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Supreme Court Overrides Statutory Parental Rights

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-- August 25, 2015
What happens when a parent’s statutory right to make decisions comes against a court order to the contrary? If the child is in the custody of the state of Maine, the answer is very much up to the judge.
That’s the take away from the decision In Re: Z.S. handed down by the Maine Supreme Judicial Court last week.
According to Maine law, parents have a statutory right to opt their child out of the state’s general vaccination requirement based on a sincerely held religious belief or other philosophical exemption. The mother of Z.S. had chosen to exercise that right based on her beliefs regarding vaccines and disease.
At issue in the appeal from a lower court was whether the lower court judge could override this statutory right (a right reserved explicitly by state statute) without first terminating the mother’s parental rights.Ordinarily, termination of rights requires the high “clear and convincing evidence” standard, while a custody ruling requires only a “preponderance of the evidence” standard.
In this case, the mother was found to be negligent based on accusations not related to vaccines. The “preponderance” standard was met and the child was held in state custody. But in his custody ruling the judge also called for the Child Welfare department to override the mother’s statutory right to opt out of vaccination while the child was in custody. The mother appealed this violation of her statutory right.

In his dissent, Supreme Court Justice Jabar pointed out the nature of this injustice. “[T]he Department’s decision to vaccinate Z.S. is a final decision,” he wrote, “that forever precludes the mother from exercising her statutory right to opt out….” He further points out that “In ordering the Department to vaccinate Z.S. over the mother’s objections, the court effectively terminated this statutory parental right without any hearing or any decision arrived at by clear and convincing evidence,” the higher standard required to terminate such a right.
Sadly for this family, and for any family in Maine whose child may end up in state custody, the other 4 members of the Supreme Judicial Court did not share Jabar’s concerns.
The majority opinion held that the court order could not be appealed unless the appeal has to do specifically with the custody decision. The details added to the order by the judge are not reviewable. Such is their interpretation of 22 M.R.S. § 4037 (2014), which gives the Department “full custody of the child subject to the terms of the order and other applicable law.” (Emphasis added in Supreme Judicial Court’s citation.)
This refusal to require that the “terms of the order” recognize and adhere to parental rights established in statutory law provides a dire warning to any parent in Maine: If the state takes your child, the judge has very broad discretion to place in any custody decision that goes against you orders beyond the scope of the original case.
It also provides one more reason that the fundamental rights of parents should appear explicitly in the text of the Constitution and not merely in the laws of the state. While we support and encourage state parental rights statutes, those alone may not be enough to halt the erosion of parental rights in the courts.
So thank you for standing with us to support this vital Amendment effort!
Michael Ramey
Director of Communications & Research
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