In the Matter of M.M., L.M., O.M., L.M., J.M., P.M., N.M., and J.M., Children. DEPARTMENT OF HUMAN SERVICES, Respondent on Review,
S.M. and R.M., Petitioners on Review
Argued and Submitted November 5, 2013 at Franklin
High School, Portland, Oregon.
On review from the Court of Appeals, CC J110590,
J110591, J110592, J110593, J110594, J110595, J110596, J011597; CA A151376
Kimberlee Petrie Volm, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioners on review. With her on the brief were Peter Gartlan, Chief Defender, and Sarah Peterson, Deputy Public Defender.
Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.[**]
[355 Or. 243] KISTLER, J.
The juvenile court took jurisdiction over parents' children and appointed the Department of Human Services (DHS) as the children's legal custodian and guardian while the children were wards of the court. The question that this case presents is whether the legislature gave DHS, in its capacity as either the children's custodian or their guardian, authority to have the children immunized against common childhood diseases. Both the trial court and the Court of Appeals held that the legislature gave DHS that authority. See Dept. of Human Services v. S.M., 256 Or.App. 15, 300 P.3d 1254 (2013). We allowed parents' petition for review and now affirm the Court of Appeals decision and the trial court's judgments.
Mother and father are the parents of eight children, who ranged in age from one to 10 years old when this case began. After a neighbor notified DHS about the conditions in parents' home, a DHS caseworker checked on those conditions, spoke with parents, and also spoke with the children. Among other problems, the caseworker found the house bestrewn with garbage and food, the children dirty, and the children's educational needs barely addressed by mother's home-schooling curriculum. DHS filed a petition with the juvenile court, alleging that the children were within the court's jurisdiction because the " condition or circumstances [of the children were] such as to endanger [the children's] welfare or others[' welfare]." ORS 419B.100(1)(c). In particular, DHS alleged that father had acted violently towards mother, that mother and father had failed to provide the children with adequate shelter and necessities, and that mother and father had failed to attend to the children's educational needs. DHS also alleged that mother and father had failed to attend to the children's ordinary hygiene and healthcare needs. The court issued a shelter order placing the children in the temporary care of DHS and recommending that the children remain in parents' custody.
Over the next several weeks, DHS worked with mother to improve the family's living conditions. By then, father had moved to Utah for work. Despite some improvement in the family's living conditions, the court ordered that [355 Or. 244] the children be placed in foster care, and, in January 2012, parents and DHS reached an agreement. As part of that agreement, parents admitted all the allegations in DHS's jurisdictional petition, except the allegations of medical neglect. They also stipulated that the admitted facts supported a finding that the juvenile court had jurisdiction over the children. Accordingly, the juvenile court took jurisdiction over the children and issued a dispositional judgment for each child. It also appointed DHS as each child's legal custodian and legal guardian.
Four months later, DHS requested a review hearing. During a discussion of the
children's status, the children's attorney and DHS notified the court that the children needed to be immunized against common childhood diseases both for their own safety and also for the safety of other children at their school. Parents objected, in part, because the juvenile court had never determined that they were unfit to make medical decisions for the children. Mother also raised religious objections. Asked to explain those objections in more detail, she told the court, " [P]art of [her] beliefs in regards to [immunization] is (inaudible) and there is a stem cell line that the actual product isn't (inaudible) but it is based on [an] inadvertent [ sic ] fetus from 1970 and stem cells were reproduced over and over and over again. (Inaudible)."
The juvenile court commended mother's interest in medical research about immunizations: " You've done your research and I appreciate that." It also noted that mother had made medical decisions about her children in the past, including a decision to immunize some of the older children. But the court ultimately concluded that, because " the children are in the care and custody of the [s]tate at this point," it would allow " the children [to] be immunized as per the ...