In re: QH ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-MAY-2021
08:32 AM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE MATTER OF QH
(FC-S NO. 19-00164)
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Appellant Father (Father) appeals from the Orders
Concerning Child Protective Act, filed on January 10, 2020, in
the Family Court of the First Circuit (Family Court).1
On appeal, Father challenges Findings of Fact (FOF)
Nos. 47, 50, 51, 52, 53, 57, 58, and 59, but does not provide a
specific argument as to each finding of fact.2 Instead, Father
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The Honorable John C. Bryant, Jr. presided.
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The Family Court's findings that Father purports to challenge are as
follows:
47. Dr. Hallett credibly testified that there is no
underlying medical condition that would or should preclude
the Child from receiving the standard, age-appropriate
vaccines.
. . .
50. Any medical procedure carries a risk of harm,
however the court adopts Dr. Hallett's credible opinion that
the benefits of standard, age-appropriate vaccines outweigh
any potential risks.
51. The over-riding consideration of the Court is
the Child's best interest and receiving the standard, age-
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
argues generally that the Family Court erred by ordering his
child, Q.H., who is in foster custody, to receive immunizations
without his consent.
Appellee Guardian Ad Litem for Q.H. (Guardian Ad Litem)
asserts, as a threshold matter, that this appeal is moot because
the immunizations for Q.H. ordered by the Family Court have
already occurred. The Guardian Ad Litem further argues that,
should we reach the merits, the Family Court properly entered the
order for Q.H. to be immunized.
Appellee State of Hawai#i, Department of Human Services
(DHS) contends that the Family Court properly entered the order
for Q.H. to receive the specified immunizations.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's point of error as follows, and we affirm the
Family Court.
We first address the Guardian Ad Litem's assertion that
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(...continued)
appropriate vaccines is in the Child's best interest and
also in the interest of the community at large.
52. It is in the Child's best interest to enjoy the
long-term health benefits that accrue from receiving
vaccinations.
53. Dr. Hallett was a credible witness, and the
Court accepts her testimony in whole.
. . .
57. Father did not adduce any credible evidence that
the Child's health would be endangered by the vaccinations
sought to be administered.
58. The testimony by Father, while sincere, was not
credible as it pertained to vaccinations.
59. Notwithstanding Father's objection to an order
requiring the DHS to provide its consent to vaccinate the
Child, and even though the DHS stated that it defers to
Father's position, the Court ordered the DHS to provide its
consent for the standard, age-appropriate vaccines as
credibly testified to by Dr. Hallett, to wit, DTaP; Hep B;
IPV; HiB; PVC and Influenza.
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
this appeal is moot. We conclude that the "capable of
repetition, yet evading review" exception to mootness (CRER
exception) applies in this appeal. As set forth by the Hawai#i
Supreme Court:
The phrase, "capable of repetition, yet evading review,"
means that "a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit."
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5, 193 P.3d
839, 843 (2008) (quoting In re Thomas, 73 Haw. 223, 226–27, 832
P.2d 253, 255 (1992)). Given that the issue on appeal deals with
the authority of the Family Court to order age-appropriate
vaccinations to Q.H., there is a reasonable expectation that this
factual situation would recur as Q.H. ages, so long as Q.H.
remains in foster custody. See generally id. at 6, 193 P.3d at
844. Q.H. was born in July 2019, and was a newborn when taken
into the custody of DHS and then entered into foster custody.
There is nothing in the record to indicate that Q.H. is no longer
in foster custody.
With regard to the merits of Father's appeal,
"[g]enerally, the family court possesses wide discretion in
making its decisions and those decision[s] will not be set aside
unless there is a manifest abuse of discretion." Fisher v.
Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006). Further,
on appeal, the Family Court's findings of fact are reviewed under
the clearly erroneous standard, while the Family Court's
conclusions of law are reviewed de novo. Id.Father cites to Hawaii Revised Statutes (HRS) § 325-
34(Supp. 2020)3 and claims the State recognizes his right to not
3
HRS § 325-34 states:
§325-34 Exemptions. Section 325-32 shall be
construed not to require the vaccination or immunization of
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
have his child vaccinated. Specifically, Father argues that
HRS § 324-35 provides a religious exemption for children who do
not receive vaccinations to attend public school, and that there
is no law mandating vaccination of all children.
After DHS was granted foster custody of Q.H., which is
not in dispute, DHS had the right and duty to provide consent to
ordinary medical care. HRS § 587A-15(b)(5) (2018).4 Under
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(...continued)
any person for three months after a duly licensed physician,
physician assistant, advanced practice registered nurse, or
an authorized representative of the department of health has
signed two copies of a certificate stating the name and
address of the person and that because of a stated cause the
health of the person would be endangered by the vaccination
or immunization, and has forwarded the original copy of the
certificate to the person or, if the person is a minor or
under guardianship, to the person's parent or guardian, and
has forwarded the duplicate copy of the certificate to the
department for its files.
No person shall be subjected to vaccination,
revaccination or immunization, who shall in writing object
thereto on the grounds that the requirements are not in
accordance with the religious tenets of an established
church of which the person is a member or adherent, or, if
the person is a minor or under guardianship, whose parent or
guardian shall in writing object thereto on such grounds,
but no objection shall be recognized when, in the opinion of
the director of health, there is danger of an epidemic from
any communicable disease.
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HRS § 587A-15(b) states in relevant part:
[§ 587A-15]. Duties, rights, and liability of
authorized agencies.
. . .
(b) If an authorized agency has foster custody it
has the following duties and rights:
. . .
(5) Providing required consents for the
child's physical or psychological health
or welfare, including ordinary medical,
dental, psychiatric, psychological,
educational, employment, recreational, or
social needs[.]
. . .
The court, in its discretion, may vest foster custody
of a child in any authorized agency or subsequently
authorized agencies, if the court finds that it is in the
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HRS § 587A-15(c)(2), Father only retained the right to consent,
or withhold consent, for major medical care or treatment while
Q.H. was in foster custody. "The rights and duties that are so
assumed by an authorized agency shall supersede the rights and
duties of any legal or permanent custodian of the child."
HRS § 587A-15(b). Father does not challenge Conclusion of Law
Nos. 8 and 9 which held DHS had the authority to consent to
vaccinations for children in foster custody and had the duty and
right to provide consent for ordinary medical care, which
included age-appropriate vaccinations, pursuant to HRS § 587A-
15(b)(5). Because the Family Court determined age-appropriate
vaccinations constituted ordinary care, DHS was required to
consent to age-appropriate vaccinations. Although Father
challenges Finding of Fact No. 59, he provides no argument why
the DTaP, Hep B, IPV, HiB, PVC, and Influenza vaccines are not
age-appropriate for Q.H.
Furthermore, Father's reliance upon HRS § 325-34 is
misplaced because it is inapplicable. Father specifically relies
upon the second paragraph of HRS § 325-34 which, in the context
of Department of Health rules governing immunizations under
HRS § 325-32, provides that a minor is not subject to
vaccination if the minor's parent objects on grounds it is not in
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(...continued)
child's best interests to do so. The rights and duties that
are so assumed by an authorized agency shall supersede the
rights and duties of any legal or permanent custodian of the
child.
(c) Unless otherwise provided in this section or as
otherwise ordered by the court, a child's family shall
retain the following rights and responsibilities after a
transfer of temporary foster custody or foster custody, to
the extent that the family possessed the rights and
responsibilities prior to the transfer of temporary foster
custody or foster custody:
. . .
(2) The right to consent to adoption, to marriage,
or to major medical or psychological care or
treatment[.]
(Emphases added).
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accordance with religious tenets of an established church of
which the person is a member or adherent. However, Father did
not object on religious grounds to Q.H. being vaccinated. His
objection was based on his contention that the risks associated
with the vaccines outweighed the benefits of receiving them.
HRS § 325-34 also is inapplicable to this case because the Family
Court's order that DHS consent to immunize Q.H. was not because
the vaccines were mandated by the Department of Health under
HRS § 325-32. Rather, the Family Court based its decision on the
best interest of Q.H. given the testimony by Dr. K. Brooke
Hallett in this case, which the Family Court found credible.
Given the record in this case, the Family Court did not
clearly err in its findings and did not abuse its discretion in
ordering the specified age-appropriate vaccines for Q.H.
Therefore, IT IS HEREBY ORDERED that the Orders
Concerning Child Protective Act, filed on January 10, 2020, and
the Findings of Fact and Conclusions of Law, filed on
February 20, 2020, in the Family Court of the First Circuit, are
affirmed.
DATED: Honolulu, Hawai#i, May 14, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Herbert Y. Hamada,
for Father-Appellant. /s/ Katherine G. Leonard
Associate Judge
Abigail S. Dunn Apana,
Julio Cesar Herrera, /s/ Keith K. Hiraoka
Deputy Attorneys General, Associate Judge
for Petitioner-Appellee.
Michelle K. Moorhead,
Guardian Ad Litem.
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