NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1493-20
M.A.,
Plaintiff-Respondent,
v.
A.A.,
Defendant-Appellant. _______________________
Argued May 24, 2021 – Decided June 30, 2021
Before Judges Messano, Hoffman, and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-0537-18.
Phyllis Widman argued the cause for appellant.
Steven P. Scheffler argued the cause for respondent (Reynolds & Scheffler, LLC, attorneys; Kendyll G. Clayton, on the brief).
PER CURIAM Defendant A.A. appeals a January 21, 2021 Family Part order entered
following a bench trial that appointed plaintiff M.A. as the limited medical
guardian of vaccinations for their daughter. We affirm the order, finding
substantial credible evidence in the record to support it.
I.
A.
Plaintiff and defendant were married in 2005. They have one child —
A.A. (Adele)1 who was born in July 2013. The parties divorced in February
2018. As part of their divorce, they entered into a Marital Settlement Agreement
(MSA).
Under the MSA, the parties share joint legal and physical custody of
Adele. Paragraph 5.1 of the MSA provides:
5.1. It is the parties' intention to share joint physical and legal custody of their daughter, [Adele], without the designation of a parent of primary residence. The parties considered their ability to communicate and share all the needs of [Adele], and further agree that their daughter's best interest is paramount. . . . [T]he parties shall immediately notify the other in the event of an emergency situation involving [Adele] and agree to provide the other with emergency telephone numbers.
1 We use initials and a pseudonym to maintain the confidentiality of the child. R. 1:38-3(d). A-1493-20 2 [(emphasis added).]
Under paragraph 5.2, plaintiff and defendant both agree they "shall
conduct themselves in a manner that shall be best for the interest, welfare, and
happiness of [Adele]." The MSA did not address the procedure for resolving
disputes between plaintiff and defendant in the event of a disagreement about
how to address a medical emergency involving Adele. It did not mention either
parent's religious beliefs or how those might relate to Adele.
The MSA also did not mention vaccinations for Adele. This was even
though on June 26, 2015 — before they were separated in September 2015 —
they submitted a letter to Adele's preschool that claimed a religious exemption
from vaccination requirements. This letter provided:
To Whom It May Concern:
As parents, based on our personal religious beliefs, we object to the following vaccinations, including but not limited to, Dtap/DPT, HepB, Hib, Tetanus (TB), MMR, Polio, and Varicella (Chicken Pox), for our child, [Adele].
Our child's body is the Temple of God. Our family's religious beliefs prohibit the injection of foreign substances into our bodies. To inject into our child any substance which would alter the state into which she was born would be to criticize our Lord and question His divine omnipotence. Our faith will not allow us to question our Lord and God, nor challenge His divine power.
A-1493-20 3 The letter quoted from the Bible. It noted that their objection "is based on our
lifelong deeply-held spiritual beliefs based on scripture." The letter said that
vaccination of Adele "violates laws put forth within us by a higher force . . . ."
The letter concluded with:
Our personal religious beliefs include our obedience to God's law, the Holy Bible, and we believe that we are responsible before God for the life and safety of our child, created by God.
After their divorce, they provided a letter to their local Board of Education
on August 3, 2018, that again requested a religious exemption for Adele to
attend kindergarten without the State law required vaccinations. It contained
much of the same language as the earlier letter.
B.
Plaintiff testified that on April 11, 2019, Adele stepped on a rusty nail that
punctured her foot. He took her to the hospital where she received a diphtheria,
tetanus, and pertussis (DTaP) vaccination. Plaintiff testified he advised
defendant that Adele received these vaccinations. Adele did not have an adverse
reaction.
A few weeks later, defendant and Adele were scheduled to go to Bulgaria.
Plaintiff opposed this because Adele did not have all her vaccinations. On May
10, 2019, plaintiff filed an order to show cause and verified complaint in the
A-1493-20 4 Family Part seeking to enjoin defendant from taking Adele out of the country.
Defendant objected because she previously vacationed with Adele in Bulgaria
even though she was not vaccinated. On May 16, 2019, the Family Part judge
denied plaintiff's OTSC and allowed defendant and Adele to go to Bulgaria
because she previously travelled there without vaccinations.
After Adele returned, plaintiff took her for follow-up vaccinations. On
May 29, 2019, she received a second tetanus shot and the "MMR" vaccine for
measles, mumps, and rubella. Plaintiff authorized these shots without the
knowledge or consent of defendant. Adele developed a rash in an area on her
back sometime between one to four weeks later. Her pediatrician, Dr. Edwin
Lopez-Bernard, examined the rash on June 26, 2019, and diagnosed it as contact
dermatitis from something Adele had touched.
The day earlier — June 25, 2019 — defendant filed a motion in the Family
Part seeking sole custody of Adele and to enjoin plaintiff from having any more
vaccinations administered to Adele. Defendant claimed she and plaintiff agreed
not to vaccinate Adele and that they submitted a "religious exemption" from
vaccination for her attendance at school. She alleged plaintiff "deceptively went
behind [her] back" to have Adele vaccinated.
A-1493-20 5 Plaintiff filed a cross-motion requesting sole legal authority to make
medical decisions for Adele, including decisions about vaccinations. In the
alternative, plaintiff requested a plenary hearing. In plaintiff's supporting
certification, he alleged vaccinations were needed to keep Adele "safe and
healthy" for school. Plaintiff wanted age-appropriate vaccinations. Plaintiff
alleged defendant was against all vaccinations based on "conspiracy theories"
and not because of any religious objection; in fact, he alleged defendant was an
atheist. On August 30, 2019, plaintiff consented to refrain from further
vaccination pending further court order.
C.
The trial court conducted a three-day plenary hearing in August 2020. We
summarize the trial evidence only as necessary to address the points raised on
appeal.
Dr. Arthur Edward Brawer testified for defendant as an expert in
rheumatology and immunology. He reviewed Adele's records from the
Children's Hospital of Philadelphia (CHOP) when she was admitted in 2017. He
met with defendant and discussed Adele's growth and development. Dr. Brawer
testified Adele had a "diathesis or a tendency to autoimmune problems." He
also examined Adele.
A-1493-20 6 Dr. Brawer testified that in April 2019, Adele received the DTaP
vaccination and later the MMR vaccine. In June 2019, she received another
DTaP and MMR vaccine. She developed what he said was a diffuse skin rash
on her trunk and extremities. From photographs of the rash, Dr. Brawer
diagnosed this as a "systemic allergic reaction" to the vaccines given in June.
In August 2017, when she was four years old, Adele had idiopathic
thrombocytopenia purpura (ITP) caused by a virus that attacked her body's
platelets. After a discussion about vaccines and the autoimmune disorders that
can occur from vaccines, Dr. Brawer testified that a person with a previous
autoimmune condition is at risk. He testified that Adele is
at very high risk for a life-threatening autoimmune problem, which with the next vaccination doesn't have to necessarily be low platelets. It could be a severe vasculitis. It could be a stroke. It could be anything. It could be a life-threatening inflammatory and immunologic disorder and it doesn't necessarily have to involve platelets.
He testified this could happen because Adele already had ITP and a skin rash.
Dr. Brawer opined it was "mandatory to minimize the risk benefit ratio in this
patient and to minimize the risk." He concluded Adele is at "high risk for a
li[fe]-threatening disorder if she's vaccinated." He expressed that it would be
A-1493-20 7 better to let "her go her merry way and just get a viral infection of any kind,
mumps, measles, whatever."
Dr. Brawer testified that for the vast majority of people, contracting
"natural viral infections" does not "pose any risk . . . ." He also testified vaccines
"prevent a whole host of infectious diseases, which has been a great achievement
in medicine to have this type of protection from dreaded diseases that previously
could have been fatal or could have reaped significant morbidity on people."
Dr. Brawer offered that it is "a great thing that we can [vaccinate] hundreds of
millions of people to prevent against dreaded diseases. That's a fact."
Dr. Brawer testified that his opinions were based on his knowledge,
experience, research, examination of the child, review of CHOP records and a
discussion with defendant. He did not speak with plaintiff or with Dr. Lopez-
Bernard. He did not review any of Dr. Lopez-Bernard's records. Defendant told
him about the results of blood tests taken after Adele had ITP, but he did not
review them. He determined — based solely on photographs — that the rash
was a systemic reaction and not prickly heat. He did not order any follow-up
laboratory tests.
Dr. Lopez-Bernard testified that he has been Adele's pediatrician since
2017. He testified as an expert in pediatrics and in vaccines, but the court
A-1493-20 8 limited the scope of his testimony to his medical practice, his training and
experience, and the manner in which he administers vaccines.
Dr. Lopez-Bernard testified vaccines are "highly effective." In his
eighteen years as a pediatrician, he vaccinated approximately 63,000 patients.
None of his patients experienced major effects from the vaccinations. In his
opinion, the benefits of vaccinations are greater than the risks of possible side
effects. Dr. Lopez-Bernard testified that death from vaccines was rare.
Dr. Lopez-Bernard first saw Adele in August 2017 because of a nosebleed
that would not stop. He referred her to the hospital where she was diagnosed
with idiopathic ITP. Defendant told him she was not happy that Adele needed
to receive platelets and a blood transfusion for ITP. He saw Adele again on
September 20, 2017, and by then she no longer had ITP. Dr. Lopez-Bernard
suggested to defendant that Adele should receive vaccinations, but she would
not agree. He has seen Adele a total of ten times. He discussed vaccinations
with defendant on two or three occasions. She never raised a religious based
objection to vaccinations.
Dr. Lopez-Bernard testified that in April 2019, Adele stepped on a rusty
nail. Plaintiff took her to the hospital where she received the DTaP vaccination.
A-1493-20 9 She did not have any side effects. On May 29, 2019, Adele received the MMR
and DTaP vaccinations.
On June 26, 2019, Dr. Lopez-Bernard treated Adele for a rash on her back
that he diagnosed as simple contact dermatitis. He did not relate this to the
vaccinations. Dr. Lopez described Adele as "very healthy." She was "medically
and physically clear to receive vaccinations." She did not have chronic ITP. At
his earlier deposition, Dr. Lopez-Bernard testified Adele has an increased risk
of ITP of "[three] to [five percent] compared to the general population."
Dr. Lopez-Bernard testified that in his experience, a specialist generally
conducts additional analyses such as imaging, bloodwork, fluid tests, and a
urinalysis. He said he will treat Adele even if she is not vaccinated and
encourage her to become vaccinated.
Defendant claimed the topic of vaccinations was not included in the MSA
because plaintiff and she agreed not to vaccinate Adele. She claimed plaintiff
prepared the religious exemption letters for Adele's preschool and kindergarten.
She did not know the source of the language used in the letters.
Defendant testified she thought plaintiff did not act in Adele's best
interest. He arranged for Adele to have the MMR vaccine without discussing
this with a specialist or with her.
A-1493-20 10 On cross-examination, defendant testified she did not recall if she was
vaccinated before she came to the United States when she was twenty.
Defendant opposed vaccinations based upon their safety and efficacy. She also
opposed the manner that vaccines were produced, which was against her
religious views. She asserted that her moral and religious views about vaccines
are intertwined. Plaintiff acknowledged she said previously that vaccines will
be declared a crime against humanity and a gross violation of human rights.
Plaintiff testified she had religious beliefs against vaccinations from a very
young age. Despite this, she did not think she asked for a religious exemption
for herself when she immigrated to the United States. She did not apply for a
religious exemption when she went to college, and she had breast implant
surgery in 2011.
Plaintiff testified he married defendant in 2005. They never discussed
vaccinations until defendant was pregnant with Adele. He was raised as a
Catholic. He testified defendant is an atheist. Although they often discussed
the topic of vaccinations, the issue of a religious objection never came up. He
never heard defendant raise a religious based objection to vaccinations. Plaintiff
testified he was never against vaccinating Adele. He simply was submissive to
defendant's position on this.
A-1493-20 11 Plaintiff testified that the subject of vaccination for Adele was raised
during their divorce mediation. He agreed to delay vaccinations to keep the
peace. The wording in the 2015 religious exemption letter came from a realtor
they both knew who suggested using the letter because it was "bulletproof."
Plaintiff testified the letters did not reflect the religious beliefs of plaintiff or
defendant. Both letters were a "fraud" to get Adele in school.
Plaintiff testified he wants Adele to be vaccinated because vaccines are
safe and effective. He believes it is in Adele's best interest to receive medically
recommended vaccinations. In the fifteen years he was with defendant, she
never raised a sincere religious concern about vaccinating the child. He testified
she only raised religious concerns in court.
D.
On January 21, 2021, the trial court denied defendant's motion to prevent
plaintiff from vaccinating Adele. It appointed plaintiff as limited medical
guardian for immunization purposes only.
In its written decision, the Family Part judge noted both parties supported
their arguments with expert testimony. However, the court found "the two
medical experts are in equipoise and did not aid the court in finding for or against
[d]efendant's application to enjoin [p]laintiff from immunizing [Adele] . . . ."
A-1493-20 12 With respect to defendant's expert, the court found his methodology was
"lacking" because he did not interview plaintiff about his family medical history ,
conduct additional testing of Adele, or review the records from her pediatrician.
He did not identify the cause of any potential autoimmune problem or the risk
posed to Adele "by identifying the percentage of people who have serious
reactions to immunizations who are similarly situated to [Adele]." The court
found Dr. Brawer's testimony "fell far short in demonstrating . . . that there is a
discernable risk to the minor child in having a serious adverse reaction to
immunization."
The trial court found that plaintiff's medical expert was credible, but he
did not have the knowledge about vaccine-related injuries that would permit the
court to conclude there was no risk to the child from the immunization. The
doctors agreed, however, that immunizations are "very important in preventing
and defending against serious diseases," most people "do not experience serious
adverse effects," Adele did not have a negative reaction to vaccines except for
the disputed rash and she recovered from other illnesses without a reoccurrence
of ITP, and that "in general, vaccines provide health benefits."
The court considered the case under the best interests of the child standard
in N.J.S.A. 9:2-4. It found that defendant "failed to demonstrate . . . there is a
A-1493-20 13 significant risk of [Adele] experiencing a recurrence of ITP if immunized." The
court also found there was only a "[three to five percent] chance of serious
vaccine injury to the minor child." Thus, "solely in a medical context," the court
found it was in Adele's best interest to appoint one parent as the sole decision
maker for immunizations. The court denied defendant's application to enjoin
Adele from being immunized for medical reasons because using a best interest
of the child analysis, "the benefits of immunization outweigh the potential risks
to [Adele]."
Defendant asserted a religious exemption under N.J.S.A. 26:1A-9.1. She
admitted she did not assert any religious exemption against vaccination when
she immigrated to the United States or when she was admitted to college, even
though proof of vaccination was required for both. Defendant personally did
not recall if she was vaccinated. She said the issue of vaccination did not occur
to her prior to the child's birth.
The trial court did not find defendant to be a credible witness. It explained
that defendant was "combative," contradicted herself, "changed her testimony
when pressed" and delayed in answering. She "experienced convenient
forgetfulness[,] . . . [and] lied on innocuous points." The court found defendant
"engaged in a revisionist history of her relationship with [p]laintiff, her belief
A-1493-20 14 and use of the religious exemption and lied about inconsequential facts . . . . Her
level of inconsistency and lack of candor to this court demonstrate that she is
not a believable witness." The court concluded that its decision "results from
[d]efendant's shear [sic] lack of credibility."
The court found plaintiff's testimony was "very credible." He was not
evasive in his answers nor exaggerated. The court required defendant to bear
the burden of proof that it was in the child's best interest not to be immunized
and that this was based on religious reasons.
The trial court found that N.J.S.A. 26:1A-9.1 and applicable regulations
did not apply in this type of case, where the dispute is between former spouses
with co-equal custodial rights who disagree about vaccination. It concluded the
best interest of the child standard required it to make "full findings of fact" and
to do so required inquiry into defendant's assertion of an exemption based on
religion.
The trial court found it was appropriate, in accord with federal case law,
to adopt a sincerity analysis. The court found defendant was inconsistent in her
religious beliefs and her practices. It found defendant changed her story several
times, had a selective memory and lacked candor. The court was "left with the
impression that [defendant was] hiding behind a falsehood of religious doctrine
A-1493-20 15 in order to further a philosophical and moral stance." She "avoided questions,
contradicted herself on several occasions, demonstrated selective memory and
outright lied to this court during her testimony." Therefore, the trial court found
her not to be "truthful with regard to her religious beliefs," which was the basis
for her argument that she should decide whether the child should be vaccinated.
The court considered the child's best interest. Neither expert
demonstrated whether immunizing Adele exposed her to a serious risk, would
injure her or cause ITP. The court found that the child should be immunized "for
her protection and the protection of others." However, the trial court also was
concerned with defendant's First Amendment rights to free exercise of her
religion. The court resolved what it perceived as the conflict between the two
by applying the federal sincerity test and then the best interest standard. The
court found defendant lacked "sincerity and consistency" in her claim of
religious freedom. The court also found the medical experts agreed there was a
small chance of a reoccurrence of ITP and overall that vaccines were safe and
effective. As such, it concluded it was appropriate for the child to be vaccinated
and appointed plaintiff as sole guardian for immunization purposes. The court
stayed its decision for ten days to permit an appeal.
A-1493-20 16 E.
Defendant requested emergent relief, which we granted on February 11,
2021. We also stayed the Family Part orders pending appeal.
On appeal defendant raises these issues:
POINT I: THE TRIAL COURT ERRED IN ITS FACTUAL FINDINGS AND ABUSED ITS DISCRETION IN HOLDING THAT THE TWO MEDICAL EXPERTS WERE IN EQUIPOISE.
POINT II: THE TRIAL COURT ERRED IN APPLYING THE INCORRECT STANDARD, OF A "SINCERITY TEST," WHICH WAS A MISAPPLICATION OF THE NEW JERSEY RULES OF EVIDENCE, AND VIOLATIVE OF DEFENDANT'S FUNDAMENTAL CONSTITUTIONAL RIGHTS.
POINT III: IN THE ALTERNATIVE, IF A "SINCERITY TEST" APPLIES, THE TRIAL COURT ERRED IN ITS FACTUAL FINDINGS SINCE THERE WAS NOT SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT ITS DECISION THAT DEFENDANT'S ASSERTION OF THE RELIGIOUS EXEMPTION WAS NOT SINCERE.
POINT IV: THE TRIAL COURT ERRED BY HOLDING THAT THE BEST INTEREST OF THE CHILD STANDARD, SET FORTH IN N.J.S.A. 9:2-4, OUTWEIGHS DEFENDANT'S FUNDAMENTAL RIGHT TO FREEDOM OF RELIGION.
POINT V: THE TRIAL COURT ERRED IN ITS FACTUAL FINDINGS IN CHOOSING PLAINTIFF
A-1493-20 17 AS THE PARENT FOR SOLE DECISION MAKING REGARDING VACCINATIONS.
POINT VI: THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE PLAINTIFF’S EXHIBIT 21.
POINT VII: IN THE ALTERNATIVE, REQUEST THAT THE APPELLATE DIVISION MAKE A FACT FINDING AS TO DR. BRAWER’S MEDICAL EXEMPTION.
POINT VIII: AS A CASE OF FIRST IMPRESSION, DEFENDANT PROPOSES THAT THE STANDARD SHOULD BE IF ONE PARTY/PARENT ASSERTS THE EXEMPTION, THEN IT MUST BE ADHERED TO FOR THE CHILDREN AT ISSUE.
II.
We accord "great deference to discretionary decisions of Family Part
judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(citations omitted), in recognition of the "family courts' special jurisdiction and
expertise in family matters." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201
N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We
are bound by the trial court's factual findings so long as they are supported by
sufficient credible evidence. N.J. Div. of Youth & Fam. Servs. v. M.M., 189
N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188
(App. Div. 1993)). We afford a deferential standard of review to the factual
A-1493-20 18 findings of the trial court on appeal from a bench trial. Rova Farms Resort, Inc.
v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). These findings will not be
disturbed unless they are "so manifestly unsupported by or inconsistent with th e
competent, relevant and reasonably credible evidence as to offend the interests
of justice . . . ." Id. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.
Super. 154, 155 (App. Div. 1963)). However, "[a] trial court's interpretation of
the law and the legal consequences that flow from established facts are not
entitled to any special deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26
(2014) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995)).
We conclude there was substantial credible evidence in the record to
support the court's findings that it was in the child's best interest to appoint
plaintiff as sole decision maker regarding vaccinations. This matter was before
the trial court on defendant's motion to change custody and to enjoin plaintiff
from having Adele further vaccinated based on medical and religious grounds.
Plaintiff filed a cross-motion to award him sole legal authority to make these
decisions.
In a child custody case, the best interests of the child are a paramount
consideration. Beck v. Beck, 86 N.J. 480, 497 (1981). The court should seek
A-1493-20 19 to advance these interests when the parents "are unable to agree on the course to
be followed." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978). What
is in the child's best interest may have the effect of limiting parental rights. See
Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). When the parties submit their
disputes to the Family Part, the court may "impair to some extent one of the
parties' parental rights," and in such cases "the sole benchmark is the best
interests of the child." Id. at 79-80.
A court should consider several factors in determining custody
arrangements. N.J.S.A. 9:2-4(c). "[U]nder a joint custody arrangement, legal
custody — the legal authority and responsibility for making 'major' decisions
regarding the child's welfare — is shared at all times by both parents." Id. at 81
(quoting Beck, 86 N.J. at 486-87). Although the rights of joint custodians are
equal, a court can order sole custody to one parent or "[a]ny other custody
arrangement as the court may determine to be in the best interests of the child."
N.J.S.A. 9:2-4(c). We review the Family Part judge's determination to
determine if there was substantial credible evidence in the record. Cesare, 154
N.J. at 411.
Defendant contends that because she asserted an objection to vaccinating
Adele based on religious grounds, the best interest of the child standard does not
A-1493-20 20 apply. We reject that argument on multiple grounds starting — in this case —
with the language of the parties' MSA, where they agreed in section 5.1 that
"their daughter's best interest is paramount."
Settlement agreements in matrimonial cases are contracts that should be
enforced as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642
(1981); see also Lepis v. Lepis, 83 N.J. 139, 146 (1980) (matrimonial settlement
agreements are enforceable "to the extent that they are just and equitable"
(quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960))). "A settlement
agreement is governed by basic contract principles." Quinn v. Quinn, 225 N.J.
34, 45 (2016) (citing J.B. v. W.B., 215 N.J. 305, 326 (2013)). In interpreting
and enforcing a settlement agreement, a court is to "discern and implement the
intentions of the parties." Ibid. (citation omitted).
The trial testimony revealed that plaintiff and defendant submitted a letter
to Adele's pre-school in 2015 claiming a religious exemption from vaccination.
Then when they negotiated the MSA, the issue of vaccinations was disputed.
The fact that the parties chose the best interest standard for their MSA and said
it was paramount shows this is the standard they intended to apply in custodial
decisions involving Adele. The judge did not err in applying the best interest
standard considering their MSA.
A-1493-20 21 Defendant contends that vaccination is not in the medical best interest of
Adele. Defendant relied on Dr. Brawer's testimony that Adele had a "diathesis"
or tendency to autoimmune problems and she was at "high risk for a life-
threatening auto immune problem . . . ." Dr. Lopez-Bernard testified that Adele
was very healthy. She was no longer suffering from ITP. She had tolerated the
vaccinations, and the skin rash was not related to vaccination.
We do not find the trial court erred in evaluating the testimony of the
expert witnesses. A finder of fact can accept or reject the testimony of any
party's expert or accept only a portion of an expert's opinion. Brown v. Brown,
348 N.J. Super. 466, 478 (App. Div. 2002). "[T]he weight to be given to the
evidence of experts is within the competence of the fact-finder." LaBracio Fam.
P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 165 (App. Div. 2001).
As a reviewing court, we should "defer to the trial court's assessment of expert
evaluations." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212,
221 (App. Div. 2013).
The court found shortcomings with the medical history and methodology
testified to by Dr. Brawer. He did not speak with plaintiff about his health but
relied on what defendant told him. He did not review Dr. Lopez-Bernard's
records or speak with him even though he was Adele's pediatrician. He did not
A-1493-20 22 conduct any independent medical testing of Adele to support his conclusi ons
about her health. His diagnosis of Adele's rash was made based on a photograph
rather than an actual examination, as Dr. Lopez-Bernard had done. He could
not identify the cause of any potential autoimmune condition that applied in
Adele's case or whether others like Adele had serious reactions from
vaccinations.
Dr. Lopez-Bernard is Adele's pediatrician. Although he saw Adele's rash
first-hand, it was clear from his testimony he did not have an expertise in vaccine
related injuries. He testified from his own experiences in giving vaccinations.
Both experts testified about the efficacy of vaccinations.
We cannot say based on this record that the trial court erred by finding the
experts in equipoise on the issue of defendant's application to enjoi n plaintiff
from having Adele receive additional vaccinations. The trial court found
shortcomings with both experts. However, where they agreed, it relied on their
opinions in assessing the child's best interest. Both experts testified about the
importance of vaccines in preventing serious diseases. 2 Although the parties
2 "We recognized almost sixty years ago that 'vaccination and immunization are effective health measures, reasonably related to and necessary for the public health, safety and welfare.'" N.J. Div. of Child Prot. and Permanency v. J.B., 459 N.J. Super. 442, 455-56 (App. Div. 2019) (quoting Bd. of Educ. of Mountain
A-1493-20 23 stipulated vaccines can cause death, the doctors testified that most people do not
have serious adverse effects. No one testified that Adele's ITP was the result of
vaccinations. The trial court found Dr. Brawer’s testimony did not show there
was a "discernible increased risk to [Adele] in having a serious adverse reaction
to immunization" and that defendant had not met her burden. Taking all this
into consideration, the court concluded that it was in the child's best interest for
plaintiff to decide issues involving vaccinations for Adele. There was
substantial credible evidence in the record to support that order.
Defendant contends she is opposed to vaccinations on religious grou nds.
She argues a court should not evaluate the sincerity by which she holds and
asserts this right, and that once asserted, it requires that Adele shall not be
vaccinated even if plaintiff's wishes are to the contrary. If a sincerity test were
to apply, defendant argues the trial court misapplied it because there was not
enough evidence to determine her sincerity. Defendant argues that a "sincerity"
analysis of her religious-based objection to vaccination is precluded by N.J.S.A.
26:18-9.1.
Lakes v. Maas, 56 N.J. Super. 245, 258 (App. Div. 1959), aff'd o.b., 31 N.J. 537 (1960)). A-1493-20 24 We disagree with defendant's arguments. The religious exemption under
N.J.S.A. 26:1A-9.1 does not apply.
The statute provides:
Provisions in the State Sanitary Code in implementation of this act shall provide for exemption for pupils from mandatory immunization if the parent or guardian of the pupil objects thereto in a written statement signed by the parent or guardian upon the ground that the proposed immunization interferes with the free exercise of the pupil's religious rights. This exemption may be suspended by the State Commissioner of Health during the existence of an emergency as determined by the State Commissioner of Health.
[N.J.S.A. 26:1A-9.1 (emphasis added).]
By its express language, the statute concerns the attendance of children at
school who have not been vaccinated. It does not address the situation presented
here, involving parents with equal custodial rights who do not agree about the
medical treatment of their child. Defendant has not cited any legal authority
that applies the statute in this context. Defendant's citation to a memorandum
issued by the DOH — which suggests the requested exemption should not be
questioned by the school district that receives it — is not controlling on the
court. The memorandum is at best an expression of that agency's policy; it does
A-1493-20 25 not constitute a best interest analysis when one parent seeks sole custody to
make decisions regarding immunizations.
Defendant argues her assertion of the religious exemption cannot be
analyzed for sincerity because it is a fundamental right. This argument does not
fully appreciate the basis for the court's order. The trial court's order, appointing
plaintiff as the sole parent for vaccination decisions, was rooted in its
determination that defendant's testimony lacked credibility. In its judgment,
defendant simply was not a credible witness.
We defer to the court's credibility findings. We do not disturb them unless
they are "manifestly unsupported by or inconsistent with" the competent
evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988). "Because a trial court
'hears the case, sees and observes the witnesses, [and] hears them testify,' it has
a better perspective than a reviewing court in evaluating the veracity of
witnesses." Cesare, 154 N.J. at 412 (alterations in original) (other citations
omitted) (quoting Pascale, 113 N.J. at 33).
The trial court did not abuse its discretion in determining credibility. It
thoroughly supported its findings based on defendant's delay in answering
questions, avoidance of other questions, and answers that showed a selective
memory or that went beyond the scope of the question to support her position.
A-1493-20 26 The court noted defendant seemed flustered at times on questions she should
have been able to answer and experienced "convenient forgetfulness" on
questions about religious continuity and sincerity. The court also concluded she
"lied on innocuous points."
Although the trial court determined that defendant lacked "sincerity and
consistency" in her claim about the religious basis of her objection to
vaccinations, we believe this case can be resolved based on the court's credibility
determination. Defendant was found not to be a credible witness. The trial court
determined the child's best interest in reliance on testimony that it found to be
credible. Arguably, there was no necessity to evaluate the sincerity of
defendant's assertion of her religious beliefs when she simply was not a credible
witness.
That said, we do not agree with defendant's argument that the trial court
was without the ability to review her claim for sincerity because it is based on
religion. The free exercise clause "does not protect all deeply held beliefs
. . . ." Africa v. Pa., 662 F.2d 1025, 1034 (3d Cir. 1981). "To fall within the
purview of the Free Exercise Clause, a claimant must possess a sincere religious
belief." DeMarco v. Davis, 914 F.3d 383, 388 (5th Cir. 2019). An assertion of
a First Amendment religious freedom claim may be broken down into two
A-1493-20 27 threshold requirements. "A court's task is to decide whether the beliefs avowed
are (1) sincerely held, and (2) religious in nature, in the claimant's scheme of
things." Africa, 662 F.2d at 1030 (citation omitted). That is, the belief must be
"based upon what can be characterized as theological, rather than secular -- e.g.,
purely social, political or moral views." Stevens v. Berger, 428 F. Supp. 896,
899 (E.D.N.Y. 1977).
As the Supreme Court observed in United States v. Seeger, 380 U.S. 163,
185 (1965), the "significant question" is whether a belief is "truly held." "This
is the threshold question of sincerity which must be resolved in every case."
Ibid. It is not the task "for a reviewing court to attempt to assess the truth or
falsity of an announced article of faith." Africa, 662 F.2d at 1030.
"[A]n adherent's belief would not be 'sincere' if he acts in a manner
inconsistent with that belief." Int'l Soc. for Krishna Consciousness, Inc. v.
Barber, 650 F.2d 430, 441 (2d Cir. 1981) (citing Dobkin v. D. C., 194 A.2d 657
(D.C. 1963)). In Wis. v. Yoder, 406 U.S. 205, 215 (1972), the Court made clear
that the Constitution did not protect views which were "based on purely secular
considerations," but only those which were "rooted in religious belief."
The trial court's determination that defendant lacked sincerity in her claim
about the religious basis of her objection was supported by the record. The court
A-1493-20 28 highlighted inconsistencies in defendant's testimony. She could not remember
if she was vaccinated or if she claimed a religious exemption when she
immigrated or attended college. She had not asserted a religious exemption
during the divorce or when she spoke with Dr. Lopez-Bernard. The language in
the 2015 and 2018 letters was from another source and not from defendant. Her
testimony about an aversion based on religion to injecting foreign substance into
her body was inconsistent with her breast augmentation surgery. Defendant
expressed moral and philosophical objection to vaccinations, likening them to
violations of human rights.
The trial court's decision was not based on a misapplication of the Rules
of Evidence. New Jersey Rule of Evidence 610 provides that "[e]vidence of a
witness' religious beliefs or opinions is not admissible to attack or support the
witness' credibility." N.J.R.E. 610. This Rule "does not exclude proof of
religious beliefs or opinions when offered for another purpose that is material to
an issue in the action." 1991 Supreme Court Committee Comment to N.J.R.E.
610 (citing In re Conroy, 98 N.J. 321, 361-62 (1985)). Another Evidence Rule
provides that a person has a privilege not "to disclose his theological opinion or
religious belief unless his adherence or nonadherence to such an opinion or
A-1493-20 29 belief is material to an issue in the action other than that of his credibility as a
witness." N.J.R.E. 512.
Defendant sought appointment as Adele's sole medical guardian for
vaccinations allegedly because of her religious beliefs regarding vaccinations.
Her assertion of religious opinions or beliefs, therefore, was material to the issue
to be decided by the court. Testimony about the sincerity of her religious
objection was not elicited as a blanket attack on her credibility based on the truth
of her religious beliefs. Rather, the testimony was elicited to examine the
material issue of whether her religious views against vaccinations were sincere
or whether they were pretextual. The trial court did not abuse its discretion
under either evidence rule by allowing such testimony.
Our careful review of the record shows there was substantial credible
evidence for the court's findings. Defendant lacked credibility. She lacked
sincerity and consistency in her assertion of her religious exemption. The
experts agreed that overall vaccines are safe and effective and there was a small
chance Adele's ITP would reoccur. Therefore, we affirm the order appointing
plaintiff as limited medical guardian for immunization purposes. We also
conclude that defendant's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
A-1493-20 30 Affirmed.
A-1493-20 31