In re C.C.

• Decision Date: 23 August 2022
• Docket Number: S22A0584
• Citation: 314 Ga. 446,877 S.E.2d 555
• Parties: In the INTEREST OF C.C. et al., children.
• Court: Georgia Supreme Court

314 Ga. 446

877 S.E.2d 555

In the INTEREST OF C.C. et al., children.

S22A0584

Supreme Court of Georgia.

Decided: August 23, 2022

David Buell Hume, Hume, Jaacks & Associates, LLC, 102 Buford Dam Road, Suite A, Cumming, Georgia 30040, for John Chandler.

Brittani Chandler, 5155 Parks Road, Cumming, Georgia 30041, pro se.

Melissa D. Carter, Emory University School of Law, Barton Child Law and Policy Center, 1301 Clifton Road, Atlanta, Georgia 30322, Edward Albert Bedard, Joshua Barrett Belinfante, Robbins Ross Alloy Belinfante Littlefield, LLC, 500 14th Street NW, Atlanta, Georgia 30318, for Neutral Amicus.

Rochelle Ann Doyle, 885 Woodstock Road, Suite 430-342, Roswell, Georgia 30075, Kris-Ann Poe, 231 Chatuge Way, Hiawassee, Georgia 30546-0662, Ross Warren Bergethon, Deputy Solicitor-General, Shalen S. Nelson, Senior Assistant Attorney General, Bryan Keith Webb, Deputy Attorney General, Emily Allen Harris, Assistant Attorney General, Christopher M. Carr, Attorney General, Hannah Basta, Assistant Attorney General, Stephen John Petrany, Solicitor-General, Department of Law, 40 Capitol Square, SW, Atlanta, Georgia 30334, for Appellee.

Mathew K. Titus, Titus Law LLC, 5755 North Point Parkway, Suite 88, Alpharetta, Georgia 30022, Victoria Cuneo Powell, JONES DAY, 1221 Peachtree Street, N.E., Atlanta, Georgia 30361, Kurtis George Anderson, Kilpatrick Townsend & Stockton LLP, 1100 Peachtree Street NE, Suite 2800, Atlanta, Georgia 30309-4528, for Other Party.

Peterson, Presiding Justice.

The Division of Family and Children Services (DFCS) is the temporary custodian of Appellants John and Brittani Chandler's three children. The Chandlers seek a determination that they have constitutional and statutory rights to object on religious grounds to DFCS's immunization of their children. Because the juvenile court applied the wrong standard in finding that the Chandlers’ religious objection was insincere, we vacate the trial court's order and remand this case for application of the correct standard.¹

The Lumpkin County Juvenile Court temporarily removed the Chandlers’ children into DFCS's custody on January 6, 2021. The Chandlers consented to an adjudication that the children were dependent within the meaning of OCGA § 15-11-2 (22),² and that it was contrary to the welfare of the children to be returned to a home of a parent at that time. According to a Lumpkin County court order, Brittani objected to the children being vaccinated; the Lumpkin County court ordered that no vaccinations

be given without judicial approval.³ The Lumpkin County court later issued an order of disposition incorporating a reunification plan. The case was then transferred to the Forsyth County Juvenile Court ("the juvenile court").

At a regularly scheduled review hearing for the dependency case, Brittani's counsel orally moved on religious grounds to block DFCS from obtaining routine vaccinations

for the children. Her position was stated in very broad terms; her counsel stated simply that Brittani "believe[d] that she ha[d] a religious belief that bar[red] her from allowing the children to get vaccinated." DFCS related that it sought immunization to facilitate the children's health care, schooling, and foster placement, and asserted the authority to provide "ordinary medical care" to the children under OCGA § 15-11-30.⁴ At the end of the hearing, John interjected that the Chandlers’ eldest child had started saying his first words when he was three months old, but then stopped talking after receiving a vaccine (for how long, John did not specify). John also mentioned having a religious objection to vaccination

, without elaborating. The juvenile court denied Brittani's motion.

John then moved for reconsideration and for a stay of vaccination

. Brittani joined in this motion, and another hearing was held in conjunction with a regularly scheduled hearing on the dependency case. John testified that he did not believe COVID-19 is "real"⁵ and described himself as "a conspiracy theorist." He testified that the family attended church before the COVID-19 pandemic, but was not attending at the time of the hearing because, he said, "Sundays are my little bit of time to spend with my wife because I get home late at night [during the week]. So I don't really have no family time." Construed liberally, John argued that (1) the First Amendment to the United States Constitution forbade vaccinating the children over the Chandlers’ objection, (2) parents retain a statutory right to object on religious grounds to the vaccination of their children under OCGA § 15-11-30, and (3) OCGA § 15-11-30 ’s reference to "ordinary medical care" is void for vagueness as applied to children of parents with religious objections to vaccinations. Brittani's counsel proffered that Brittani "could get on the stand and testify as to the church they attended, and how long they attended it. She could also ... read certain verses from the Bible that she has her own interpretations about the [vaccination

exemption] claim as far as her religious beliefs," without elaborating. Brittani did testify at the hearing, but only about other matters relating to the children's dependency case, not about vaccines or religion.

The juvenile court denied the Chandlers’ motion in a written order on two principal grounds. First, the juvenile court found that the Chandlers’ asserted religious objections were not sincere:

[T]he Court finds that [the Chandlers’] argument that vaccination

of the dependent children by the Department violates their free exercise of religion is specious at best. The Court finds that [the Chandlers] have not established by a preponderance of the evidence that they have a religious objection or even observe a particular religion. Contrary to, the evidence shows that they previously attended church but are no longer active, are against vaccination by personal philosophical choice based at least in part on an alleged perception after the oldest was vaccinated and that [John] is a self-proclaimed conspiracy theorist.

The juvenile court then went on to rule against the Chandlers on the merits. The juvenile court concluded that, even if the Chandlers did have a sincere religious objection, the First Amendment to the United States Constitution would not prohibit DFCS from vaccinating the children. And the juvenile court determined that the Chandlers lacked any rights arising under OCGA § 15-11-30 to object to the vaccinations

and that OCGA § 15-11-30 was not void for vagueness. The Chandlers timely filed an application for interlocutory appeal, which this Court granted under OCGA § 5-6-35 (j) because they were entitled to a direct appeal⁶ of an order denying their motion for injunctive relief in ongoing dependency proceedings. See OCGA § 5-6-34 (a) (4) ; In the Interest of J. P. , 267 Ga. 492, 480 S.E.2d 8 (1997). The Chandlers then timely filed a notice of appeal.

1. This case has not been mooted by voluntary cessation.

After the case was docketed in this Court, on June 6, 2022, Appellee Department of Human Services (DHS) filed a motion to dismiss the appeal as moot based on voluntary cessation. See WMW, Inc. v. Am. Honda Mot. Co. , 291 Ga. 683, 685 (2), 733 S.E.2d 269 (2012) (adopting federal voluntary cessation doctrine as a basis for mootness).⁷ The motion attached as an exhibit a memorandum outlining a new official policy that DFCS shall not "seek immunizations for any child in DFCS’ temporary custody if a noncustodial parent expresses a sincere religious objection to immunization of such child, barring extreme circumstances such as a specific and unusual medical need." DFCS further represented that it no longer seeks to immunize the Chandlers’ children. It requested that we dismiss the appeal as moot and vacate the juvenile court's rulings overruling Brittani's objection to vaccination

and denying John's motion for reconsideration.

Four days later, on June 10, DHS filed a letter with this Court. It said that the Chandlers’ eldest child received some vaccinations

on June 8. It said that this was due to "miscommunication," it had fired that child's case manager, and it was "updating" its new religious-exemption policy "to more clearly explain that foster parents must be made aware of the policy and abide by it."

We deny DHS's motion. An appellee's "voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed." WMW , 291 Ga. at 685 (2), 733 S.E.2d 269 (citation and punctuation omitted). In asserting mootness based on voluntary cessation, a party must bear a "heavy burden" of persuasion. Id. That said, "cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties." Ragsdale v. Turnock , 841 F.2d 1358, 1365 (7th Cir. 1988). "The reason ... is that government actors are more likely than private defendants to honor a professed commitment to changed ways." Keohane v. Fla. Dept. of Corr. Sec. , 952 F.3d 1257, 1267-1268 (11th Cir. 2020) (punctuation and citations omitted). But we give no "bare deference: we probe the record to determine whether the government has met its burden, even as we grant it a presumption of good faith." Brach v. Newsom , 38 F.4th 6, 13 (9th Cir. 2022) (en banc). Weighing against mootness due to voluntary cessation is evidence that a policy change is unilateral such that the government could "reenact[ ] precisely the same provision" immediately after litigation concludes. City of Mesquite v. Aladdin's Castle, Inc. , 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) ; see also True the Vote, Inc. v. IRS , 831 F.3d 551, 561 (D.C. Cir. 2016) ("[T]here is a difference between the controversy having gone away, and simply being in a restive stage."). This can be true even if the government does not indicate that it plans to immediately revive the...