In Kagen aka Gaurino v Kagen,
Unpub Per Curiam Opin of the Court of Appeals (#318459, 12/18/2014) the Court
held that the trial court erred by failing to apply the best interest factors
to a Motion to compel vaccinations of the parties’ children and abused its
discretion when it excluded hearsay government statements about the safety,
potential risks, and benefits of childhood vaccinations.
Following the parties’ divorce,
defendant discovered plaintiff had discontinued their children’s vaccinations
several years earlier. The parents could not agree on whether the children’s
vaccinations should be updated and brought their dispute before the Circuit
Court. The Court of Appeals held that the circuit court failed to describe the
applicable burden of proof and made no consideration of any statutory best interest
factor in deciding the matter as required by Pierron v Pierron, 486 Mich
81, 91 (2010), and Lombardo v Lombardo, 202 Mich App 151, 160 (1993).
The trial court also abused its discretion in excluding from evidence
government-issued hearsay statements about the safety, potential risks, and
benefits of childhood vaccinations.
The Child Custody Act “applies to all
circuit court child custody disputes and actions, whether original or
incidental to other actions.” MCL 722.26(1). The act provides that when parents
share joint legal custody “the parents shall share decision-making authority as
to the important decisions affecting the welfare of the child.” MCL
722.26a(7)(b). However, when the parents cannot agree on an important decision,
such as a change of the child’s school, the court is responsible for resolving
the issue in the best interests of the child. [Lombardo, 202 Mich App at
159]; see also MCL 722.25(1). [Pierron, 486 Mich at 85.] In Lombardo,
202 Mich App at 157-158, this Court described the judicial process of resolving
disputes regarding “important decisions affecting the welfare of the child”
between the child’s joint custodians.
The Supreme Court clarified a court’s
role in such circumstances in Pierron. Before the court considers the substance
of the dispute, it must determine “whether the proposed change would modify the
established custodial environment” of the children. Pierron, 486 Mich at
85. If it would, the moving party bears a heightened burden of proving by clear
and convincing evidence that the change is in the children’s best interests. Id.
at 86. If not, the moving party need only establish by a preponderance of
the evidence that the proposed change serves the children’s best interests. Id.
at 89-90. The decision to vaccinate the children in no way affects their
established custodial environment; the decision has no bearing on who the
children “look[] to . . . for guidance, discipline, the necessities of life,
and parental comfort.” Id.at 86 (quotation marks and citation omitted).
Accordingly, the burden of proof required was the lesser preponderance of the
evidence standard that vaccinating the children was in their best interests.
The court must then resolve the
underlying dispute. As stated in Lombardo: [J]oint custody in this state
by definition means that the parents share the decision-making authority with
respect to the important decisions affecting the welfare of the child, and
where the parents as joint custodians cannot agree on important matters such as
education, it is the court’s duty to determine the issue in the best interests
of the child. [Lombardo, 202 Mich App at 159.] “The controlling
consideration” must be “the best interests of the children.” Id. at
159-160; see also Pierron, 486 Mich at 91. In this regard, The court
should not relinquish its authority to determine the best interests of the
child to the primary physical custodian. A trial
court must determine the best interests of the child in resolving disputes
concerning “important decisions affecting the welfare of the child” that arise
between joint custodial parents. [Lombardo, 202 Mich App at 160.] In
determining the best interests of the child, the court “must consider,
evaluate, and determine each of the” best interest factors of MCL 722.23. Lombardo,
202 Mich App at 160. In Pierron, 486 Mich at 91, quoting Parent v
Parent, 282 Mich App 152, 157 (2009), the Supreme Court clarified that the
trial court must “‘make explicit factual findings with regard to the applicability
of each factor’” when the decision will not affect the children’s
established custodial environment. (Emphasis in original.) If a factor is
relevant to the decision, the court must “make substantive factual findings” on
the record; if not, the court need not reach the substance of that matter. Pierron,
486 Mich at 91.
Here, the circuit court made absolutely
no finding required by Lombardo or Pierron. The court failed to
consider whether the vaccination decision would change the children’s custodial
environment (in fact, it would not). The court did not mention the burden of
proof that it applied. Accordingly, we cannot know whether the court utilized
the preponderance of the evidence standard as required or incorrectly applied
the stricter clear and convincing evidence standard. The circuit court never
cited MCL 722.23 or considered the best interest factors as required. Given
these failures, we are unable to review the circuit court’s best-interest
analysis. Accordingly, we vacate the circuit court’s opinion and order and
remand for a continued hearing. At the hearing, the court must declare that its
decision will not affect the children’s custodial environment and therefore
apply the preponderance of the evidence standard. The court must then consider
and expressly state whether each best interest factor of MCL 722.23 is relevant
in this case, and then must analyze on the record the substance of any relevant
best interest factors. We will retain jurisdiction and consider the propriety
of the circuit court’s decision after an adequate record is made.
Defendant also challenged the circuit
court’s exclusion of proffered hearsay evidence at the hearing. This evidence
included statements and summaries of scientific studies regarding the safety,
benefits, and risks of childhood inoculations. These statements were issued by
the Center for Disease Control, National Institute of Health, Food and Drug
Administration, and Michigan Department of Community Health. The circuit court
excluded this evidence, finding that it fit within no exception to the hearsay
rule.
Hearsay is a statement made by a
declarant outside of the courtroom that is offered in evidence to prove the
truth of the matter asserted. MRE 803(24), the catch-all exception to the
hearsay rule, provides: Other Exceptions. A statement not specifically covered
by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact, (B) the statement is
more probative on the point for which it is offered than any other evidence
that the proponent can procure through reasonable efforts, and (C) the general
purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of the statement makes known
to the adverse party, sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare to meet it, the
proponent’s intention to offer the statement and the particulars of it,
including the name and address of the declarant.
In People v Katt, 468 Mich 272,
290 (2003), the Supreme Court held that this catch-all exception “may be used
to admit statements that are similar to, but not admissible under, the
categorical hearsay exceptions.” However, “the requirements of the exceptions
are stringent and will rarely be met, alleviating concerns that the residual
exceptions will ‘swallow’ the categorical exceptions through overuse.” Id. at
289. “To be admitted under MRE 803(24), a hearsay statement must: (1)
demonstrate circumstantial guarantees of trustworthiness equivalent to the
categorical exceptions, (2) be relevant to a material fact, (3) be the most
probative evidence of that fact reasonably available, and (4) serve the
interests of justice by its admission.” Id. at 290. In relation to the
first factor, the Supreme Court advised that “courts should consider all
factors that add to or detract from the statement’s reliability.” Id. at
292. To meet the second factor, the evidence must be relevant to “‘[a] fact
that is significant or essential to the issue or matter at hand.’” Id.,
quoting Black’s Law Dictionary (7th ed).
As described in Katt, 468 Mich at
293: The third requirement is that the proffered statement be the most
probative evidence reasonably available to prove its point. It essentially
creates a “best evidence” requirement. This is a high bar and will effectively
limit use of the residual exception to exceptional circumstances. For instance,
nonhearsay evidence on a material fact will nearly always have more probative
value than hearsay statements, because nonhearsay derives from firsthand
knowledge. Thus, the residual exception normally will not be available if there
is nonhearsay evidence on point. [Quotation marks and citation omitted.]
Finally, under the fourth factor, a court may refuse to admit evidence that
satisfies the first three prongs “if the court determines that the purpose of
the rules and the interests of justice will not be well served by the
statement’s admission.” Id.
The circuit court abused its discretion
in excluding the proffered evidence based on the “best evidence” requirement of
MRE 803(24). The trail court erroneously contended that the best evidence about
the safety and necessity of childhood vaccinations would have come from the
children’s pediatrician. The pediatrician’s live testimony would be nonhearsay
derived from firsthand knowledge. However, the children’s pediatrician is a
general practioner and likely does not possess detailed personal knowledge on
the safety, effectiveness, and potential risks of immunizations. The four
reports were prepared by experts in the field of child immunizations and were
based on scientific study. The fact that the reports were otherwise hearsay
does not render them less worthy of belief. And, it would impose an
unreasonable burden to present the testimony of the government agents who
compiled or prepared the reports. Moreover, the evidence was reliable. Katt,
468 Mich at 291 n 11, instructed that we may employ the nonexhaustive list of
reliability factors accompanying the federal rules, including consideration of
“[w]hether the statement was made under formal circumstances or pursuant to
formal duties, such that the declarant would have been likely to consider the
accuracy of the statement when making it.” Federal Rules of Evidence Manual
(Matthew Bender & Co Inc, 2002), § 807.02(4). All four reports are official
(formal) statements by government agencies. The presentation of this
information in a public forum and as part of the authors’ official duties
suggests “that the declarant would have been likely to consider the accuracy of
the statement when making it.” Id. As noted in Grant, The
Trustworthiness Standard for the Public Records and Report Hearsay Exception,
12 Western State U L Rev 53, 56 (1984), “The principal basis for the
presumption of trustworthiness of public records is the assumption that public
officials will properly perform their duties with accuracy and fidelity.
Officials have the duty to make accurate statements, and this special duty will
usually suffice as a motive to incite the officer to its fulfillment.” The
proffered materials are also highly relevant to a material point, as
acknowledged by the circuit court. The focus of the hearing was the parties’
disagreement on childhood vaccinations. The opinions of these particular
government agencies would certainly assist the fact finder in resolving whether
the best interests of the children would be served by vaccination against
disease. This is a custody matter; and it would be cost prohibitive to require
one to present high-paid experts to testify regarding the benefits and safety
of vaccinations. And, it does not unduly burden the other parent’s ability to
present her side of the dispute; there are a plethora of studies regarding vaccination
ingredients and side effects that she could present as well, assuming that the
studies likewise meet the requirements of MRE 803(24).
The Court of Appeals did
not address whether the proponent of the statement made known to the adverse party,
sufficiently in advance of the trial or hearing, his intention to offer the
statement and the particulars of it, including the name and address of the
declarant.
