J-A28006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MEGAN ASPLUNDH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TIMOTHY ANTONIO PENDERGRASS : No. 1904 EDA 2023
Appeal from the Order Entered June 8, 2023
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2016-26394
BEFORE: OLSON, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED MARCH 11, 2024
Appellant, Megan Asplundh (Mother), appeals from the order entered
on June 8, 2023,1 granting a petition for the modification of custody filed by
Timothy Antonio Pendergrass (Father) to vaccinate the parties’ minor,
10-year-old daughter, N.P (Child), against Covid-19. Upon careful
consideration, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. Father and Mother were married in July 2012. In 2016, Mother filed
a complaint for divorce. In her complaint, Mother requested primary physical
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Although Mother purports to appeal from the trial court’s July 12, 2023
decision denying her motion for reconsideration, the appeal properly lies from
the order entered on June 8, 2023 which resolved all outstanding issues. See
Pa.R.A.P. 341(b)(1) (stating, a final order is one that “disposes of all claims
and all parties.”). As such, we have changed the caption accordingly.
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custody and shared legal custody of Child. At a conciliation conference, the
parties submitted written stipulations regarding a vaccination schedule for
Child.2 On June 1, 2017, following a subsequent hearing before the trial court,
the court entered an order granting Mother primary physical custody and
Father partial physical custody, and awarding shared legal custody of Child.
The previously agreed 2017 vaccination stipulations were incorporated into
the custody order.
On February 1, 2022, Father filed a petition to modify custody,
requesting that Child be vaccinated against Covid-19. On March 10, 2023,
Mother filed an answer and counterclaim objecting to modification of the prior
vaccination stipulations based, inter alia, upon family medical history. The
trial court held a five-day hearing on the matter commencing on October 26,
2022. Both Mother and Father testified. The parties stipulated that Child’s
school did not require student Covid-19 vaccinations. Father presented
written documentation from the Center for Disease Control (CDC) showing its
vaccine recommendations and schedules regarding Covid-19. Mother
presented the testimony of Elizabeth Mumper, M.D. (Dr. Mumper), an expert
in pediatrics and child vaccination.
____________________________________________
2 At the time of the 2017 conciliation, Child had not been immunized and the
parties agreed, inter alia, to comply with the vaccination requirements of
Child’s school, attend Child’s vaccination appointments together, and set
limited parameters for treatments administered after vaccination, including
receiving a second medical opinion in the event of adverse reactions. See
Exhibit A, Amended Custody Order, 6/8/2023, at ¶¶ 1-7.
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More specifically, the trial court summarized the evidence presented as
follows:
Father testified that he sought to pursue a Covid-19 vaccination
for [] Child because (i) the vaccine has been proven safe and
effective, (ii) there is a social responsibility to do everything [] to
mitigate the effects of the disease collectively and (iii) Covid [was]
coming back in the fall and [Father was expecting] a newborn child
[and] want[ed] Child to be able to enjoy what it [felt] like to be a
big sister and not have any stresses or any other issues [] that
would impact [] how precious that experience [would] be.
Father testified that he would have preferred that [] Child resume
in-person schooling in January 2021 because the benefits of
socialization outweighed potential risks of contracting
coronavirus. Father further testified that he took [] Child to indoor
dining as prescribed by [] health care officials and establishments
and followed masking restrictions generally. And, Father testified
that he was not comfortable with the vaccination stipulations
created in 2017 (which he claimed [were] imposed as part of the
custody proceeding) and was requesting that [they] be amended.
Mother testified to a number of concerns that she had about
vaccinations in general and the Covid-19 vaccine specifically.
Mother expressed concern in general about the vaccinations due
to Mother’s medical history of [irritable bowel syndrome], food
sensitivities, seasonal allergies, food allergies, [and] migraines[.]
Mother testified that she believed the vaccination stipulations to
be a compromise between her and Father[] which allowed [] Child
to have the required vaccinations for schooling but not to rehash
the matter with respect to new vaccines or developments. Mother
also specifically testified that she was concerned that the Covid
vaccine [] had, in the first month[,] more reactions than all the
other vaccines combined. Finally, Mother testified [that] Covid-19
cases within [] Child’s school [] was encouragingly low in the
student population [as of] February 2023.
Both parties acknowledged that [] Child’s school [] did not require
the Covid-19 vaccination for students. However, Father produced
an e-mail from [the school] dated August 6, 2021 regarding []
Covid-19 procedures for the 2021-2022 school year. The email
provided that it [was] essential that all medically eligible members
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of [the] community, faculty and staff, children and family
members be vaccinated to protect themselves and others.
Mother offered Dr. Mumper as an expert in the field of pediatrics
and the Covid-19 vaccination in children. Dr. Mumper testified
with respect to the Covid-19 virus and vaccination generally and
[] Child’s potential reactions specifically. Dr. Mumper testified
that children in general [were] at a very, very low risk of death
from Covid or serious side effects from Covid. She further testified
that she had reviewed [] Child’s medical records and concluded
that for a healthy child[,] like Child[,] her risk based on the CDC
[data] would be about one in [2.5] million deaths. Dr. Mumper
concluded that the risk[s] of the vaccine[,] in [her] best medical
judgment[,] far outweigh[ed] the risk that she would face from
Covid itself.
Dr. Mumper further testified about several cases of reactions from
the Covid-19 vaccine noted in the Vaccine Adverse Reporting
System (“VAERS”) which, at the time of her testimony, had over
[1.5] million reports of various types of side effects. On
cross-examination, Dr. Mumper acknowledged that anybody can
file a [VAERS] report [after] which the CDC reviews the report.
She testified that there[ is] a backlog [of] thousands of reports
from 2022 that the CDC has not reviewed. Dr. Mumper also
acknowledged that nearly [80%] of the deaths [listed on] VAERS
[concerned] persons aged [60] or older or people who have
underlying [medical] conditions.
Dr. Mumper testified on cross-examination that she was aware of
the CDC recommendation that someone of [] Child’s age should
be vaccinated for Covid-19 and that the latest CDC
recommendations [were issued in] October [] 2022. [Dr.
Mumper] disagree[d] with that recommendation. Dr. Mumper[,
however,] was not licensed to practice medicine in Pennsylvania
and had not examined nor seen [] Child in person or remotely.
After the attorneys completed their questioning, the [trial] court
asked some questions of Dr. Mumper. Specifically, the court
asked Dr. Mumper to reconcile the fact that her opinions regarding
Covid-19 vaccinations for children [were] in contrast to the
recommendations of the CDC, the Food and Drug Administration
(“FDA”) and the Nations Institutes of Health (“NIH”) – each of
which recommend[ed] Covid-19 vaccinations for children. Dr.
Mumper testified that [it was] hard to believe [she] would
disagree with people in those agencies but stated that government
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agencies are intimately intertwined with the pharmaceutical
industry and may be generally biased towards vaccines for
financial reasons. The court then questioned Dr. Mumper about
the Mayo Clinic, a non-government entity, which also
recommends vaccination for children; Dr. Mumper acknowledged
the Mayo[] Clinic’s position [but] testified [the policy was] wrong
in regards to children.
Trial Court Opinion, 9/8/2023, at 2-4 (unnecessary capitalization, record
citations, quotations, and original brackets omitted).
On June 6, 2023, the trial court entered an order granting Father relief
and directing the parties to vaccinate Child for Covid-19 based upon the
recommendations of the CDC. On June 8, 2023, the trial court amended the
June 6, 2023 order to attach the parties’ 2017 vaccination stipulations as an
exhibit. On June 9, 2023, after Mother filed a request for reconsideration and
stay, the trial court granted a partial stay regarding vaccination, pending
argument on reconsideration. On July 7, 2023, the trial court held a hearing.
On July 12, 2023, the trial court granted a partial stay from vaccinating Child
for Covid-19 pending an appeal with this Court, but otherwise denied Mother’s
request for modification of the June 8, 2023 custody order. This timely appeal
resulted.3
On appeal, Mother presents the following issues for our review:
1. Did the trial court abuse its discretion when it ordered [] Child
to be vaccinated against Covid-19 when evidence at trial about
____________________________________________
3 On July 17, 2023, Mother filed a notice of appeal and an accompanying
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a)
on September 8, 2023. Father has not appealed and did not file an appellate
brief in response to Mother’s submission.
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the parties’ 2017 vaccination stipulations, [] Child’s health and
family medical history, and Mother’s significant concerns about
[] Child receiving the Covid-19 vaccine, all supported one
conclusion that it was not in the best interest of [] Child to
vaccinate her against Covid-19?
2. Did the trial court abuse its discretion and err as a matter of
law when it rejected the uncontradicted expert opinion of
Mother’s expert, Dr. Mumper, that the Covid-19 vaccination is
not in the best interest of [] Child?
3. Did the trial court abuse its discretion or err as a matter of law
when it concluded that the CDC’s general recommendations
about the Covid-19 vaccine outweighed Mother’s testimony
and Dr. Mumper’s expert opinion about the best interest of this
child?
4. Did the trial court abuse its discretion and err as a matter of
law when it concluded that [] Child should receive the Covid-19
vaccine despite evidence that [] Child’s school does not require
the vaccine?
Mother’s Brief at 6-7 (some capitalization omitted).
Mother’s four issues are inter-related, and we will examine them
together. Essentially, Mother argues that the trial court abused its discretion
by ordering that Child be vaccinated against Covid-19 “when evidence at trial
about the parties’ 2017 vaccination stipulations, the Child’s health and family
medical history, and Mother’s significant concerns about [] Child receiving the
Covid-19 vaccine all supported the conclusion that it was not in the best
interest of [] Child[.]” Id. at 32 (superfluous capitalization omitted). She
asserts that “the parties specifically limited vaccines” Child would receive, and
the Covid-19 vaccine is “a brand[-]new vaccine with limited research and has
produced significant adverse reactions.” Id. at 39. Mother opines that “the
parties have demonstrated a clear history of protecting [] Child’s health by
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limiting her exposure to vaccines to only those required for school [and, here,
i]t is undisputed that [] Child’s school does not require the Covid-19 vaccine.”
Id. at 32-33. Mother relies on an unpublished decision from this Court, P.M.
v. L.M., 1637 MDA 2019 (Pa. Super. 2020) to argue that the trial court “failed
to defer to Mother’s strongly held beliefs, the parties’ agreement to limit []
Child’s vaccines, Mother’s individual and family medical history, and Mother’s
concerns regarding [] Child receiving certain vaccines, a position Mother has
held since [] Child was born.” Id. at 38. Mother further contends that the
trial court abused its discretion “when it rejected the uncontradicted expert
opinion of Mother’s expert, Dr. Mumper, that the Covid-19 vaccination is not
in the best interest of [] Child” when “Father did not present any expert
witness, reports, or any other [competing] evidence or testimony[.]” Id. at
33. Mother argues that it is an abuse of discretion to “dismiss as
unpersuasive, and to totally discount uncontradicted expert testimony.” Id.
at 43, citing L.L.B v. T.R.B., 283 A.3d 859, 865 (Pa. Super. 2022); M.A.T. v.
G.S.T., 989 A.2d 11, 12 (Pa. Super. 2010) (en banc). Mother suggests that
the trial court erred by stating that Dr. Mumper testified that Child is “a healthy
child.” Mother’s Brief at 47. Instead, Mother posits that “Dr. Mumper testified
that [] Child is a healthy child with regard to [] risk of death if [] Child were
to contract Covid-19” as compared with the risks associated with receiving the
vaccine. Id. at 47. “In other words, [Child]’s health conditions, such as
frequent stomach issues, headaches, blood in her stool, and early pubescence
do not impact [] Child’s risk of death if she were to contract Covid-19,
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however, these same conditions do raise serious risks and concerns if [] Child
were to receive the Covid-19 vaccine, as set forth in detail in Dr. Mumper’s
testimony and report.” Id. at 48; see also id. at 12 (“As an infant, [] Child
suffered from Food-Protein-Induced Enterocolitis, a condition triggered by the
consumption of eggs and products containing eggs [] which includes certain
vaccines” and “Mother wanted to delay [] vaccines until [] Child was over all
of the symptoms[.]”). Mother also maintains that it was erroneous for the
trial court to rely on “the CDC’s general recommendations about the Covid-19
vaccine” as presented by Father because there was no evidence that “the CDC
recommendation is appropriate for this [particular c]hild.” Id. As such,
Mother requests that we vacate and reverse the trial court’s decision regarding
Covid-19 vaccination. Id. at 58.
Our standard of review is well-settled:
We review a trial court's determination in a custody case for an
abuse of discretion, and our scope of review is broad. Because
we cannot make independent factual determinations, we must
accept the findings of the trial court that are supported by the
evidence. We defer to the trial judge regarding credibility and the
weight of the evidence. The trial judge's deductions or inferences
from its factual findings, however, do not bind this Court. We may
reject the trial court's conclusions only if they involve an error of
law or are unreasonable in light of its factual findings.
S.W.D. v. S.A.R., 96 A.3d 396, 400 (Pa. Super. 2014) (internal citations
omitted).
Moreover:
[A] broad scope of review should not be construed as providing
the reviewing panel with a license to nullify the fact-finding
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functions of the court of first instance. As an appellate Court, we
are empowered to determine whether the trial court's
incontrovertible factual findings support its factual conclusions,
but may not interfere with those conclusions unless they are
unreasonable in view of the trial court's findings, and, thus,
represent a gross abuse of discretion. Custody decisions are to
be made on the basis of the child's best interests.
* * *
It is not this Court's function to determine whether the trial court
reached the “right” decision; rather, we must consider whether,
“based on the evidence presented, given due deference to the trial
court's weight and credibility determinations,” the trial court erred
or abused its discretion in [making decisions affecting] custody[.]
King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (internal citations and
quotations omitted).
Generally, when rendering a decision affecting custody, the trial court is
required to examine the sixteen factors under 23 Pa.C.S.A. § 5328(a) of the
Child Custody Act to determine the best interests of the children, however,
[w]e long have recognized that, when parties share legal custody
of a child, they may reach an impasse in making decisions for the
child that implicate custody. When that happens, the parties turn
to the trial court to decide their impasse. See, e.g., Staub v.
Staub, 960 A.2d 848 (Pa. Super. 2008) (deciding between public
and home schooling); Fox v. Garzilli, 875 A.2d 1104 (Pa. Super.
2005) (ordering that children would attend school in mother's
school district); Dolan v. Dolan, 548 A.2d 632 (Pa. Super. 1988)
(deciding between public and parochial school). This type of court
intervention does not affect the form of custody and hence, the
5328(a) best interest factors do not all have to be considered.
S.W.D, 96 A.3d at 404.
“The paramount concern in a child custody case is the best interests of
the child, based on a consideration of all factors that legitimately affect the
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child's physical, intellectual, moral and spiritual well-being.” Wheeler v.
Mazur, 793 A.2d 929, 933 (Pa. Super. 2002) (citation omitted). “This
determination is to be made on a case-by-case basis.” Id. (citation omitted).
“Only where it finds that the custody order is manifestly unreasonable as
shown by the evidence of record will an appellate court interfere with the trial
court's determination.” Id. (citation, quotations, and original brackets
omitted).
Furthermore, regarding expert testimony in child custody cases:
The trial court [is] under no obligation to delegate its
decision-making authority to [an expert]. See, e.g., K.W.B. v.
E.A.B., 698 A.2d 609, 613 (Pa. Super. 1997). It is an abuse of
discretion, however, for a trial court to dismiss “as unpersuasive,
and to totally discount, uncontradicted expert testimony.”
Murphey [v. Hatala], 504 A.2d [917,] 922 [(Pa. Super. 1986);
see also Rinehimer v. Rinehimer, 485 A.2d 1166, 1169 (Pa.
Super. 1984) (while not required to accept their conclusions, “the
lower court was obligated to consider the testimony of the two
experts.”); Straub v. Tyahla, 418 A.2d 472, 476 (Pa. Super.
1980) (“We conclude that the lower court abused its discretion in
totally discounting as unpersuasive the expert opinion testimony
of appellant's testifying psychiatrist.”). Accordingly, while a trial
court is not required to accept the conclusions of an expert witness
in a child custody case, it must consider them, and if the trial court
chooses not to follow the expert's recommendations, its
independent decision must be supported by competent evidence
of record. See Nomland v. Nomland, 813 A.2d 850, 854 (Pa.
Super. 2002) (“To say that a court cannot discount uncontradicted
evidence, however, is merely to rephrase the requirement that a
child custody court's conclusion have competent evidence to
support it. So long as the trial court's conclusions are founded in
the record, the lower court was not obligated to accept the
conclusions of the experts.”) (citations and quotation marks
omitted).
M.A.T., 989 A.2d at 19–20 (original brackets omitted).
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Here, the trial court initially determined that the parties’ 2017
vaccination stipulations were not binding because “Covid-19 was not in
existence at the time of June 1, 2017 custody order when the parties agreed
to the vaccine stipulations” and that pursuant to 23 Pa.C.S.A. § 5338, a party
may petition for modification of “a custody order to serve the best interest of
the child.” Trial Court Opinion, 9/8/2023, at 8. Thereafter, the trial court
ultimately concluded:
[B]oth parties offered testimony and evidence with respect to
whether [] Child should be ordered to receive the Covid-19
vaccine. Mother testified that, in her opinion, the Covid-19
vaccine was not in [] Child’s best interest. Mother further offered
expert testimony from Dr. Mumper who opined that, generally,
Child should not be vaccinated for Covid-19.
Father testified that, in his opinion, [] Child should be vaccinated
for Covid-19. Father offered documentation from [both] the CDC
website setting forth its recommended Covid-19 vaccination
schedule including for persons of [] Child’s age and from [Child’s
school,] which recommended, inter alia, that students be
vaccinated.
The [trial c]ourt ultimately concluded that Father’s testimony and
evidence were more persuasive and that Father’s requested relief
was in [] Child’s best interest.
* * *
It is true that Mother offered an expert witness to testify to her
position regarding the Covid-19 vaccine and Father offered no
such expert testimony. It is axiomatic, however, that custodial
issues are not determined solely on the basis of whether one side
(as opposed to both) offers an expert witness. Moreover, [the
trial c]ourt is not bound by the opinion of an expert witness.
* * *
Dr. Mumper testified that she reviewed [] Child’s medical records
and concluded “for a healthy child like Child[,] her risk based on
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the CDC numbers would be about one in [2.5] million deaths.” Dr.
Mumper’s ultimate opinion was that “the risk of the vaccine in my
best medical judgment far outweigh the risk that she would face
from Covid itself.”
On cross-examination, Dr. Mumper testified that she was not
licensed to practice medicine in Pennsylvania. Also, of note, she
testified that she had not examined nor seen [] Child in person or
remotely. Dr. Mumper testified that she was aware of the CDC
recommendation that someone of [] Child’s age should be
vaccinated for Covid-19 but testified [that “she] disagree[d] with
that recommendation.”
Dr. Mumper acknowledged that her opinion with respect to the
Covid-19 vaccination is contradictory to that of CDC, FDA, and the
NIH – each of which have recommended Covid-19 vaccinations for
children. She opined that these government agencies are
“intimately entwined with the pharmaceutical industry” and may
be generally biased towards vaccines for financial reasons.
Dr. Mumper also acknowledged that her opinion with respect to
the Covid-19 vaccination is contrary to the Mayo Clinic, a non-
government entity, which also recommends vaccination for
children. Dr. Mumper acknowledged the Mayo Clinic’s position and
testified [that “she thought] the May Clinic is getting it wrong in
regards to children.”
The [trial c]ourt carefully considered Dr. Mumper’s opinions and
testimony with respect to the Covid-19 vaccination for [] Child in
reaching its decision. Ultimately, the [trial c]ourt did not find her
testimony to be persuasive on this issue and decided not to accept
her conclusions.
A trial court must consider, but need not accept, the conclusions
of an expert witness in a child custody case. If the trial court
rejects the recommendation, its independent decision must be
supported by “competent evidence” of record.
There was ample “competent evidence” to support Father’s
position that it was in [] Child’s best interest to follow the CDC
guidelines with respect to Covid-19 vaccinations. Father testified
to his well-reasoned opinion and offered evidence that the CDC
and [] Child’s school recommended that children her age receive
the vaccination. Dr. Mumper conceded in her testimony that her
opinion was contrary to those of the CDC, FDA, NIH, and the Mayo
Clinic – which is certainly “competent evidence” of record. The
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reality is that both parties produced competent evidence and,
after careful consideration of the totality of the record, the [trial
c]ourt agreed with the position of Father (corroborated by the
positions of the CDC, FDA, NIH, FDA, and the Mayo Clinic).
Tasked with fashioning an appropriate order, the [trial c]ourt
determined that since the parents could not otherwise agree on a
Covid-19 vaccination protocol for [] Child, it was in [] Child’s best
interest for the parents to comply with the recommendations of
the CDC – the national public health agency of the United States.
This decision is supported by the record in this case.
Id. at 9-11 (case citations, record citations, and original brackets omitted).
We agree with the trial court’s assessment and, upon independent
review of the record, note the following. Father testified “[d]espite extensive
medical testing to date, there have been no allergies or sensitivities identified”
with Child. N.T., 10/26/2022, at 195. He was not “aware of her ever [testing
positive] for any allergies or autoimmune disorders[.]” Id. Child’s “stomach
problems [we]re the result of inadequate hydration.” Id. at 230. Father
further testified, unequivocally and without contradiction, that “[t]here's never
been an adverse reaction [from Child] to any form of a medical treatment
including vaccines.” Id. at 223. Additionally, Mother has never requested a
second opinion for questions pertaining to adverse vaccine reactions, as set
forth in the parties’ 2017 vaccination stipulations, “[b]ecause there has not
been one.” Id. at 224. Dr. Mumper testified that because Child was born by
C-section, had eczema as an infant and toddler, and had “at least one
wheezing fit,” Dr. Mumper was “concerned that [Child] is [skewed] towards
allergy and autoimmunity and skewed away from an immune system which is
very robust at treating infection.” N.T., 10/27/2022, at 38-39; id. at 52. Dr.
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Mumper agreed that, in reviewing Child’s medical records, Child had no known
allergies to the 17 prior vaccines already administered to her. Id. at 46-48;
see also id. at 49 (“[Child] has had Hepatitis B, three vaccines; she's had
DTaP, four vaccines; three Polio vaccines; two MMR vaccines; two Varicella
vaccines; and two Hepatitis A vaccines.”); see also id. at 77 (Dr. Mumper
agrees Child has never tested positive for any allergies or negativity to
vaccines); see also id. at 79 (Dr. Mumper was “commenting about [Child’s]
immune system in infancy” when testifying about Child’s eczema, but “did not
say [] that [Child] was a sickly child now who had multiple illnesses or some
type of immune deficiency.”). Mother testified that Child “had what's called
Food Protein-Induced Enterocolitis as an infant that was triggered by eggs,
and her pediatrician in Las Vegas couldn't tell [] which vaccines had egg in
them or not. So [Mother] wait[ed] until [Child] was over all of those
symptoms of Food Protein-Induced Enterocolitis which seemed to stop when
she was around two [years of age].” N.T., 2/15/2023, at 84-85.
As mentioned, Father presented Covid-19 vaccine guidelines from the
CDC. See Exhibit F-29. The CDC guidelines recommend that children from
six to 12 years of age be vaccinated against Covid-19 “based on age and
medical condition and vaccine composition.” Id. The guidelines delineate
specific vaccine doses “for most people” and for “those who are moderately or
severely immunocompromised.” Id. (superfluous capitalization omitted). In
this case, as set forth above, there was no evidence presented that Child is
moderately or severely immunocompromised, but even if she were, the CDC
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recommends that children who are moderately or severely
immunocompromised be immunized. The record reveals that Child has no
known allergies or autoimmune disorders, her enterocolitis and sensitivity to
eggs resolved, she has never had an allergic reaction to previously
administered vaccines, and Dr. Mumper generally agreed that Child is healthy
overall. As such, the trial court considered the conclusions of Dr. Mumper,
but chose not to follow or adopt the expert's recommendations. As the
testimony set forth above reveals, the trial court’s independent decision was
supported by competent evidence of record. Accordingly, we find that the
trial court did not abuse its discretion in ordering the parties to vaccinate Child
against Covid-19.
Finally, we reject Mother’s reliance on this Court’s unpublished,
non-precedential decision in P.M. In P.M., the trial court granted the mother
in that matter sole legal custody and she did not want to have her children
vaccinated “due to her belief that her first child’s death was vaccine-related.”
See P.M. supra at *22. However, in that case, the “[m]other introduced
evidence that [the f]ather did not object to the [c]hildren remaining
unvaccinated prior to the parties’ separation and that he was using this issue
as a threat in an attempt to coerce [] settle[ment of] the custody issues” and,
furthermore, that the father admitted that “if custody issues were settled, no
one had to be vaccinated.” Id. (record citation omitted). Ultimately, the
P.M. “[C]ourt left open the option to order vaccination in the future.” Id. at
*23. The unpublished decision in P.M. is not controlling, but also
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distinguishable. In P.M., the mother was granted sole legal custody of the
parties’ children; whereas, in this case, Mother and Father have shared legal
custody, do not agree about vaccinating Child for Covid-19, and, therefore,
turned to the trial court to decide their impasse. Moreover, there is also no
evidence in this appeal which suggests that Child had adverse reactions to
previous vaccinations. Accordingly, Mother’s reliance on P.M. is unavailing.
For all of the foregoing reasons, Mother is not entitled to relief.
Order affirmed.
Date: 3/11/2024
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