Justices send back case on immunizing child in state care

LITTLE ROCK — In a 4-3 ruling, the Arkansas Supreme Court on Thursday overturned a circuit judge’s denial of a mother’s request to stop the state Department of Human Services from immunizing her daughter, who was in foster care.

The state’s divided high court sent the case back to Pulaski County Circuit Judge Patricia James for further proceedings consistent with the court’s ruling.

Alexius Macklin appealed an order of the Pulaski County Circuit Court regarding her 1-year-old daughter, M.S., who was neglected, according to the Arkansas Supreme Court. Macklin didn’t challenge the adjudication itself, but challenged the circuit court’s denial of her motion to bar the department from immunizing M.S. over her objection.

In her appeal, Macklin argued the Department of Human Services, as the temporary custodian of a child, doesn’t have the authority to immunize the child over the religious or philosophical objections of the parent.

At the Sept, 21, 2020, adjudication hearing, Dr. Karen Farst, a pediatrician employed by Arkansas Children’s Hospital, testified as an expert witness for the department. She was called to testify regarding M.S.’s admission to the hospital and the circumstances forming the basis for the child’s removal from Macklin’s custody.

But the issue of the child’s immunization arose. Farst, the child’s attending physician, asked the Department of Human Services for permission to immunize, but permission was denied. The department was aware Macklin had a philosophical/ religious objection to immunization and didn’t provide consent.

Farst testified she believed immunizations were in the “best interest” of a child and protection from common and infectious diseases is what dictated “best interest.”

Nonetheless, she acknowledged Arkansas allows for both philosophical and religious exemptions and she had seen the exercise of those exemptions in her practice.

Latrinia Joyner, supervisor for the state Division of Child and Family Services’ Pulaski County South office, testified she was aware her superiors at the Department of Human Services intended to immunize M.S. if an

upcoming evaluation — a comprehensive medical assessment provided to all children in the state’s custody — recommended it.

The assessment was to be done by the Project for Adolescent and Child Evaluation. The group contracts with the University of Arkansas for Medical Sciences for every child to have the assessment within 60 days of removal from the home, said Department of Human Services spokeswoman Amy Webb.

The circuit judge declined to rule the Department of Human Services is prohibited from immunizing the child but found the department can make medical decisions in the best interest of the child as the department is the legal custodian of the juvenile.

In an opinion authored by Justice Barbara Webb, the state Supreme Court said, “We are mindful that the General Assembly has promoted the widespread vaccination of children in this state and has made receiving age-appropriate immunizations a condition for admittance to licensed day care centers, public or private schools.

“However, in enacting this wide-reaching immunization mandate, the General Assembly has also provided for exemptions from immunization if ‘ the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with religious or philosophical beliefs of the parent or guardian.’”

The court said the Legislature has recognized the state’s interest in promoting the health and safety of its children must yield to the rights of parents to make fundamental decisions in the lives of their offspring.

Macklin exercised her right to exempt her daughter from immunization, as was her right as a parent, according to the court.

“It is the role of the General Assembly, not the courts, to establish public policy,” the court said. “We therefore reverse and remand this case for further proceedings consistent with this opinion.”

Chief Justice Dan Kemp and Justices Robin Wynne and Shawn Womack agreed with Webb’s majority opinion.

Justices Karen Baker, Courtney Hudson and Rhonda Wood dissented.

In her dissenting opinion, Wood wrote the Supreme Court applies the law and doesn’t make the law.

“Here, the General Assembly placed only three limits on the type of medical care that requires a court order when a child is in foster care: removal of bodily organs; withholding life- saving or life-sustaining treatment; and amputation,” she said. “That’s it. Vaccinations were simply not on the list. That was the only issue for the juvenile court to decide.”

Wood wrote the juvenile court refused to enter a court order to immunize or not to immunize because the Legislature hadn’t assigned it that role.

“It’s not our job either,” she said.

“We cannot take a piece of legislation, decide it’s lousy and rewrite it,” Wood said. “If the statute reflects poor policy, the people of Arkansas, through their elected representatives, must act. I believe the people want us to remain faithful to our judicial role.”

Macklin exercised her right to exempt her daughter from immunization, as was her right as a parent, according to the court.