In a scathing rebuke of the state Department of Children and Families, the Connecticut Supreme Court last week said the agency didn’t make its case for reconsideration of the justices’ decision barring it from vaccinating a child in state custody without parental approval.
Lawyers for the agency said the Supreme Court should take a fresh look at the case because it relied on the wrong statutes in the vaccination dispute.
But the high court, reaffirming its own ruling from August, said DCF didn’t have the constitutional power to vaccinate children in its custody without prior approval of the parents.
As it did two months ago, the high court issued its decision on a 7-0 vote Oct. 23.
The argument that state officials made a statutory error failed to sway any of the justices in the DCF’s motion to reconsider. If anything, it appeared to aggravate Chief Justice Chase Rogers, who wrote a strongly worded concurring opinion that was signed on to by four other justices.
Rogers wrote: “I write separately, however, to emphasize that, if the petitioner’s interpretation of these statutes were correct, I would have grave doubts about their constitutionality as applied in these circumstances.”
In its motion to reconsider, the DCF said it failed to present the correct Connecticut General Statutes when making its original case. The DCF argued it should have asked the court to interpret General Statutes 17a-93 and 17a-98, rather than statute 17a-10. Statutes 17a-93 and 17a-98, the DCF maintained, conferred broader guardianship authority that permitted the agency to vaccinate minors in its custody.
Justice Richard Robinson wrote: “The commissioner candidly acknowledges that she did not advance her arguments concerning the effects of General Statutes 17a-93 and 17a-98 until the filing of this motion for reconsideration. As this argument was not previously advanced to the court, we grant the motion for reconsideration, but deny the relief request.”
Rogers also wrote that state agency’s powers and the rights of parents had to be balanced.
“When the petitioner has only temporary custody over a child and the rights of the parents have not been terminated, the parental rights to make decisions for the child. the child’s interest in continuing good health and the state’s interest in protecting the well-being of the child must be balanced,” Rogers wrote.
The DCF had originally filed a petition alleging the parents of the two children, both under 10 years old, were neglected and sought custody. The parents agreed that the children should be committed to the DCF’s care but objected on religious grounds to have the children vaccinated. The parents’ goal down the road is to be reunited with their children, according to Benjamin Wattenmaker, attorney for the father.
Wattenmaker, a senior associate of Feiner, Wolfson in Hartford, called the high court’s ruling “a victory. It’s a victory because the children are still not vaccinated. The court maintained the status quo and, moreover, the court strongly suggested that there is a constitutional right for the parents of children in temporary custody.”
Wattenmaker continued: “The principal order says you do not get a second bite of the apple. You can’t just get to use brand-new arguments that you did not advance before.”
Jaclyn Severance, a spokeswoman for the Connecticut Attorney General’s Office, which represented the DCF in court, declined to comment on the case Tuesday.