[1994/oagheade.htm]

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