Motion to compel vaccinations in the Family Court

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.