Can Parents Keep Their Kids Unvaccinated Even After They Lose Custody?

Can the state government’s social services agency vaccinate a child it has temporarily taken custody of even if it’s against the religious beliefs of the parents?The Massachusetts Supreme Judicial Court is considering that question, after hearing oral arguments in a case recently..At issue is an infant girl the Massachusetts Department of Children and Families took about a year ago and has administered vaccinations to, over the objections of her parents.Kylah Clay, a lawyer who represents the mother, told the court that it’s clear from case law that “parents have a constitutional right to determine and direct their child's religious upbringing” and that “this constitutional right is not taken away when the state obtains temporary custody of their child.”But a lower-court judge used “best interests of the child” as the standard in considering whether to allow the little girl to be vaccinated, and determined that it was in her best interests – over and above the right of her parents to raise her according to their religious briefs.“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.” Clay said during oral arguments February 7.In 1982, the U.S. Supreme Court decided that state officials can’t permanently end the rights of parents to their children without what it called “clear and convincing evidence” of neglect, in a New York case called Santosky v. Kramer.But for the state to take children away from parents temporarily requires a lower standard: preponderance of the evidence, meaning more likely than not.“… And that is the gap that we are here to address today,” Clay said. “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 decisions of ordinary medical care? Right now, we don't have guidance on this issue.”The reason the state took the child from her parents did not come up during oral arguments.Also unclear from oral arguments is the religion of the parents. The case is impounded, which restricts public access to the names of the parents and the child and to briefs from the lawyers.But Jeanne Kaiser, a lawyer appointed by the court to represent the 13-month-old girl, told the justices during oral arguments that the parents object to vaccines because they “do not believe in putting foreign substances into the child's body.”Kaiser argued that when parents lose custody over their children even temporarily their rights concerning the children necessarily “are very attenuated,” meaning those rights have rightly been reduced in force or effect.“I want to speak to the issue of what exactly are the parents' rights in this case. So the parents have -- any parent starts with … a 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,” Kaiser said.Kaiser said that under a previous Massachusetts court case parents who have lost custody of their children have “certain residual rights to determine the child’s religious affiliation,” but that parents don’t have the right to force the state to follow all of the religious practices the parents might want for their child.A lawyer for the Massachusetts Department of Children and Families, Kristin Stone Braithwaite, said a balancing test using the best interests of the child as the standard is best in cases like this one, not the strict scrutiny standard the U.S. Supreme Court requires in cases of fundamental rights such as the free exercise of religion. She said a balancing test “allows a judge to take into account everything, all the factors,” including the parents’ religious objections.Yet Justice Scott Kafker said the assertion in this case of a fundamental right protected by the federal constitution – free exercise of religion – complicates the argument that courts should use the best-interests-of-the-child standard.“But it doesn't give this constitutional right any special status, or does it? Because 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?” Kafker said.Braithwaite responded that the state’s temporary custody of the child means the parents have at least temporarily lost some of their rights to raise the child according to their religious practices.“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 parent's care, and that removal of the child is necessary to protect him or her from serious abuse or neglect,” Braithwaite said.Justice Kafker noted that the state hasn’t had three older children of the family vaccinated even though the state’s social-services agency has also taken those children from their parents.“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, because 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,” Kafker said.The case is called In the Matter of an Impounded Case (docket number SJC-13672). The Massachusetts Supreme Judicial Court heard oral arguments in the case on Friday, February 7, 2025. It’s not clear when the court will decide the case, though the court aims to issue written decisions within 130 days of oral arguments, which in this case would be mid-June 2025.

Can Parents Keep Their Kids Unvaccinated Even After They Lose Custody?

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