December 01, 2017

Parents Retain Right to Consent to Vaccines While Children are in State Custody

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Elianah T.-T., 2017 WL 3530856 (Conn.).

The Connecticut Supreme Court, using statutory interpretation, held Commissioner of Children and Families is not authorized to vaccinate child placed temporarily in state custody over objection of child’s parents. Court examined statute’s use of “medical treatment” and concluded statute did not intend to authorize preventive medicine, including vaccines.  

The Connecticut Department of Children and Families (DCF) temporarily removed children after both their parents had been arrested using a 96-hour hold. During the initial removal, the mother gave DCF permission to have the children medically evaluated. After neglect allegations had been filed, the parents agreed to commit the children temporarily to the care and custody of DCF. At the initial trial hearing, the mother objected to vaccinating the children for common childhood diseases due to sincerely held religious beliefs. 

DCF provided evidence at trial about the medical importance of immunizations and how challenging it was to locate a physician who would treat unvaccinated children. The trial court relied on § 17a-10(c) and granted the DCF commissioner permission to vaccinate the children because the children were committed to the custody of DCF. Section 17a-10(c) states: “When deemed in the best interests of the child in the custody of the commissioner, 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…” 

On appeal, the mother argued the commissioner was not authorized to vaccinate the children because “medical treatment” did not include vaccinations as contemplated by the statute. The Connecticut Supreme Court first looked at the text of the statute and the statute’s relationship to other statutes before looking to legislative history. The court looked at definitions of “treatment,” all of which indicate “treatment” is intended to remedy or cure an existing injury. This definition, read with the language “continued good health,” made the statute ambiguous. The court then looked at related statutes, noting they specifically mentioned both treatment and prevention. 

Finally, the court looked at the statute’s legislative history, finding that drafters and supporters of the bill directly linked the statute’s purpose to medical emergencies. The court found this history meant the statute only granted the commissioner limited authority to provide “medical treatment” during an emergency if and when a child’s parents could not be reached. Therefore, DCF lacks authority to vaccinate children in temporary custody without parental consent. 

Two judges concurred, agreeing the commissioner lacked authority to vaccinate because DCF did not have exclusive custody. The judges stated DCF’s custody is a guardianship shared jointly with the parents that requires balancing the child’s best interests and the parents’ right to make decisions about their children.