M.A. v. A.A.
| Decision Date | 30 June 2021 |
| Docket Number | A-1493-20 |
| Parties | M.A., Plaintiff-Respondent, v. A.A., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 24, 2021
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No FM-01-0537-18.
Phyllis Widman argued the cause for appellant.
Steven P. Scheffler argued the cause for respondent (Reynolds & Scheffler, LLC, attorneys; Kendyll G. Clayton, on the brief).
Before Judges Messano, Hoffman, and Suter.
Defendant A.A. appeals a January 21, 2021 Family Part order entered following a bench trial that appointed plaintiff M.A. as the limited medical guardian of vaccinations for their daughter. We affirm the order, finding substantial credible evidence in the record to support it.
Plaintiff and defendant were married in 2005. They have one child - A.A. (Adele)[1] who was born in July 2013. The parties divorced in February 2018. As part of their divorce, they entered into a Marital Settlement Agreement (MSA).
Under the MSA, the parties share joint legal and physical custody of Adele. Paragraph 5.1 of the MSA provides:
5.1. It is the parties' intention to share joint physical and legal custody of their daughter, [Adele], without the designation of a parent of primary residence. The parties considered their ability to communicate and share all the needs of [Adele], and further agree that their daughter's best interest is paramount. . . . [T]he parties shall immediately notify the other in the event of an emergency situation involving [Adele] and agree to provide the other with emergency telephone numbers.
[(emphasis added).]
Under paragraph 5.2, plaintiff and defendant both agree they "shall conduct themselves in a manner that shall be best for the interest, welfare, and happiness of [Adele]." The MSA did not address the procedure for resolving disputes between plaintiff and defendant in the event of a disagreement about how to address a medical emergency involving Adele. It did not mention either parent's religious beliefs or how those might relate to Adele.
The MSA also did not mention vaccinations for Adele. This was even though on June 26, 2015 - before they were separated in September 2015 - they submitted a letter to Adele's preschool that claimed a religious exemption from vaccination requirements. This letter provided:
To Whom It May Concern:
The letter quoted from the Bible. It noted that their objection "is based on our lifelong deeply-held spiritual beliefs based on scripture." The letter said that vaccination of Adele "violates laws put forth within us by a higher force . . . ." The letter concluded with:
Our personal religious beliefs include our obedience to God's law, the Holy Bible, and we believe that we are responsible before God for the life and safety of our child, created by God.
After their divorce, they provided a letter to their local Board of Education on August 3, 2018, that again requested a religious exemption for Adele to attend kindergarten without the State law required vaccinations. It contained much of the same language as the earlier letter.
Plaintiff testified that on April 11, 2019, Adele stepped on a rusty nail that punctured her foot. He took her to the hospital where she received a diphtheria, tetanus, and pertussis (DTaP) vaccination. Plaintiff testified he advised defendant that Adele received these vaccinations. Adele did not have an adverse reaction.
A few weeks later, defendant and Adele were scheduled to go to Bulgaria. Plaintiff opposed this because Adele did not have all her vaccinations. On May 10, 2019, plaintiff filed an order to show cause and verified complaint in the Family Part seeking to enjoin defendant from taking Adele out of the country. Defendant objected because she previously vacationed with Adele in Bulgaria even though she was not vaccinated. On May 16, 2019, the Family Part judge denied plaintiff's OTSC and allowed defendant and Adele to go to Bulgaria because she previously travelled there without vaccinations.
After Adele returned, plaintiff took her for follow-up vaccinations. On May 29, 2019, she received a second tetanus shot and the "MMR" vaccine for measles, mumps, and rubella. Plaintiff authorized these shots without the knowledge or consent of defendant. Adele developed a rash in an area on her back sometime between one to four weeks later. Her pediatrician, Dr. Edwin Lopez-Bernard, examined the rash on June 26, 2019, and diagnosed it as contact dermatitis from something Adele had touched.
The day earlier - June 25, 2019 - defendant filed a motion in the Family Part seeking sole custody of Adele and to enjoin plaintiff from having any more vaccinations administered to Adele. Defendant claimed she and plaintiff agreed not to vaccinate Adele and that they submitted a "religious exemption" from vaccination for her attendance at school. She alleged plaintiff "deceptively went behind [her] back" to have Adele vaccinated.
Plaintiff filed a cross-motion requesting sole legal authority to make medical decisions for Adele, including decisions about vaccinations. In the alternative, plaintiff requested a plenary hearing. In plaintiff's supporting certification, he alleged vaccinations were needed to keep Adele "safe and healthy" for school. Plaintiff wanted age-appropriate vaccinations. Plaintiff alleged defendant was against all vaccinations based on "conspiracy theories" and not because of any religious objection; in fact, he alleged defendant was an atheist. On August 30, 2019, plaintiff consented to refrain from further vaccination pending further court order.
The trial court conducted a three-day plenary hearing in August 2020. We summarize the trial evidence only as necessary to address the points raised on appeal.
Dr. Arthur Edward Brawer testified for defendant as an expert in rheumatology and immunology. He reviewed Adele's records from the Children's Hospital of Philadelphia (CHOP) when she was admitted in 2017. He met with defendant and discussed Adele's growth and development. Dr. Brawer testified Adele had a "diathesis or a tendency to autoimmune problems." He also examined Adele.
Dr. Brawer testified that in April 2019, Adele received the DTaP vaccination and later the MMR vaccine. In June 2019, she received another DTaP and MMR vaccine. She developed what he said was a diffuse skin rash on her trunk and extremities. From photographs of the rash, Dr. Brawer diagnosed this as a "systemic allergic reaction" to the vaccines given in June.
He testified this could happen because Adele already had ITP and a skin rash. Dr. Brawer opined it was "mandatory to minimize the risk benefit ratio in this patient and to minimize the risk." He concluded Adele is at "high risk for a li[fe]-threatening disorder if she's vaccinated." He expressed that it would be better to let "her go her merry way and just get a viral infection of any kind, mumps, measles, whatever."
Dr. Brawer testified that for the vast majority of people, contracting "natural viral infections" does not "pose any risk . . . ." He also testified vaccines "prevent a whole host of infectious diseases, which has been a great achievement in medicine to have this type of protection from dreaded diseases that previously could have been fatal or could have reaped significant morbidity on people." Dr. Brawer offered that it is
Dr. Brawer testified that his opinions were based on his knowledge, experience, research, examination of the child, review of CHOP records and a discussion with defendant. He did not speak with plaintiff or with Dr. Lopez-Bernard. He did not review any of Dr. Lopez-Bernard's records. Defendant told him about the results of blood tests taken after Adele had ITP, but he did not review them. He determined - based solely on photographs - that the rash was a systemic reaction and not prickly heat. He did not order any follow-up laboratory tests.
Dr. Lopez-Bernard testified that he has been Adele's pediatrician since 2017. He testified as an expert in pediatrics and in vaccines, but the court limited the scope of his testimony to his medical practice, his training and experience, and the manner in which he administers vaccines.
Dr Lopez-Bernard testified vaccines are ...
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