J-S10001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.W., JR., : IN THE SUPERIOR COURT OF
S.W., J.W., AND M.W.,: MINOR : PENNSYLVANIA
CHILDREN :
:
:
APPEAL OF: A.W., SR., FATHER, :
AND T.A., MOTHER :
:
: No. 328 EDA 2017
Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0001428-2016,
CP-51-DP-0001513-2016, CP-51-DP-0001514-2016,
CP-51-DP-0001515-2016, FID# 51-FN-001537-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 12, 2018
A.W., Sr. (“Father”) and T.A. (“Mother”) (collectively, “Parents”) appeal
from the order entered on December 14, 2016, wherein the juvenile court
directed the Philadelphia Department of Human Services (“DHS”) to fully
vaccinate and immunize Parents’ four minor sons: S.W., A.W., Jr., J.W., and
M.W. We affirm.
The juvenile court summarized the relevant factual history of this case
as follows.
On July 9, 2016[,] DHS received a Child Protective Services (CPS)
report alleging that A.W.[, Jr., born August 2010,] was
hospitalized at the Children’s Hospital of Philadelphia (CHOP) and
was diagnosed with a rare form of epilepsy named, “Refractory
Epilepsy.” The family was visiting an unidentified person in Lehigh
County when A.W.[, Jr.] had a seizure and was transported to a
hospital in Lehigh County and [then] transferred to CHOP. Mother
refused medical treatment for A.W.[, Jr.] because she believed
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the anti-seizure medication prescribed to A.W.[, Jr.] was
increasing his seizures. Mother attempted to remove A.W.[, Jr.]
from CHOP. CHOP staff would not allow Mother to remove
A.W.[, Jr.] as it would have endangered A.W.[, Jr.]’s life not to
receive the prescribed medication. The report stated A.W.[, Jr.]
resided in the state of Delaware. The report stated the family had
an open case in Lehigh County Children and Youth Services (CYS).
On July 10, 2016, D[H]S received a supplemental report alleging
that A.W.[, Jr.] was having increased seizure activity. CYS
previously had physical custody of A.W.[, Jr.] and returned
physical custody to Mother on July 5, 2016[,] to make medical
decisions for A.W.[, Jr.]. Mother continued to refuse treatment on
the evening of July 9, 2016[,] as A.W.[, Jr.] suffered increased
seizures. The report further stated that if Mother continued to
refuse medical care for A.W.[, Jr.], he would suffer either
neurological damages or sudden death. The report stated
between the evening of July 9, 2016[,] and the morning of July
10, 2016, A.W.[, Jr.] experienced at least 42 seizures. As a result
of the 42 seizures, A.W.[, Jr.]’s medical status had deteriorated.
A.W.[, Jr.] was moved to the Pediatric Intensive Care Unit (PIC)
and was intubated.
Juvenile Court Opinion, 11/1/17, at 1-2.
On July 10, 2016, DHS obtained an Order of Protective Custody (“OPC”)
for A.W., Jr. Approximately one week later, DHS filed a dependency petition,
and a hearing was held on July 19, 2016. At the hearing, the court discovered
that A.W., Jr., had three other siblings who were in need of medical treatment.
Specifically, it was noted that A.W., Jr.’s, siblings had extensive dental issues.
At the conclusion of the hearing, the juvenile court adjudicated A.W., Jr.,
dependent pursuant to 42 Pa.C.S. § 6302(1) and ordered that DHS investigate
the condition of A.W., Jr.’s, siblings.
DHS immediately obtained protective custody of S.W., J.W., and M.W.,
who were born October 2007, December 2010, and January 2013
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respectively.1 DHS filed a dependency petition on July 29, 2016, and following
a hearing, the juvenile court adjudicated S.W., J.W., and M.W. dependent.
On December 14, 2016, the juvenile court held a permanency review
hearing, wherein it ordered S.W., A.W., Jr., J.W., and M.W. to be fully
vaccinated and immunized to ensure their day-to-day medical needs. Parents
objected to the vaccinations, noting that they preferred their children to be
treated through natural modalities, such as marijuana. That same day, the
juvenile court held a hearing on the matter to allow Parents to state their
opposition to the vaccinations on the record. At the hearing, DHS presented
the testimony of Peaches Mulba, the caseworker assigned to the family, and
Laura Simon, M.D., A.W., Jr.’s, attending physician and an expert in
pediatrics. Parents did not present any testimony; however, counsel
summarized their opposition on the record: “[My] clients believe that the
interference with the immune system is unnatural and it’s not well understood
and not tested for long term safety. And that’s a moral and philosophical
reason not to have an immunization.” N.T., 12/14/16, at 10.
Ms. Mulba testified regarding her conversations with Mother about
vaccinating the children, and specifically, A.W., Jr. She stated, “Mom said that
she wasn’t going to get – they wasn’t going to get vaccination to [A.W., Jr.]
because that is one of the reasons that keeps him in the hospital and this
[way] they can be with him.” N.T., 12/14/16, at 18. On cross-examination,
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1The record appears to contain an error regarding the birthdates of A.W., Jr.
and J.W.
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Ms. Mulba elaborated, “Mom said that the vaccination wasn’t good for the
children. It’s just not good for the immune system[, and] because of that
they wasn’t prone to sign for vaccinations for any of [the children].” Id. at
19.
Dr. Simon testified to her opinion that immunizations are generally
accepted as safe and effective, with minimal risk. N.T., 12/14/16, at 34.
Likewise, Dr. Simon noted that she recommends immunizations to all of her
patients. Id. Dr. Simon expressed concern that there are a large number of
vaccine-preventable diseases that can cause chronic illness, disability or
death. Id. As it relates to A.W., Jr., Dr. Simon explained that because of
A.W., Jr.’s increased risk of disability due to his seizures, she recommended
that A.W., Jr., be fully immunized. Id. at 38, 41. Dr. Simon testified that as
A.W., Jr., approaches school-age, his risk of contracting a vaccine-preventable
disease increases as he attends daycare or school. Id. at 41.
Moreover, Dr. Simon also recommended that S.W., J.W., and M.W. be
fully vaccinated. Like with A.W., Jr., Dr. Simon explained that the other
children, if left unvaccinated, would be at a higher risk of contracting vaccine-
preventable diseases and could suffer from more severe reactions or illnesses
if they were to contract a disease. Id. at 42. Further, Dr. Simon cautioned
the court that if any of A.W., Jr.’s, siblings were to contract a vaccine-
preventable disease, it would put A.W., Jr., at great risk for contracting the
disease himself. Id.
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Finally, during closing argument, the Child Advocate observed that the
children have been getting sick more often since they entered foster care and
began attending school.2 N.T., 12/14/16, at 68. Notably, M.W. was
hospitalized after he contracted the flu and required “multiple interventions”
to stabilize. DHS Exhibit 4. M.W.’s physician at CHOP stated that M.W.’s
“illness and hospitalization may have been prevented had he received the . . .
recommended vaccines.” Id.
At the conclusion of the hearing, the juvenile court delivered its decision
from the bench, ordering that all four children receive updated immunizations
and vaccinations. It entered the written order on the same date. Permanency
Review Order, 12/14/16. Parents timely filed a notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(1)(i).3 The juvenile court issued its opinion pursuant to Pa.R.A.P.
1925(a)(1)(ii).
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2 The children were previously home-schooled.
3 Simultaneously with their notice of appeal, Parents filed an application to
stay the December 14, 2016 order pending the outcome of the appeal. On
January 31, 2017, this Court granted the application on a temporary basis and
ordered DHS to file an answer by February 10, 2017. DHS failed to file a
response, and, on February 13, 2017, this Court issued an order granting the
application for stay. Thereafter, on February 15, 2017, DHS filed an
application for relief, requesting leave to file a response to the application nunc
pro tunc. In addition, DHS filed a motion to vacate the order granting the
stay and to reinstate the temporary stay. We granted DHS’s requests on
March 6, 2017, and the following day, DHS filed its response to the application.
On March 17, 2017, this Court denied Parents’ application for stay, effectively
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Parents present the following issues for our review.
1. Did the [juvenile] court . . . err in [o]rdering as follows: “Court
orders for the child to be fully immunized forthwith. Court
orders for the child to receive all vaccinations forthwith”,
without a proper factual and legal basis being established at
the hearing of this matter . . . ?
2. [Was the juvenile] court [order] . . . contrary to the laws of
the Commonwealth of Pennsylvania and of the United States of
America, and in violation of Constitutions of the Commonwealth
of Pennsylvania and of the United States of America?
3. Did the [juvenile] court . . . err in denying Due Process of Law
to [Father and Mother], as guaranteed by the Constitutions of
the Commonwealth of Pennsylvania and of the United States of
America?
Appellants’ brief at 4.4
We review the juvenile court’s order for an abuse of discretion. In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). As such, we must accept the court’s
findings of fact and credibility determinations if the record supports them, but
we need not accept the court’s inferences or conclusions of law. Id. “When
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lifting the temporary stay. The certified record does not reveal whether DHS
proceeded with the vaccinations once the temporary stay was lifted.
4 The procedural posture of this appeal begs the question whether the issues
pending before us are moot in that, once the children have received their
immunizations, our decision in this appeal would lack legal force or effect.
Nevertheless, mindful of the time constraints involved with reviewing issues
regarding medical treatment, we believe that the question presented in this
case is capable of repetition and apt to elude appellate review. Hence, to the
extent that the matter may technically be moot, we address it as an exception
to the mootness doctrine. See Ferko–Fox v. Fox, 68 A.3d 917, 920
(Pa.Super. 2013) (three recognized exceptions to mootness “1) the case
involves a question of great public importance, 2) the question presented is
capable of repetition and apt to elude appellate review, or 3) a party to the
controversy will suffer some detriment due to the decision of the trial court.”).
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the trial court’s findings are supported by competent evidence of record, we
will affirm, ‘even if the record could also support an opposite result.’” In
Interest of R.W., 169 A.3d 129, 134 (Pa.Super. 2017) (quoting In re
R.M.G., 997 A.2d 339, 345 (Pa.Super. 2010), appeal denied, 12 A.3d 372
(Pa. 2010)).
Parents argue that the juvenile court erred by authorizing DHS to
vaccinate and immunize their children in opposition to their moral beliefs.
Parents’ brief at 11. They contend that the court’s decision violated their
constitutional rights to withhold immunizations based upon religious or moral
grounds. Id. at 18-21. Parents also baldly assert that the juvenile court
violated their right to due process by denying them an adequate and
meaningful hearing. Id. at 15, 21-23. Neither position is persuasive.
Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.
§§ 6301–6375. The health, safety and welfare of a child involved in juvenile
court proceedings are among the foremost considerations contemplated by
the Juvenile Act. See 42 Pa.C.S. § 6301(b)(1.1) (identifying one of the
purposes of the Juvenile Act is “[t]o provide for the care, protection, safety
and wholesome mental and physical development of children coming within
the provisions of this chapter”). Accordingly, the Juvenile Act gives the legal
custodian of a child “the right to determine the nature of the care and
treatment of the child, including ordinary medical care and the right and duty
to provide for the care, protection, training, and education, and the physical,
mental, and moral welfare of the child.” 42 Pa.C.S. § 6357.
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If the child’s parent, guardian, or custodian will not consent to the child’s
receipt of medical treatment, the juvenile court “may order the child to be
examined at a suitable place by a physician or psychologist and may also order
medical or surgical treatment of a child who is suffering from a serious physical
condition or illness which in the opinion of a licensed physician requires prompt
treatment[.]” 42 Pa.C.S. § 6339(b). The juvenile court may enter this order
“even if the parent, guardian, or other custodian has not been given notice of
a hearing, is not available, or without good cause[,] informs the court of his
refusal to consent to the treatment.” Id.
Similarly, the Juvenile Act identifies who may make medical decisions
on a dependent child’s behalf. Section 6351(a)(2) limits the transfer of
temporary legal custody of an adjudicated child to:
(i) Any individual resident within or without this Commonwealth,
including any relative, who, after study by the probation officer or
other person or agency designated by the court, is found by the
court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or
otherwise authorized by law to receive and provide care for
the child.
(iii) A public agency authorized by law to receive and provide care
for the child.
42 Pa.C.S. § 6351(a)(2) (emphasis added). Pursuant to this section, DHS
qualifies as an entity to which the juvenile court may transfer temporary or
permanent legal custody, and one who is authorized to make medical
decisions on behalf of S.W., A.W., Jr., J.W., and M.W. Therefore, under the
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Juvenile Act, the juvenile court properly directed DHS to fully vaccinate and
immunize S.W., A.W., Jr., J.W., and M.W. in light of the medical opinion of Dr.
Simon.
Likewise, § 3130.91 of the Public Welfare Code permits DHS to make all
“routine” medical decisions for a child in its legal custody. 55 Pa. Code
§ 3130.91(2)(i). “Examples of routine treatment include well baby visits,
immunizations and treatment for ordinary illnesses.” 55 Pa. Code
§ 3130.91(1)(i) (emphasis added). Thus, while DHS typically must obtain the
consent of either the child’s parent or the juvenile court prior to the child
undergoing non-routine treatment, the agency is authorized to order routine
treatments, including immunizations. See In re J.A., 107 A.3d 799, 819-20
(Pa.Super. 2015) (explaining medical authority granted to child service
agencies under Public Welfare Code).
Instantly, the juvenile court determined that routine medical treatment
was warranted in the form of updated vaccinations and immunizations. At the
conclusion of the hearing, the juvenile court declared:
[a]s long as these children remain in care and DHS has the sole
responsibility of keeping these children safe[,] I think part of that
is ensuring that they meet their day-to-day medical needs and I
do not believe that without immunizations that’s going to be done.
...
So, with all that in mind[,] I believe that it’s in the best interest of
the children to be vaccinated. I’m going to order vaccinations for
all children. I will do so over the objection of parents[.] . . . But
as long as these children are in care[,] I think that it’s necessary
and because DHS is also still responsible for placement. [A.W.,
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Jr.] is ready for discharge [from CHOP], and if part of the difficulty
. . . in finding him a placement [resource] is that he’s not
immunized given . . . his medical history[,] I believe that it’s
prudent to do so.
N.T., 12/14/16, at 79-80. The juvenile court’s decision was a reasonable
exercise of discretion, as authorized by the salient statutory provisions
addressing routine medical treatment.
As outlined supra, the Public Welfare Code, as well as the Juvenile Act,
empowers DHS to make all routine medical decisions for a dependent child.
The record establishes that S.W., A.W., Jr., J.W., and M.W. are at risk without
the additional medical monitoring and treatment that Parents oppose. Parents
will not consent to the administration of vaccinations. Instead, they prefer to
treat their children with natural therapies, including marijuana. Recall that,
despite being advised by physicians that their continued refusal to treat A.W.,
Jr.’s seizure disorder could cause neurological damage or sudden death,
Parents initially declined treatment for their son. That delay caused the child’s
condition to deteriorate to the point where he had to be transferred to the
intensive care unit and intubated. Indeed, Parents’ obstinacy during that
episode is the genesis of the adjudications of dependency that empowered
DHS to make the instant medical decisions on behalf of A.W., Jr., and his
siblings. Stated plainly, by routinely elevating their moral beliefs above their
children’s medical needs, Parents ignore the risks their children face without
proper monitoring and treatment. As such, the juvenile court was justified in
concluding that it was necessary to vaccinate and immunize S.W., A.W., Jr.,
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J.W., and M.W. in order to provide for their continued care, protection, and
physical welfare. 42 Pa.C.S. § 6357.
Moreover, we also reject Parents’ assertion that the juvenile court
denied them due process of law because the hearing was not “adequate and
meaningful.” Appellants’ brief at 13. Parents complain that the juvenile court
gave a “sermon regarding ‘disrespect,’” thereby obstructing Parents from
giving a closing argument. Id. Parents also contend that the juvenile court’s
interruptions made it impossible for counsel to “make any argument which the
court would entertain.” Id. at 15.
Our law is clear that,
[i]n order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court’s attention at a time when any error
committed could have been corrected. In this jurisdiction . . . one
must object to errors, improprieties or irregularities at the earliest
possible stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.
Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.Super. 2000).
Because counsel did not interpose a timely and specific objection on the
foregoing basis, Parents’ current argument is waived. See Pa.R.A.P. 302;
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Moreover, our review of the certified record does not
support Parents’ recitation of events. Instead, it reveals that Parents were
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able to make a closing argument. In fact, before the juvenile court stated its
findings on the record, it asked counsel if there was anything else she would
like to state. N.T., 12/14/16, at 76. Counsel responded in the negative. Id.
For all of the foregoing reasons, the juvenile court did not err in ordering
DHS to ensure that S.W., A.W., Jr., J.W., and M.W. receive full and updated
vaccinations and immunizations.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/18
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