Encompassed within a parent's residual parental rights is her right to direct the religious upbringing of her child. Diana H. v. Rubin, 217 Ariz. 131, 135, ¶ 17, 171 P.3d 200, 204 (App. 2007). ¶9 A severance order "divest[s] the parent and the child of all legal rights, privileges, duties and obligations with respect to each other except the right of the child to inherit and support from the parent."
Id. at 160–61, 570 S.E.2d at 610. In the one case that we have found that held that a parent retained the authority to object to immunization, Diana H. v. Rubin, 217 Ariz. 131, 171 P.3d 200 (2007), the Arizona Court of Appeals concluded, over a dissent, that the legal custodian of a dependent child lacked the authority to immunize a child over the mother's religious objection under an Arizona statute defining the rights and responsibilities of “custody” to include “ ‘ [t]he responsibility to provide the child with * * * medical care * * * subject to the residual parental rights and responsibilities if they have not been terminated by judicial decree.’ ” Id. at 134, 171 P.3d at 203 (quoting Ariz. Rev. Stat. § 8–531(5)) (emphasis in Diana H.). The court concluded that the residual rights of parents included the right to object to immunization and “that a dependency determination does not extinguish a parent's right to control the religious upbringing of his or her child because, by the terms of the statute defining legal custody,' the right never passes to the state.”
Plaintiffs try to craft their own definition of “major, ” but they fail to cite cases that address what the Arizona legislature meant when it gave DCS authority to provide adequate treatment in A.R.S. § 8-531(5). (See Doc. 26 at 6) (citing Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000) (holding, in a case that originated in California, that “the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical examinations”); Diana H. v. Rubin, 171 P.3d 200 (Ariz.Ct.App. 2007) (holding that in general, “when the state exercises authority to direct compliance with a medical procedure to promote the health and welfare of a dependent child, it asserts a compelling interest in the child's well-being sufficient to override the parent's right to direct the religious upbringing of his or her child”)). Without relevant authority, the Court is not persuaded by Plaintiffs' definition of “major.”
Under Arizona's statutory scheme, it is also the best interests of the child, not the parent's, that are paramount in a dependency proceeding. A.R.S. § 8-843(A) ("At any dependency hearing, the court's primary consideration shall be the protection of a child from abuse or neglect."); Diana H. v. Rubin, 217 Ariz. 131, 171 P.3d 200, 207 (Az.Ct.App. 2007). Yet a parent's important interests in his relationship with his child are not trivialized in juvenile court as Arizona's dependency statutes embody a legislative judgment that a child's interests are best served by the presumptive goal of reunifying the parent and child.
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.
"When a state expresses such an interest through particular legislation, its policy judgments are entitled to judicial deference." Lee , 228 Ariz. at 153, ¶ 13, 264 P.3d 34 (quoting Diana H. v. Rubin , 217 Ariz. 131, 136, ¶ 23, 171 P.3d 200, 205 (App. 2007) ). We cannot interpret the rules and statutes in a way that permits the court to ignore presently known facts that justify continued out-of-home care and remain true to the principle of treating the child’s welfare as paramount.
Parents have "a fundamental liberty interest protected by the Fourteenth Amendment in the care, custody, and management of their children." Diana H. v. Rubin, 217 Ariz. 131, 134, ¶ 12, 171 P.3d 200, 203 (App. 2007) (internal quotation omitted). A parent's right to custody and control, however, "is not without limit or beyond regulation" and "[u]nder their constitutional powers, states may regulate the well-being of children."
In contrast, this case involves a severely impaired child whose treating professionals support his need for further intensive therapy at WAC to help him reach a therapeutic plateau. APIPA has misplaced its reliance upon Diana H. v. Rubin, 217 Ariz. 131, 171 P.3d 200 (App. 2007). Diana H. does not construe AHCCCS regulations, and instead deals with the Department of Economic Security's interest in immunizing a dependent child when a parent objected to the procedure.
“When a state expresses such an interest through particular legislation, its policy judgments are entitled to judicial deference.” Diana H. v. Rubin, 217 Ariz. 131, 136, ¶ 23, 171 P.3d 200, 205 (App.2007). ¶ 14 In all cases in which a child is held in temporary custody for five days or longer—that is, after a dependency petition has been filed—the juvenile court has a duty to conduct a preliminary protective hearing.
Although the result may be harsh when a father misses this deadline, we do not second-guess the legislature's policy decision. See Diana H. v. Rubin, 217 Ariz. 131, ¶ 35, 171 P.3d 200, 208 (App. 2007). ¶ 10 Cases from other jurisdictions have strictly applied similar statutes.