Dorrer-Hildebrand v. Veccia (In re Dorrer-Hildebrand)

• Court: California Court of Appeals
• Writing for the Court: GREENWOOD, P.J.
• Docket Number: H045095
• Decision Date: 28 July 2022
• Citation: Dorrer-Hildebrand v. Veccia (In re Dorrer-Hildebrand), H045095 (Cal. App. Jul 28, 2022)
• Parties: In re the Domestic Partnership of CHRISTINA VON DORRER-HILDEBRAND and ELLEN M. VECCIA. v. ELLEN M. VECCIA, Respondent. CHRISTINA VON DORRER-HILDEBRAND, Appellant,

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In re the Domestic Partnership of CHRISTINA VON DORRER-HILDEBRAND and ELLEN M. VECCIA.

CHRISTINA VON DORRER-HILDEBRAND, Appellant, v. ELLEN M. VECCIA, Respondent.

H045095

California Court of Appeals, Sixth District

July 28, 2022

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. 2012-1-FL-162814)

GREENWOOD, P.J.

Appellant Christina von Dorrer-Hildebrand (Christina) and respondent Ellen M. Veccia (Ellen) share joint legal and physical custody of two children through a stipulated judgment. Christina appeals the trial court's order giving Ellen final decision-making authority over whether to vaccinate either or both children. (Order)

On appeal, Christina contends the trial court erred by modifying legal custody without requiring Ellen to show a significant change in circumstances before granting her request. She further argues Ellen failed to show the modification was in the children's best interests. Finally, she claims the trial court erroneously denied her request for a long-cause hearing to present expert medical testimony on the issue of whether immunization was appropriate for the children. For the reasons set forth below, we conclude Christina has not established prejudicial error occurred. We therefore affirm the Order.

I. Factual and Procedural Background

Christina and Ellen, who entered into a domestic partnership in 2005 have two children, I. (born 2005) and O. (born 2008). In 2013, the couple sought to dissolve the partnership. They entered into a Domestic Partnership Settlement Agreement (DPSA), and the trial court entered a stipulated judgment dissolving the partnership and incorporating the DPSA. Pursuant to the DPSA, Christina and Ellen agreed to share joint legal and physical custody of the children. The DPSA expressly provides that Christina and Ellen would share access to information about the health of the children and would have joint control over, and cooperate regarding, the children's healthcare provider and medical care.

When the children were born, Christina and Ellen agreed they would not vaccinate them. When the couple first enrolled the children in preschool, they chose to file personal belief exemptions that permitted the children to attend school without the immunizations otherwise required by law at that time.^[1] The children remained unimmunized until the couple separated. After the separation, however, Ellen asked that the children be vaccinated against tetanus. Then during the measles epidemic in 2015, Ellen decided she wanted the children to receive every vaccine for which they were eligible.

After the 2015 measles outbreak, California passed Senate Bill No. 277. (Health & Saf. Code, § 120325 et seq.) This bill eliminated the personal belief exemption that Christina and Ellen had relied on, and mandated that children be immunized to attend school in California, unless the child had a medical exemption.^[2] As a result, the children's pediatrician, Dr. Vukicevic, stopped seeing patients who were not fully vaccinated, causing the children to lose access to their doctor.

By this time, I. was preparing to enter seventh grade in middle school and O. was entering the fourth grade at the private school both children had been attending. I. either needed to be vaccinated or needed a medical exemption to enroll, so Ellen sought to revisit the vaccination issue.^[3] Ellen expressed concern that the children remained unvaccinated, putting them at risk for "unnecessary diseases," including measles. Christina continued to object to vaccinating the children despite the change in the law and the children's exclusion from their pediatrician's practice.

Without consulting with Ellen, Christina worked with a medical researcher in Israel, Yehuda Shoenfeld, to genetically test the children using a home administered test. Christina hoped the genetic testing would determine whether the children had any of the genetic mutations that Dr. Shoenfeld was working on related to vaccines. With the results of the test and several articles, Christina first sought a medical exemption for the children from Dr. Vukicevic. The pediatrician referred the results to the genetics department at Stanford University Medical Center, which opined that there was no basis to believe vaccines would cause the children any medical problems. Christina rejected these conclusions because she did not believe either Dr. Vukicevic or Stanford were "up-to-date on the latest research" regarding vaccinations. Based on her own medical research, she did not agree with any physician who recommended vaccinations, except the experts with whom she had consulted.

When Dr. Vukicevic refused to provide a medical exemption, Christina, without Ellen's knowledge or consent, obtained medical exemptions for both children from a doctor who had neither examined the children nor treated them, doctor John Hicks, M.D. In his brief exemption letters, Dr. Hicks stated that the children have a family history of and genetic predisposition for autoimmune disease. He concluded that the state of their immune systems was such that any vaccination could trigger the start of autoimmune disease, and he recommended that neither child receive vaccines. The letters did not set forth the basis for any of these conclusions, nor did the letters state that he had examined either child or reviewed any of their medical history. Christina then submitted the medical exemptions to the children's school, again without Ellen's knowledge or consent.

After Ellen discovered the actions Christina had taken, and the two remained at an impasse despite private mediation, Ellen sought an order modifying legal custody to grant her medical decision-making power, including the "ability to vaccinate the children." Ellen asked that the court allow her "the exclusive ability to follow the course of treatment recommended by the children's doctors without Christina having the ability to block or delay [Ellen's] decisions." Ellen represented that she would "agree to keep Christina informed, post hoc, of every appointment and every procedure," and to "consider [Christina's] position regarding any necessary vaccinations or procedures. . . ." Ellen stated she would rely on their pediatricians' recommendations for the treatment of the children, rather than "try to backdoor the issue," by going to a doctor and/or obtaining treatment that was not agreed upon by the parties, as Christina had done.

Christina opposed Ellen's request, arguing that Ellen was seeking to modify legal custody, and thus needed to show a significant change of circumstances, but had not done so. Christina acknowledged her opposition to vaccinating the children but argued that it was well founded based on her own research and on the recommendation of Dr. Hicks, who agreed that the children should not be vaccinated because of the risk of provoking an auto-immune disease. She asked the court to hold a "long-cause" hearing so she could present the testimony of expert medical witnesses, as well as "her own expertise" regarding the risks associated with vaccinating the children. She did not provide a list of proposed witnesses or identify any expert witnesses.

The court denied Christina's request to present expert testimony. The court stated that it would not be deciding whether to vaccinate the children; rather, it would decide which parent would have the authority to make that decision if the parents could not reach an agreement. The court confirmed it "full[y] inten[ded] to retain a joint legal and joint physical custody as between the parties." The parties would have a "continuing obligation . . . to meaningfully meet and confer over medical decisions involving the minor children . . . ." The court stated it would only decide who would be the "tie breaker" in the event the parents reached an impasse.

The court held a hearing where Ellen and Christina presented evidence. Ellen testified, through an offer of proof by her attorney, that the declaration she submitted in support of her request for orders was true and correct. Christina testified through an offer of proof and on the witness stand regarding her position on vaccinating the children. The court examined her regarding her purported expertise on the subject of vaccination.

After ordering the parties to meet and confer about a process going forward, the trial court issued its final order. The court found that Christina had "subverted the letter and spirit of the parties' DPSA and the grant of joint legal custody" by obtaining genetic testing of the children, by using the genetic tests to obtain a medical exemption for the children from a physician of "unknown credentials who neither examined the children nor reviewed their medical histories," and by submitting the medical exemptions to the children's school without Ellen's knowledge or consent.

In addition, the court found that Christina demonstrated "inflexibility on the issue of decision-making regarding the children's medical care" by "categorically dismissing" Dr. Vukicevic and any other medical providers who disagreed with the vaccination position espoused by Dr. Shoenfeld, by stating her intention to reject any future medical opinion in favor of vaccinations unless provided by Dr. Shoenfeld, Dr. Hicks, or someone whose opinion was comparable to those two doctors,^[4] and by justifying her unwillingness to consider Dr. Vukicevic's opinions and Ellen's position on the grounds that she is a medical and market researcher with experience based on "self-directed lay reading of medical literature . . . ."

The trial court further found Ellen had "demonstrated her willingness to co-parent, not least by accommodating for several years [Christina's] steadfast opposition to vaccination until the measles...