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noting that, pursuant to General Statutes § 1-1, ordinary meaning of word is determined by reference to dictionary definitions
Summary of this case from Borelli v. RenaldiOpinion
SC 19902
08-15-2017
IN RE ELIANAH T.-T. et al.
Benjamin M. Wattenmaker, with whom was Joshua Michtom, for the appellants (respondents). Rosemarie T. Weber, assistant attorney general, with whom were Evan O'Roark, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Benjamin M. Wattenmaker, with whom was Joshua Michtom, for the appellants (respondents).
Rosemarie T. Weber, assistant attorney general, with whom were Evan O'Roark, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
The listing of judges reflects their seniority status on this court as of the date of oral argument.
ROBINSON, J.The dispositive issue in this appeal is whether General Statutes § 17a–10 (c) authorizes the petitioner, the Commissioner of Children and Families (commissioner), to vaccinate a child placed temporarily in her custody, over the objection of that child's parents. The respondents, Giordan T. and Nicanol T., appeal from the decision of the trial court denying their motion seeking to prevent vaccination of their minor children, Elianah T.-T. and Nathaniel T.-T. On appeal, the respondents claim, inter alia, that § 17a–10 (c) does not authorize the commissioner to vaccinate the children over the respondents' objection because vaccinations do not constitute "medical treatment" within the meaning of that statute. We agree with this claim and conclude that vaccinations are not "medical treatment" as contemplated by § 17a–10 (c). Accordingly, we reverse the decision of the trial court.
General Statutes § 17a–10 (c) provides: "When deemed in the best interests of a child in the custody of the commissioner, the commissioner, the commissioner's designee, a superintendent or assistant superintendent or, when the child is in transit between department facilities, a designee of the commissioner, may authorize, on the advice of a physician licensed to practice in the state, medical treatment, including surgery, to insure the continued good health or life of the child. Any of said persons may, when he or she deems it in the best interests of the child, authorize, on the advice of a dentist licensed to practice in the state, dentistry, including dental surgery, to insure the continued good health of the child. Upon such authorization, the commissioner shall exercise due diligence to inform the parents or guardian prior to taking such action, and in all cases shall send notice to the parents or guardian by letter to their last-known address informing them of the actions taken, of their necessity and of the outcome, but in a case where the commissioner fails to notify, such failure will not affect the validity of the authorization."
The respondents appealed from the decision of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51–199 (c) and Practice Book § 65–1.
The respondents also raise several constitutional claims. Specifically, they argue that, as applied, § 17a–10 (c) violates (1) their fundamental liberty interest in directing the care and religious education of the children, and (2) their right to procedural due process. Because we resolve this appeal on statutory grounds, we do not address these claims. See, e.g., State v. Brown, 309 Conn. 469, 478–79 n.11, 72 A.3d 48 (2013) ("[i]t is well established that this court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case" [internal quotation marks omitted] ).
The record reveals the following undisputed facts and procedural history. The Department of Children and Families (department) first became involved with the respondents' family on April 21, 2016, after the Rocky Hill Police Department was called to investigate a physical altercation between the respondents. The department learned from police that the respondents and the children, who were one and two years old at the time, had been living out of a minivan for several months as they moved from Florida to Connecticut, making stops in North Carolina, Colorado, and New York. The police subsequently arrested both respondents for disorderly conduct. Following the respondents' arrest, a social worker from the department met with the children at the police station and observed that they smelled of urine, were filthy, and were covered with multiple bruises. The department then invoked a ninety-six hour hold over the children pursuant to General Statutes § 17a–101g (e). The respondent mother gave the department permission to have the children medically evaluated.
Medical tests revealed that both of the children have Von Willebrand's Disease, a genetic blood disorder that may have caused their bruising.
Thereafter, on April 25, 2016, the commissioner filed neglect petitions as to both of the children and sought ex parte orders of temporary custody. On April 29, 2016, the trial court sustained the orders of temporary custody and ordered specific steps to facilitate reunification of the children with the respondents pursuant to General Statutes § 46b–129. At a hearing held on August 23, 2016, the respondents entered pleas of nolo contendere as to the neglect allegations and agreed to commit the children temporarily to the care and custody of the commissioner. The trial court entered findings of neglect, rendered judgments on the petitions in accordance with the respondents' pleas, and committed the children to the custody of the commissioner. At that hearing, the parties advised the court that the respondents, on the basis of their sincerely held religious beliefs, objected to vaccination of the children for common childhood diseases in accordance with the department's usual practice. The respondents then made an oral motion seeking to prevent vaccination, to which the commissioner objected.
On November 17, 2016, the trial court held a one day hearing to determine whether the commissioner had the authority to vaccinate the children in light of the respondents' religious objection. During the hearing, the commissioner presented four witnesses: (1) Iris Thompson, a nurse consultant employed by the department; (2) Stephen Humphrey, a clinical psychologist who had conducted a court ordered evaluation of the respondents; (3) Fredericka Wolman, a pediatrician employed as the department's director of pediatrics; and (4) Jessica Nordlund, a department social worker. Thompson and Humphrey testified that they had communicated with the respondents regarding the immunizations and that the respondents never expressed a religious objection. Wolman testified about the medical importance of immunizations, and Nordlund testified that she had to call numerous physicians before locating one who would treat unvaccinated children. In response, the respondent mother testified about her religious beliefs.
On January 13, 2017, the trial court issued a memorandum of decision denying the respondents' motion and granting the commissioner permission to vaccinate the children. The trial court stated that it "need not reach the issue of [the respondent] mother's religious belief, because the children are committed to the [custody of the commissioner]." The trial court similarly deter-mined that the exemption provided by General Statutes § 10–204a to the state's vaccination requirement for school children, for religious objections to immunization, did not apply in this case because the children were committed to the care and custody of the commissioner. The court concluded that the crucial issue in this case was the fact that the commissioner had custody of and control over the children, which gave the commissioner "the authority and obligation to vaccinate" them pursuant to § 17a–10 (c). This appeal followed. See footnote 2 of this opinion.On appeal, the respondents claim, inter alia, that § 17a–10 (c) does not authorize the commissioner to vaccinate the children over the respondents' objection because vaccinations are not "medical treatment" as contemplated by the statute. The respondents contend that the plain language of § 17a–10 (c) indicates that preventative vaccinations are not "medical treatment" because "treatment" is defined as the steps taken to cure an injury or disease. Thus, the respondents argue that the commissioner may authorize "medical treatment" without parental consent only to address an existing injury, illness, or disease. Because the commissioner did not seek to vaccinate the children to cure an existing illness or disease, but rather as a precautionary measure, the respondents contend that such vaccinations do not fall within the plain language of the statute. Alternatively, the respondents contend that, even if the court deems the phrase "medical treatment" ambiguous, the legislative history of § 17a–10 (c) establishes that the legislature intended the statute to give the commissioner only limited authority to provide medical treatment without parental consent in emergency situations.
The trial court stayed execution of its decision until February 22, 2017, the date on which the respondents appealed. The parties disagree about whether the filing of the present appeal triggered an automatic stay pursuant to Practice Book § 61–11. We agree with the commissioner's argument that an automatic stay did not arise from this appeal because § 61–11 (b) specifically excludes juvenile matters, such as the present case, brought pursuant to chapter 33a of our rules of practice. Nevertheless, on May 1, 2017, this court, sua sponte, ordered a stay of the trial court's decision pending resolution of the present appeal. See Practice Book § 60–2.
In response, the commissioner contends that "[t]he plain language of § 17a–10 (c), very simply, gives the commissioner the authority to provide medical treatment to children in its care, consistent with the child's best interests." In the commissioner's view, § 17a–10 (c) is plain and unambiguous, and the phrase "medical treatment" is commonly understood to include the "mitigat[ion]" of an illness or disease. Accordingly, the commissioner contends that vaccinations are "medical treatment" because they are a medicine administered by a physician to mitigate against diseases. We, however, agree with the respondents and conclude that vaccinations do not constitute "medical treatment" under § 17a–10 (c).
The issue of whether § 17a–10 (c) authorizes the commissioner to vaccinate children committed to her temporary custody over parental objection presents a question of statutory construction over which we exercise plenary review. Gonzalez v. O & G Industries, Inc. , 322 Conn. 291, 302, 140 A.3d 950 (2016). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ...." (Internal quotation marks omitted.) Id., at 302–303, 140 A.3d 950. Importantly, "ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation." State v. Orr , 291 Conn. 642, 654, 969 A.2d 750 (2009). In other words, "statutory language does not become ambiguous merely because the parties contend for different meanings." (Internal quotation marks omitted.) Allen v. Commissioner of Revenue Services , 324 Conn. 292, 309, 152 A.3d 488 (2016).
In accordance with § 1–2z, we begin our analysis with the relevant statutory text. Section 17a–10 (c) provides in relevant part: "When deemed in the best interests of a child in the custody of the commissioner, the commissioner, the commissioner's designee, a superintendent or assistant superintendent or, when the child is in transit between department facilities, a designee of the commissioner, may authorize, on the advice of a physician licensed to practice in the state, medical treatment, including surgery , to insure the continued good health or life of the child. ..." (Emphasis added.)As the statute does not define the phrase "medical treatment," in accordance with General Statutes § 1–1 (a), we look to the common understanding expressed in dictionaries in order to afford the term its ordinary meaning. See, e.g., Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , 320 Conn. 611, 645, 134 A.3d 581 (2016). The American Heritage College Dictionary (4th Ed. 2007) defines "treatment" as the "[a]dministration or application of remedies to a patient for a disease or injury ...." (Emphasis added.) Similarly, Black's Law Dictionary (4th Ed. 1968) defines the word "treatment" as "[a] broad term covering all the steps taken to effect a cure of an injury or disease ; the word including examination and diagnosis as well as application of remedies ." (Emphasis added.) These definitions, and particularly their focus on remedies, make clear that the phrase "medical treatment" in § 17a–10 (c) contemplates the cure of an existing illness, injury, or disease.
The American Heritage College Dictionary (4th Ed. 2007) defines "remedy" as "[s]omething, such as medicine, that relieves pain, cures disease, or corrects a disorder." See also Webster's New World Dictionary (2d Ed. 1972) (defining remedy as "any medicine or treatment that cures, heals, or relieves a disease or bodily disorder or tends to restore health").
The commissioner, however, relies on other definitions of "treatment" that include the "mitigation" of a disease or illness. See The American Heritage Dictionary of the English Language (5th Ed. 2011) (defining "treatment" as "[t]he use of an agent, procedure, or regimen, such as a drug, surgery, or exercise, in an attempt to cure or mitigate a disease, condition, or injury"). The definition of "mitigate," however, is to "make or become milder, less severe, less rigorous or less painful ...." Webster's New World Dictionary (2d Ed. 1972). Thus, the commissioner's contention that the phrase "medical treatment" includes vaccinations because they "mitigate" against the possibility of contracting a disease does not comport with the plain meaning of the word "mitigate" because the definition of that term contemplates addressing a presently existing condition. Put differently, one cannot mitigate an ailment that may or may not arise in the future.
Ambiguity arises, however, because the plain meaning of "medical treatment" with respect to vaccinations conflicts with the subsequent phrase in § 17a–10 (c), namely, to "insure the continued good health or life of the child." The phrase "continued good health" reasonably may be read to suggest that the commissioner may seek preventive "medical treatment" for a healthy child in her custody. This contrasts with the plain meaning of "medical treatment," which requires an existing illness to trigger the commissioner's authority to seek "medical treatment." Accordingly, we conclude that this apparent conflict renders § 17a–10 (c) ambiguous.
In resolving this ambiguity, we first look to other portions of the language in § 17a–10 (c) and related statutes. We begin with the well settled principle that, "[a]ccording to the [doctrine] of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated." (Internal quotation marks omitted.) Balloli v. New Haven Police Dept. , 324 Conn. 14, 23, 151 A.3d 367 (2016). Here, in § 17a–10 (c), the phrase "medical treatment" is modified by the phrase "including surgery." As "medical treatment" is a general term and "surgery" is more specific, "medical treatment" should be construed to include medical procedures akin to surgery, such as procedures undertaken to remedy an existing illness, injury, or disease, rather than prophylactic measures such as vaccinations.
This reading of § 17a–10 (c) is also supported by reference to related statutes contained in title 17a of the General Statutes. See, e.g., Mayer v. Historic District Commission , 325 Conn. 765, 777, 160 A.3d 333 (2017) ("looking beyond [General Statutes] § 8–8 [a] [1], related statutes affecting land use appeals demonstrate that, if the legislature wanted to create statutory aggrievement in historic district cases, it could have done so expressly" [internal quotation marks omitted] ). In contrast to § 17a–10 (c), several other provisions in title 17a specifically reference both treatment and prevention . See General Statutes § 17a–49 (a) (directing the commissioner to develop programs for the "treatment and prevention" of child abuse and neglect); General Statutes § 17a–22g (a) (discussing behavioral health and substance abuse "prevention and treatment"). Had the legislature intended for § 17a–10 (c) to allow for preventative measures, it could have included that language in this provision. See, e.g., State v. Heredia , 310 Conn. 742, 761, 81 A.3d 1163 (2013) ("[w]hen a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed" [internal quotation marks omitted] ).
We note that other provisions in title 17a of the General Statutes provide additional circumstances in which the commissioner may authorize medical care for children. For example, § 17a–101g (f) provides in relevant part that, during a ninety-six hour hold, the commissioner "shall provide the child with all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent of the child's parents, guardian or other person responsible for the child's care, provided reasonable attempts have been made to obtain consent of the child's parents or guardian or other person responsible for the care of such child. During the course of a medical examination, a physician may perform diagnostic tests and procedures necessary for the detection of child abuse or neglect...." (Emphasis added.) Thus, while title 17a enumerates several instances in which the commissioner may authorize medical care, it does not provide for the authorization of preventative care, such as vaccinations.
If the legislature's intent is clear from the statute's plain and unambiguous language, our inquiry ends. See, e.g., State v. Wright , 320 Conn. 781, 801, 135 A.3d 1 (2016). Where, as here, however, "the statute is ambiguous ... we go on to consider extratextual evidence of its meaning, such as the statute's legislative history, the circumstances surrounding its enactment, the legislative policy the statute implements, and the statute's relationship with existing legislation and common-law principles." Id.
Accordingly, we examine the legislative history of § 17a–10 (c). As originally enacted in 1969, § 17a–10 did not authorize the commissioner to seek any medical treatment for children in his or her care. See Public Acts 1969, No. 664, § 11. The legislative history of No. 295 of the 1971 Public Acts, which added the "medical treatment" language to § 17a–10, indicates that the legislature did not contemplate extending the commissioner's authority beyond emergency situations. As one of the sponsors of the underlying bill explained, that language "provides that the [commissioner] shall be empowered and authorized to have emergency medical treatment given to any ward placed in his custody regardless of which institution he is situated in. This presently is not possible and the Attorney General last year was forced to give a ruling indicating that the [c ]ommissioner had no power even in the face of an emergency . So this clarifies that situation ...." (Emphasis added.) 14 H.R. Proc., Pt. 5a, 1971 Sess., p. 2201, remarks of Representative John Papandrea. Similarly, during the hearings on the bill, its drafter, an employee of the department, testified as follows: "The other part of this [b]ill, relates to medical care to children [within] our custody. They provide that the [c]ommissioner, or his designee, may, upon the advice of a licensed physician or dentist, authorize emergency dental care or physical care, including surgery , for a child in our custody. This we think is a necessary provision. We find that as a matter of fact, children are most apt to be accident prone on weekends and that's the most difficult time to get a hold of their parents. We find further, that many of our parents who have children are not easily located." (Emphasis added.) Conn. Joint Standing Committee Hearings, Corrections, Welfare and Humane Institutions, Pt. 1, 1971 Sess., p. 186, remarks of John Dorman. Thus, the legislative history demonstrates that the 1971 amendments to § 17a–10 were far from an expansive grant of authority to provide routine preventative care to children committed to temporary custody but, rather, only were intended to grant the commissioner the limited authority to provide "medical treatment" during an emergency if and when a child's parents could not be reached.
When considering legislative history, "[w]e pay particular attention to statements of the legislators who sponsored the bill." Doe v. Marselle, 236 Conn. 845, 852 n.9, 675 A.2d 835 (1996).
We note that we have not reviewed the opinion of the Attorney General discussed in the legislative history because it is not included in the parties appendices and was not readily available in the Connecticut State Library.
"[I]t is now well settled that testimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation. ... This is because legislation is a purposive act ... and, therefore, identifying the particular problem that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 314, 819 A.2d 260 (2003).
We note that the respondents rely on § 10–204a (a) (3), which provides in relevant part that "[e]ach local or regional board of education, or similar body governing a nonpublic school or schools, shall require each child to be protected by adequate immunization against" numerous infectious diseases "before being permitted to enroll in any program operated by a public or nonpublic school under its jurisdiction. ... Any such child who ... (3) presents a statement from the parents or guardian of such child that such immunization would be contrary to the religious beliefs of such child or the parents or guardian of such child ... shall be exempt from the appropriate provisions of this section. ..." (Emphasis added.) The respondents contend that this statutory right is limited to parents or guardians with custody of a child.
In response, the commissioner argues that she, not the respondents, holds the right to claim any religious exemption to vaccination under § 10–204a (a) (3) because, under General Statutes § 46b–129 (j) (4), the trial court's order of temporary custody "revoked" the respondents' "guardianship rights" and rendered her the "guardian" of the children. The commissioner asserts that this order includes the rights and responsibilities of a "guardian" as defined by General Statutes § 17a–1 (12) (B), including the "authority to make major decisions affecting the child's or youth's welfare, including, but not limited to, consent determinations regarding ... major medical, psychiatric or surgical treatment ...." The commissioner also relies on the similar definition of "guardianship" in the probate court statutes, specifically General Statutes § 45a–604 (5) (B).
As Chief Justice Rogers recognizes in her concurring opinion, the parties' statutory arguments on this point are complicated by the constitutional issues presented in view of the fact that, although the children have been committed to the custody of the commissioner, the respondents' parental rights remain intact. See Walsh v. Jodoin, 283 Conn. 187, 199, 925 A.2d 1086 (2007) ("[t]his court should try, whenever possible, to construe statutes to avoid a constitutional infirmity, but may not do so by rewriting the statute or by eschewing its plain language" [internal quotation marks omitted] ); see also, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the [s]tate"); Diana H. v. Rubin, 217 Ariz. 131, 139–40, 171 P.3d 200 (App. 2007) (statutory scheme recognizing mother's "residual parental rights" while child was in temporary custody of child welfare agency required demonstration of compelling state interest to override mother's religious objection to vaccination of child); Dept. of Human Services v. S.M., 355 Or. 241, 253–55, 323 P.3d 947 (2014) (holding that state child welfare agency has "statutory authority to immunize [children in its custody] against common childhood diseases" but recognizing that agency's rules provide procedures to protect parents' constitutional rights during period of temporary custody).
Insofar as the commissioner relies primarily on § 17a–10 (c) as the basis for her authority to vaccinate the children in the present case, we leave to another day full consideration of the division of rights between the commissioner and parents under our statutory scheme while children are committed to temporary custody. This is particularly so, given that § 10–204a (a) (3), the respondents' reliance on which occasioned the commissioner's reliance on § 17a–1 (12) (B), is inapplicable in this case given that the record does not indicate that an educational exemption is at issue—likely because the children have not yet reached school age. Moreover, the definition in § 17a–1 (12) (B), on which the commissioner relies, does not appear by its own terms to govern the temporary custody situation presented in this case, insofar as it specifically defines "[g]uardian" as a "person who has a judicially created relationship between a child or youth and such person that is intended to be permanent and selfsustaining...." (Emphasis added.) Accordingly, we leave to another day a more comprehensive examination of the statutory scheme.
Accordingly, we conclude that § 17a–10 (c) does not authorize the commissioner to vaccinate children committed to her temporary custody without parental consent. The trial court, therefore, improperly granted the commissioner permission to vaccinate the children in light of the respondents' objection.The decision of the trial court denying the respondents' motion seeking to prevent vaccination of the children is reversed and the case is remanded to that court with direction to grant the respondents' motion.
While some may question the wisdom of not authorizing the commissioner to vaccinate children in her custody, "[p]articularly [i]n areas where the legislature has spoken ... the primary responsibility for formulating public policy must remain with the legislature." Mayer v. Historic District Commission, supra, 325 Conn. at 780, 160 A.3d 333. Given the policy considerations identified by the commissioner with respect to vaccination, "it remains the prerogative of the legislature to modify or clarify [the relevant statutory provisions] as it sees fit." (Internal quotation marks omitted.) Id., at 780 n.10, 102 S.Ct. 1388.
In this opinion the other justices concurred.
ROGERS, C. J., with whom EVELEIGH, J., joins, concurring.
I agree and join with the majority's holding that General Statutes § 17a–10 (c) does not authorize the Department of Children and Families (department), to vaccinate children in the temporary custody of the petitioner, the Commissioner of Children and Families (commissioner), over the religious objection of the respondent parents, Giordan T. and Nicanol T. I write separately in order to more fully address the commissioner's claim that, as the guardian of children committed to her temporary custody pursuant to General Statutes § 46b–129 (j) (4), she has all of the rights and obligations of a guardian as set forth in General Statutes § 17a–1 (12), including the right to authorize the vaccination of such children. In support of this contention, the commissioner points out that, on August 23, 2016, the trial court issued a form order stating that "[t]he child or youth is committed until further order of the court to the Commissioner of Children and Families who shall be the guardian of the child or youth according to the statutes in such cases."The genealogy and legislative history of the relevant statutes, however, do not support the claim that the commissioner is the exclusive guardian of children who are temporarily committed to her custody, with all of the rights and obligations set forth in § 17a–1 (12). In 1971, the predecessor to § 46b–129 (j) (4) provided that the "welfare commissioner" was the guardian of a child who was committed to his custody. See General Statutes (Supp. 1969) § 17–62 (d). Notwithstanding this pro-vision and the fact that certain children were committed to both the Welfare Commissioner and the Commissioner of Children and Youth Services, at some point in 1970 or 1971, the Attorney General wrote an opinion indicating that the Commissioner of Children and Youth Services could not authorize medical treatment for children in his custody because he was only their custodian. See Conn. Joint Standing Committee Hearings, Corrections, Welfare and Humane Institutions, 1971 Sess., Pt. 1, p. 185–86, remarks of John Dorman, Special Assistant to the Commissioner of Children and Youth Services (referencing "dual commitments" where child is committed to the Department of Welfare and Commissioner of Children and Youth Services, and noting recent opinion of Attorney General that state cannot authorize medical treatment for children in its custody because it has "mere custody of the child and not guardianship"); 14 H.R. Proc., Pt. 5a, 1971 Sess., p. 2201, remarks of Representative John F. Papandrea ("[This bill] provides that the Commissioner of Children and Youth Services shall be empowered and authorized to have emergency medical treatment given to any ward placed in his custody .... This presently is not possible and the Attorney General last year was forced to give a ruling indicating that the commissioner had no power even in the face of an emergency."). Because these agencies lacked authority to authorize medical treatment for children in their custody, the legislature enacted No. 295 of the 1971 Public Acts, enabling the Commissioner of Children and Youth Services to authorize medical treatment for children in his custody. See General Statutes (Supp. 1971) § 17–418 (c). Notably, however, neither the original version of § 17a–10 (c), which referred to the Commissioner of Children and Youth Services; see Public Acts 1971, No. 295, § 1; nor the current version, which refers to the commissioner; see Public Acts 1993, No. 93–91 (amending § 17a–10 [c] to substitute "Commissioner of Children and Families" for "Commissioner of Children and Youth Services"); expressly provides that the agency to which a neglected or abused child is committed, or the commissioner of that agency, is the child's guardian. Moreover, as the majority opinion points out, the legislative history of § 17a–10 (c) indicates that it was intended only to grant the Commissioner of Children and Youth Services the authority to authorize medical treatment in emergency situations when that commissioner could not obtain the consent of the parents. See 14 H.R. Proc., supra, p. 2201. Accordingly, the statute cannot reasonably be interpreted as giving the agency to which a child is temporarily committed all of the broad rights of a guardian with respect to the medical treatment of a child. It follows, therefore, that § 17a–1 (12), which was enacted in 1998; see Public Acts 1998, No. 98–241; also cannot be interpreted as giving the commissioner all of the rights of a guardian. First, as I have just explained, the enactment of Public Act 1971, No. 295, in 1971 was premised on the legislature's understanding that the state agency having temporary custody of neglected or abused children was not the guardian of those children for all purposes, notwithstanding the fact that General Statutes (Supp. 1969) § 17–62 (d) provided that the Welfare Commissioner was the guardian of a child also committed to the custody of the Commissioner of Children and Youth Services. I am aware of no intervening law that broadened the guardianship rights of those commissioners. A statute, such as § 17a–1 (12), that defines guardianship rights and obligations does not, ipso facto, confer guardianship rights and obligations on any particular person or entity.
General Statutes § 17a–10 (c) provides: "When deemed in the best interests of a child in the custody of the [Commissioner of Children and Families], the commissioner, the commissioner's designee, a superintendent or assistant superintendent or, when the child is in transit between [Department of Children and Families] facilities, a designee of the commissioner, may authorize, on the advice of a physician licensed to practice in the state, medical treatment, including surgery, to insure the continued good health or life of the child. Any of said persons may, when he or she deems it in the best interests of the child, authorize, on the advice of a dentist licensed to practice in the state, dentistry, including dental surgery, to insure the continued good health of the child. Upon such authorization, the commissioner shall exercise due diligence to inform the parents or guardian prior to taking such action, and in all cases shall send notice to the parents or guardian by letter to their last-known address informing them of the actions taken, of their necessity and of the outcome, but in a case where the commissioner fails to notify, such failure will not affect the validity of the authorization."
General Statutes § 46b–129 (j) (4) provides in relevant part: "The commissioner shall be the guardian of [a] child [committed to the custody of the commissioner] for the duration of the commitment ...."
General Statutes § 17a–1 (12) (B) defines " ‘guardian’ " in relevant part as "a person who has a judicially created relationship between a child or youth and such person that is intended to be permanent and self-sustaining as evidenced by the transfer to such person of the following parental rights with respect to the child or youth ... the authority to make major decisions affecting the child's or youth's welfare, including, but not limited to ... major medical, psychiatric or surgical treatment ...."
The commissioner contends that, because she is the guardian of children in her temporary custody, she has the authority under General Statutes § 10–204a (a) to determine whether to invoke the exemption to the immunization requirement when immunization would be contrary to the religious beliefs of such children. See General Statutes § 10–204a (a) (3) (exempting from immunization requirement "[a]ny such child who ... presents a statement from the parents or guardian of such child that such immunization would be contrary to the religious beliefs of such child ... shall be exempt from the appropriate provisions of this section"). If § 17a–1 (12) confers this authority, however, it necessarily confers the authority to make all decisions concerning the welfare of such children, including the authority to authorize vaccinations in the first instance. Thus, the commissioner effectively contends that the authority conferred on it by § 17a–10 (c) is superfluous to its authority as the guardian of children in its temporary custody.
This opinion is not available in the Connecticut State Library. Accordingly, it is unclear to which state entity—the Welfare Commissioner or the Department of Children and Youth Services—the opinion was directed. As I discuss later in this concurring opinion, however, the legislature responded to the Attorney General's opinion by authorizing the Commissioner of Children and Youth Services to authorize medical services for children in his custody. Accordingly, it is reasonable to conclude that the opinion was directed at that commissioner.
Although General Statutes (Supp. 1969) § 17–62 (d) provided that the Welfare Commissioner was the guardian of children committed to his custody, and No. 295 of the 1971 Public Acts was directed at the Commissioner of Children and Youth Services, it is clear that the Welfare Commissioner did not have all of the rights and obligations of a guardian. If he had, then he could simply have authorized the Commissioner of Children and Youth Services to provide medical treatment to children in his temporary custody.
Second, by its plain terms, § 17a–1 (12) applies to "a person who has a judicially created relationship between a child or youth and such person that is intended to be permanent and self-sustaining ...." (Emphasis added.) This is not the case when the commissioner has only temporary custody of a child and the parents' rights have not yet been terminated. Third, the legislative history of § 17a–1 (12) provides no support for the proposition that it was intended to give the commissioner exclusive guardianship rights over children in her temporary custody.
Section 17a–1 (12) was enacted in response to Congress' enactment of the Adoption and Safe Families Act of 1997, Pub. L. No. 105–89, 111 Stat. 2115 (1997) (ASFA). See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1998 Sess., p. 2175, written testimony of Kristine D. Ragaglia, Commissioner of the Department of Children and Families (explaining that § 17a–1 [12] was intended to address AFSA requirement that states define guardian). Section 101 (b) of the AFSA, codified at 42 U.S.C. § 675 (7) (2012), defines "legal guardianship" as "a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decisionmaking." (Internal quotation marks omitted.) Title 42 of the United States Code, § 675 (2), provides: "The term ‘parents' means biological or adoptive parents or legal guardians, as determined by applicable State law." (Emphasis added.) When the ASFA was enacted in 1997, however, Connecticut's laws governing commitment of a child and termination of parental rights did not define "legal guardian." Accordingly, to address this gap, the legislature enacted § 17a–1 (12), apparently taking the language "permanent and self-sustaining as evidenced by the transfer ... of the following parental rights" from the federal statute, and the enumerated rights and obligations from General Statutes § 45a–604 (5) ; see Public Acts 1973, No. 156; that defines "guardianship" for probate purposes. The legislative history of No. 98–241 of the 1998 Public Acts, which, in addition to enacting § 17a–1 (12), made numerous changes to the statutes governing commitment to the commissioner and termination of parental rights, indicates that the general purpose of the legislation was to shorten the period in which children committed to the commissioner are in limbo. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1998 Sess., p. 1856, remarks of Attorney General Richard Blumenthal ("this bill essentially aims to move [decisions regarding the disposition of abused and neglected children] more quickly ... [and] [t]he thrust of this measure is to provide for adoptive homes as soon as possible so that they can be secure, permanent [and] stable, where reunification is not a realistic hope"). I see no evidence that the purpose of § 17a–1 (12) was to make the commissioner the exclusive guardian of children in her temporary custody.
Thus, the legislative genealogy and history of the relevant statutory scheme support the conclusion that, when the legislature enacted the predecessor to § 17a–10 (c) in 1971 it contemplated that the Commissioner of Children and Youth Services had, at most, a form of joint guardianship with the parents of a child who had been temporarily committed to him, and the rights of the parents had not been terminated. The legislature did not intend to confer the exclusive and unfettered authority to authorize any and all forms of medical treatment, provided only that such treatment was in the child's best interest. Moreover, the enactment of § 17a–1 (12) in 1998 did not expand the commissioner's rights as a coguardian of children in her temporary custody. Indeed, the department's own guidelines provide that "[t]he Area Office Social Work or Juvenile Justice staff shall refer a case to the Medical Review Board when ... the treatment may be contrary to the wishes of a parent or legal guardian ...." Department of Children and Families, "Practice Guide: Standards and Practice Regarding the Health Care of Children in [the Department of Children and Families'] Care" (2014), p. 22. Those guidelines also provide that the staff member who refers a case to the Medical Review Board "shall work with the [Regional Resource Group] Nurse or Nurse Practitioner to make personal contact with the parents ... and the parents' ... attorneys ... to ensure that they each understand the medical plan, understand the risks and benefits, are in agreement with it, and consent." Id., p. 23. Thus, the department clearly is operating under the assumption that parents continue to have an important role in making medical decisions for their children even when they have temporarily lost custody of them. This interpretation is also consistent with the important constitutional rights at issue, namely, the parents' substantive due process right to raise their children as they see fit, including the right to control the children's religious upbringing. See Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the [s]tate. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life."); see also State v. DeCiccio , 315 Conn. 79, 149, 105 A.3d 165 (2014) ("[i]t is well established that this court has a duty to construe statutes, whenever possible, to avoid constitutional infirmities" [internal quotation marks omitted] ).Accordingly, it is reasonable to conclude that § 17a–10 (c) was intended to apply only when the commissioner has a compelling reason to seek immediate medical treatment for a child in her temporary custody and there may be insufficient time to obtain the consent of the parents, i.e., in medical emergencies. When immediate medical treatment is not required to ensure the good health of the child the statute does not apply, and, in the absence of any other express statutory source to authorize medical services or treatment for the child, the commissioner must attempt to obtain the consent of the parents as the child's coguardians. If the parents cannot be found, I would conclude that the commissioner must make that representation to a court and seek to obtain an order allowing the commissioner to authorize medical treatment. Similarly, the commissioner must obtain a court order if the parents object to the medical treatment.
I emphasize that my sole focus in this concurring opinion is on the right of the commissioner to make medical decisions for children in her temporary custody when the rights of the parents have not been terminated. I express no opinion on the rights or obligations of the commissioner to care for children in her temporary custody in other contexts.
Of course, as a matter of common sense, the commissioner may also authorize medical treatment for children in her temporary custody with respect to the minor scrapes and bruises that are an everyday occurrence during childhood without obtaining the consent of the parents or a court order. I need not, however, determine the outer limits of that authority here.
With respect to the legal standard to be applied in cases in which the commissioner is seeking a court order authorizing the medical treatment of a child in its temporary custody over the objection of the parents, my research has revealed no Connecticut case that address this issue, or the issue of when a court may order medical treatment for a child in the parents' custody over the objection of the parents. In the Matter of McCauley , 409 Mass. 134, 136–37, 139, 565 N.E.2d 411 (1991), the Supreme Judicial Court of Massachusetts addressed the latter question and concluded that the rights of parents to make decisions for their children, the child's interest in continuing good health and the state's parens patriae interest must be balanced. I believe that this is an appropriate standard, and I would apply it even when the parents have lost temporary custody of their children to the commissioner.
The court stated in McCauley : "We are faced with the difficult issue of when a [s]tate may order medical treatment for a dangerously ill child over the religious objections of the parents. ... [T]here are three interests involved: (1) the natural rights of parents; (2) the interests of the child; and (3) the interests of the [s]tate. ...
"Courts have recognized that the relationship between parents and their children is constitutionally protected, and, therefore, that the private realm of family life must be protected from unwarranted [s]tate interference. ... The rights to conceive and to raise one's children are essential ... basic civil rights .... The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected. ... Parents, however, do not have unlimited rights to make decisions for their children. Parental rights do not clothe parents with life and death authority over their children. ... The [s]tate, acting as parens patriae, may protect the well-being of children. ...
"The right to the free exercise of religion, including the interests of parents in the religious upbringing of their children is, of course, a fundamental right protected by the [federal] Constitution. ... However, these fundamental principles do not warrant the view that parents have an absolute right to refuse medical treatment for their children on religious grounds. ...
"The [s]tate's interest in protecting the well-being of children is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. ... The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. ... [T]he power of the parent, even when linked to a free exercise claim, may be subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. ... When a child's life is at issue, it is not the rights of the parents that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child." (Citations omitted; footnote added; internal quotation marks omitted.) In the Matter of McCauley, supra, 409 Mass. at 136–37, 565 N.E.2d 411 ; see also Diana H. v. Rubin, 217 Ariz. 131, 136, 171 P.3d 200 (App. 2007) (under federal constitutional due process principles, when parents object to vaccination of child in temporary custody of state, "state must demonstrate a compelling interest to justify overriding the combination of religious and parental rights involved"); In re G.K ., 993 A.2d 558, 566 (D.C. App. 2010) (under statute defining "residual parental rights," parents retained right to consent to certain medical treatment for child in legal custody of state); In the Matter of Lyle A., 14 Misc.3d 842, 850, 830 N.Y.S.2d 486 (2006) (implicit in routine procedures used by Department of Human Services was that "[a] parent whose child is in foster care has the right to make the decision regarding whether or not his or her child will be given psychotropic drugs"); In the Matter of Martin F., 13 Misc.3d 659, 676, 820 N.Y.S.2d 759 (2006) (if parent of child in temporary foster care opposes administration of mental health medicine it cannot lawfully be prescribed unless court determines "whether the proposed treatment by medication is narrowly tailored to give substantive effect to the [child] patient's liberty interest"); Guardianship of Stein, 105 Ohio St.3d 30, 35–36, 821 N.E.2d 1008 (2004) ("the decision to withdraw life-supporting treatments goes beyond the scope of making medical decisions," and, therefore, "[t]he right to withdraw life-supporting treatment for a child remains with the child's parents until the parents' rights are permanently terminated"); but see In re Deng, 314 Mich.App. 615, 626–27, 887 N.W.2d 445 (because determination of unfitness "so breaks the mutual due process liberty interests as to justify interference with the parent-child relationship," state could vaccinate children in temporary custody over objection of parents pursuant to statute allowing parents to opt out based on religious objections [internal quotation marks omitted] ), appeal denied, 500 Mich. 860, 884 N.W.2d 580 (2016).
With respect to the narrow question of whether the commissioner may authorize the vaccination of a child in her temporary custody over the religious objection of the child's parents, the Connecticut legislature has already concluded as a matter of public policy that the interest of parents in opting not to vaccinate their children on religious grounds outweighs the child's interest in being immune from certain diseases and the state's parens patriae interest in ensuring the well-being of the child and the public at large. See General Statutes § 10–204a. In my view, the courts are bound by this policy determination. Accordingly, I would conclude in the present case that the commissioner had no authority either under § 17a–10 (c) or as the coguardian of the children in her temporary custody to authorize their vaccination over the parents' religious objection.
See footnote 3 of this concurring opinion for the relevant text of § 10–204a.
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