that says that they have certain residual rights
to determine the child's religious affiliation,
but affiliate,
so already what we're dealing
with here differently than in McCauley
and custody of minor are parents whose rights are
very attenuated.
-: Right. So you're already applying the McCauley test.
My question is, why do we apply McCauley
in the context of routine vaccinations,
whereas McCauley was a test at least as applied in minor
and in McCauley
for extreme child will die if we don't intervene situations.
-: Well in, in McCauley there is no language
that says this analysis is limited to child will die.
And I do point in my brief to several out of state cases
in which a similar type balancing test was applied
even when the child wouldn't die.
But aside from that, your Honor,
I would say I don't think we even need to get
to the balancing test
because I think the, this case could be decided
under the plain language of the statute.
And in my brief, I address-
-: Well, I mean it seems to me that's a hard one
because the statute just says routine
or it says medical care decisions can be made by DCF.
This case presents the question
of when the parents have a sincerely held religious belief
against vaccination,
does 21 allow DCF to go ahead nonetheless,
and even DCF didn't just do it,
they actually went
and applied to the court for permission
because they recognized that there was a balance
that needed to be required.
-: That's correct.
And but if you apply,
so let's say we apply the balancing test.
So the balance I think works out
to favor the child getting vaccinations
because the parents' rights are by the nature of the fact
that the child is in temporary custody, quite circumscribed,
the child's right to be protected against serious disease
is at issue
and as is the government's right
to make sure children in their care are protected.
And one thing I wanna add here, your Honors,
is that in this case-
-: Can I push you again?
So I see that in some ways,
but then I say to myself,
if the government's right is not exercised
with the three other kids,
and it's not obvious to us why
this child is differently situated than those three others,
doesn't it suggest the government is kind of picking
and choosing when it really cares about this?
And that's problematic
'cause these parents, you know,
care in the sense that they're here,
they're challenging this and the state kind of picks
and chooses when it wants to do this.
-: Your Honor, I can't speak
to why DCF didn't have the other children vaccinated,
but I can speak to my child,
my client's interest in being vaccinated,
and I also want to note that the parent's objection,
their religious objection to vaccination is
because they do not believe
in putting foreign foreign substances into the child's body.
So the logical extension, if this court were to find
that their religious objections trump the child's interest
in remaining healthy would also be
that if the child has a fever,
that the foster parents would not be able
to give her Tylenol to treat that fever.
And in fact, the father testified that
in a similar circumstance
because of his religious beliefs,
he would give the child a bath and some tea.
-: You don't really want us to
go into the sincerely held religious belief issue do you?
-: I think that the court, there's no-
-: We don't have a factual record from
what I understand also the parents,
there's a continuance that wasn't allowed.
So the parents aren't present.
It's, do you really want to go back to that?
-: No, I'm not going back to that, your Honor.
The, I think the trial court did exactly
what it was supposed to do,
which is that it assumed the sincerity,
the court is not allowed to get behind
whether or not the religious belief makes sense
or is inconsistent.
It is a question of sincerity
and the court assumed the sincerity,
but what I am saying is the impact on the child
of medical decisions being made according to
these parents' religious beliefs
when she is in temporary custody
because they were found to have put her at risk.
And so it means that can she get antibiotics
if she has an ear infection?
Maybe not because the parents might object to that.
And it creates a situation where DCF has to keep going back
to the parents whose rights are,
according to this court,
their residual rights are limited
to determining her religious affiliation.
No one is trying to, to change her religious affiliation,
but it would be very onerous and it would entangle DCF's-
-: The case that you're talking about
that just limits the rights to religious affiliation.
Is, was that case just about that issue?
-: No, absolutely not.
That is just a footnote in
a another case which says the parents retain
residual rights to visit the child, consent to adoption,
and determine the child's religious affiliation.
-: And none of that,
none of that in the footnote was the issue du jour
for that case? -: It was all dicta.
-: It has absolutely nothing to to do.
It's just a sort of a,
but I would note that the statute that's referenced
with regard to religious affiliation
is actually the foster parent's Bill of Rights
and all that it says is
that the foster parent should respect
the child's cultural background.
It doesn't say that they should have to make sure
that every religious practice
that the parents would prescribe is followed.
-: What is the distinction, if there is one,
between the balancing test that you are advocating
and the balancing test
that the mother is advocating other than an application?
-: I think it's just the application.
-: Sure and then, and okay, that's helpful to me.
And what do you see as the distinction
between the balancing test that you are advocating
and the best interest of the child test
that DCF is advocating?
-: Well, I think that in the child's interest
in the balancing test is her best interest, right?
-: That's a factor -: That yes,
whatever her best interests are here,
clearly her best interests are to be vaccinated.
Then you also have to look at the government's interest.
So the government has an interest
in caring for this child who's in their care
and protection as well as all of the children
in the Commonwealth,
it has an interest in maintaining herd immunity
among all of the children in the commonwealth
so as to protect all children
and then balanced against that
is this the parents' very attenuated right,
because is there an interference here
with the fundamental parental right?
Yes, there is, but this court inherited protection
and Robert said that that is a feature
of the temporary custody statute for, you know,
the pause that the attorney for DCF was talking about,
those fundamental rights are in essence on hold
while the child's in temporary custody.
-: Okay, I'm sorry is, does anyone have any other questions?