Scheib, M. v. Tucker, C. ( 2022 )

J-S19016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEGAN S. SCHEIB : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER A. TUCKER :
:
Appellant : No. 618 EDA 2022
Appeal from the Order Entered February 16, 2022
In the Court of Common Pleas of Philadelphia County Domestic Relations
at No(s): 0C1800969
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JULY 29, 2022
Appellant, Christopher A. Tucker, appeals from the order entered on
February 16, 2022, granting a petition for special relief filed by Megan S.
Scheib (Mother) to vaccinate the parties’ two minor children1 against
Covid-19.2 Upon review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The parties have a son (born January 2016) and a daughter (born April
2017).
2 Here, the trial court recognized that an appeal as a matter of right from a
collateral order pursuant to Pa.R.A.P. 313 is appropriate because the rights to
be reviewed are too important to be denied and Father’s claim could be
irreparably lost. See Trial Court Opinion, 3/15/2022, at 7-8; see also
Pa.R.A.P. 313 (“A collateral order is an order separable from and collateral to
the main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.”). We deem our
jurisdiction proper.
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The trial court summarized the facts and procedural history of this case
as follows:
Since July 2018, [Mother and Father] have been involved in
custody litigation. By order dated March 13, 2019, entered
pursuant to a stipulation of the parties, [the parties] currently
share legal custody of both children. [Mother] has primary
physical custody and [Father] has partial physical custody.
Mother filed a petition for special relief on December 8, 2021,
seeking court approval for the vaccination of the children [for
Covid-19]. The [trial] court conducted an evidentiary hearing on
[Mother’s] petition on February 1, 2022, at the conclusion of which
it held the matter under advisement and directed counsel to [file
supporting] briefs[. C]ounsel complied [] and on February 16[,
2022] the [trial] court granted Mother’s request that the children
be vaccinated and directed that the vaccination of each child be
“in accordance with all recommendations of the Centers for
Disease Control and Prevention [(CDC)] and the U.S. Food and
Drug Administration [(FDA].”
Father filed a notice of appeal and a [corresponding] statement of
errors complained of on appeal [pursuant to Pa.R.A.P. 1925(c)]
on February 23, 2022. In addition, Father sought a stay [which
the trial court granted on] February 25[, 2022] pending appeal.
On March 3[, 2022,] Mother filed a motion for reconsideration of
[the stay which] the [trial] court denied[.3 The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on March 15, 2022.]
Trial Court Opinion, 3/15/2022, at 1-2.
On appeal, Father presents the following issue for our review:
1. Did the trial court err and/or abuse its discretion by granting
[Mother’s] petition for special relief to have the minor children
receive vaccinations for the Covid-19 virus while the vaccines
are still under emergency use authorization and have not
____________________________________________
3 In her motion for reconsideration, Mother argued that the parties’ older
child, who was over the age of five as required for vaccination, had already
received the first dose of the vaccine pursuant to the trial court’s February 16,
2022 order. See Mother’s Brief at 5 n.1.
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received full approval from the U.S. Food and Drug
Administration[?]
Father’s Brief at 5 (unnecessary capitalization omitted).
Citing our Supreme Court’s decision in Schmehl v. Weglin, 927 A.2d
183 (Pa. 2007), Father argues that the Commonwealth’s interest in protecting
the well-being of children “does not extend to all things that may be beneficial
to children nor confer upon the Commonwealth the power to intrude upon the
decisions of a fit parent.” Id. at 8, citing Schmehl, 927 A.2d at 196. Father
claims that there was no evidence that the children’s health and safety were
in jeopardy and “considering that the vaccine has yet to receive full approval
from the FDA, ordering such vaccination may put the children at risk[.]” Id.
at 9-10. Father points to a publication from the vaccination manufacturer,
Pfizer, Inc., dated February 19, 2021, which states, inter alia, that “[r]isks
and uncertainties include […] the risk that more widespread use of the vaccine
will lead to new information about efficacy, safety, or other developments,
including the risk of additional adverse reactions.” Id. at 10 (record citation
omitted). Finally, for persuasive value, Father relies on an unpublished
decision from this Court, P.M. v. L.M., 1637 MDA 2019 (Pa. Super. 2020)
“wherein [this] Court permitted the children in the matter to not receive their
vaccinations (baby shots) pursuant to the CDC because one of the parents in
that case believed that their first child’s death was vaccine-related.” Id. at
11.
Our standard of review is well-settled:
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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
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,
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[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. “We emphasize that in all matters affecting custody,
the child's best interest is still paramount.” Id.In this case, the trial court noted that Mother presented documentary
evidence from the CDC regarding its findings pertaining to the Covid-19
vaccine for children between the ages of five and 11. Trial Court Opinion,
3/15/2022, at 2. The CDC found “[t]he Covid-19 vaccine for children is safe
and effective [and] undergone rigorous review [] after thorough testing for
safety in thousands of children” and “is over 90% effective in preventing
Covid-19 in children ages [five] through 11 years.” Id. at 3. The CDC further
found that “vaccine side effects were mild [and t]he most common side effect
was a sore arm” which “should go away in a few days.” Id. The CDC further
recognized that “[s]ome people have no side effects and severe allergic
reactions are rare.” Id. Whereas, the literature from the CDC noted that
“[c]hildren who are not vaccinated may also be at risk for prolonged Covid-19
in children ages [five] through 11 years.” Id. Mother also presented the
testimony of the children’s pediatrician who “testified that he 100%
recommends vaccination for these children in accordance with the
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recommendations of the American Academy of Pediatrics and the CDC” and
“based upon their adherence to the scientific method.” Id. at 6. Mother also
presented the testimony of “an expert in the fields of epidemiology, infectious
and vaccine-preventable diseases and vaccines” who opined the children
should receive the Covid-19 vaccine. Id. Moreover, the expert testified that
emergency use authorization for a vaccine “is a matter of the bureaucratic
process employed by the FDA before it gives full approval” but “is not a basis
for refusing to vaccinate children[.]” Id.
Ultimately, the trial court determined that the children should be
vaccinated against Covid-19:
the [trial] court [] analyze[d] the evidence presented to determine
the course of action that [was] in [the children’s] best interests.
The unrefuted credible medical evidence supports the ruling that
the children be vaccinated[.]
* * *
Both the treating physician and an expert in the field of
vaccine-preventable diseases testified to their unequivocal
recommendation that the children be vaccinated in accordance
with all recommendations of the CDC. The fact that the Pfizer
vaccine has received [‘]emergency use approval[’] rather than [‘]full
approval[’] does not militate against having the children
vaccinated. The evidence shows the risks of harm to the children
by not being vaccinated outweigh any possible benefit of waiting
until the vaccine has received full approval. Father’s misgivings
were not substantiated by probative evidence.
The court considered the documentary evidence from the CDC
[and] the testimony presented in concluding that it is in the best
interests of the children to be vaccinated as stated in the order of
February 16, 2022.
Id. at 9-10.
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Upon review, we discern no error of law or abuse of discretion by the
trial court. Initially, we note that Father’s reliance on Schmehl is misplaced,
for several reasons. First, the language Father cites comes from the Schmehl
dissent written by Justice Baldwin, which is not controlling. Moreover, the
Schmehl decision dealt with grandparent custody rights which is not at issue
herein. Regardless, Father’s argument, which focuses upon the
Commonwealth’s power to intercede in furtherance of its own interest in the
safety, welfare, and protection of children, improperly characterizes the
nature of the dispute in this case. Here, Mother, a fit parent, was the party
who sought to vaccinate the children, not the Commonwealth. Father opposed
vaccination. As a result, the parties, who share legal custody of children,
reached an impasse in making a medical decision with respect to their
children. Mother and Father thus turned to the trial court to decide an impasse
that arose between two fit parents. This is not a case which tested the power
of a state to take action in furtherance of its own, independent interest in the
safety and welfare of children.
Likewise, we reject Father’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
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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 is not controlling, but also distinguishable. In
P.M., the mother was granted sole legal custody of the parties’ children and
she did not want the children to be vaccinated based upon her prior
experiences. In this case, there was no evidence to support the notion that
the children at issue had prior adverse reactions to vaccines. Accordingly,
Father’s reliance on P.M. is unavailing.
Finally, the trial court examined the children’s best interests and
determined that the evidence presented showed that the health benefits of
the children receiving the Covid-19 vaccination outweighed the known,
associated risks. Mother presented documentary and testimonial evidence
that supported the trial court’s decision and this evidence was not contested
by Father.4 Upon our review of applicable law and the certified record in this
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4 Recognizing that “in a custody dispute, the best-interests standard is
decided on a case-by-case basis and considers all factors which legitimately
have an effect upon the child's physical, intellectual, moral and spiritual
well-being[,]” our decision here is limited to the Covid-19 vaccinations at
issue. R.L. v. M.A., 209 A.3d 391, 398 (Pa. Super. 2019) (internal citation
and quotations omitted). As set forth at length above and as supported by
the certified record, the trial court properly considered documentary evidence
from the CDC and the testimony of the children’s pediatrician and an expert
in epidemiology in rendering its decision. That decision, however, does not
foreclose future challenges or impasses between the parties regarding the
children’s medical care.
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matter, we discern no abuse of discretion by the trial court in ordering that
the children be vaccinated against Covid-19.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2022
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