Could a Kentucky court consider a family's religious beliefs before ordering medical treatment for a child?

Plain-English summary

In 1994, Kentucky's Attorney General concluded that a statute allowing a court to consider a child's and family's religious beliefs when deciding on necessary medical treatment did not give those children a lower level of protection. The provision used permissive language: the court could consider the beliefs or decline to do so. The AG did not read it as imposing a separate standard for the court's medical-treatment decision.

The opinion also recalled OAG 93-84. That earlier opinion said a child who did not receive necessary medical care because of a parent's religious beliefs could still be considered abused or neglected, and that reporting and investigation duties still applied in such cases.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Courts deciding treatment questions

The AG read KRS 610.310(2) as leaving the court discretion over whether to take the child's and parents' or guardian's religious beliefs into account. It concluded that this discretion did not deny equal protection to one group of children. The quoted statute also required a hearing on the necessity of treatment and reasonable notice to the child's parents, guardian, or custodian, with emergency circumstances taken into account.

Child welfare officials

The AG cited OAG 93-84 in support of its conclusion. As the office described that earlier opinion, a child denied necessary medical care because of a parent's religious beliefs could be considered abused or neglected. The office said the reporting and investigation requirements applied even where the statutory religious exemption was involved.

Families

The opinion did not say a family's religious beliefs controlled the medical-treatment order. Its reading was that the court could consider those beliefs or refuse to consider them when it made the order.

Common questions

Did the statute require a court to weigh a family's religion?

No. The AG said the statute permitted the court to consider those beliefs, but did not require it to do so.

Did that discretion lower the protection given to children in religious families?

The AG concluded it did not. It said the statute did not set a separate standard that the court had to apply and did not deny equal protection to that group of children.

Did a parent's religious reason for withholding medical care end abuse or neglect reporting duties?

No, according to the earlier OAG 93-84 as recounted in this opinion. The AG said the reporting and investigation requirements remained mandatory in cases involving that religious exemption.

Background and statutory framework

The Cabinet for Human Resources asked about a federal agency's concern that KRS 610.310(2) might establish a "lesser standard" for some children. The AG noted that the federal provisions mentioned by the agency did not define or use that phrase. It answered by reading the Kentucky provision's permissive language and then relating it to the office's prior analysis of the religious exemption in KRS 600.020(1).

Citations and references

• KRS 610.310(2): the court's authority to order necessary treatment and consider family religious beliefs.
• KRS 600.020(1): the religious exemption discussed through OAG 93-84.
• KRS 620.030(1): the reporting requirement the AG said still applied.
• KRS 620.050(3): the investigation requirement the AG said still applied.
• OAG 93-84: the earlier opinion on care withheld for religious reasons.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-034.htm

Original opinion text

OAG 94-34

May 17, 1994

Hon. Angela M. Ford

Commissioner, Department of Law

Cabinet for Human Resources

275 East Main Street

Frankfort, Kentucky 40621

Dear Ms. Ford:

As Commissioner of the Department of Law at the Cabinet for Human Resources, you have asked the Attorney General for an interpretation of KRS 610.310(2). This statute provides that a court may consider the religious beliefs of a child and his parents or guardian when it orders or considers necessary medical treatment for the child. The United States Department of Health and Human Services (DHHS) questions whether KRS 610.310(2) establishes a lesser standard of protection for one group of children.

You have requested a formal opinion from our office as to whether or not the language in KRS 610.310(2) establishes a lesser standard of protection for one group of children.

KRS 610.310(2) provides:

The court may order or consent to necessary medical treatment, including surgical procedures, except for the purpose of abortion, electroshock therapy or psychosurgery as provided in KRS Chapter 645, or sterilization, after a hearing conducted to determine the necessity of such treatment or procedure. In making the order, the court may take into consideration the religious beliefs and practices of the child and his parents or guardian.

Reasonable notice, taking into account any emergency circumstances, shall be provided to the parents, guardian or person exercising custodial control or supervision of the child to enable them to attend the hearing.

KRS 610.310(2)(emphasis added).

The Department of Health and Human Services questions whether KRS 610.310(2) imposes a lesser standard of protection for one group of children. The federal agency's use of the phrase "lesser standard" is merely its characterization as to the impact the questioned language in KRS 610.310(2) will have on children. The applicable provisions of the Child Abuse Prevention and Treatment Act and the accompanying federal regulations neither define nor use the phrase "lesser standard."

It is the opinion of the Attorney General that KRS 610.310(2) does not set forth a lesser standard of protection for one group of children. This statute does not provide a court with any standard which it must follow. Rather, KRS 610.310(2) contains permissive language that allows a court to consider or refuse to consider the religious beliefs and practices of the child and his parents or guardian when the court enters an order regarding medical treatment for the child. We cannot conclude that this statute granting a court discretion to consider the family's religious beliefs results in a denial of equal protection of one group of children.

In OAG 93-84 the Office of the Attorney General addressed similar issues. In OAG 93-84 we were asked:

Accordingly, the Cabinet for Human Resources requests a formal opinion from the Office of the Attorney General as to whether or not the language in KRS 600.020(1) identified by ACF as problematic exempts children who do not receive necessary medical care due to their parents' religious beliefs from the mandatory reporting requirements of KRS 620.030 and the provisions of KRS 620.050(3) which require the Cabinet to initiate a prompt investigation of such reports and offer protective services toward safeguarding the welfare of the child.

The Attorney General opined in response to this question that a child who does not receive necessary medical care due to his parents' religious belief may be considered an abused or neglected child. KRS 600.020(1). We noted that the purpose behind the dependent, neglect and abuse act is to protect the physical and mental well-being of the child. Therefore, the reporting requirements of KRS 620.030(1) and the investigation requirements of KRS 620.050(3) are mandatory and must be followed in cases involving the religious exemption contained in KRS 600.020(1). OAG 93-84.

In conclusion, it is the opinion of this office that the language in KRS 610.310(2) which permits a court to consider the religious beliefs of a child and his parents or guardian prior to ordering medical treatment for the child does not provide a lesser standard of protection for one group of children.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General