Danielle Nicole Burch v. Paul Franklin Lipscomb ( 2021 )

RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0614-ME
DANIELLE BURCH APPELLANT
APPEAL FROM ANDERSON CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 20-CI-00149
PAUL LIPSCOMB APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
ACREE, JUDGE: Danielle Burch (Mother) appeals the Anderson Family Court’s
May 24, 2021, Findings of Fact, Conclusions of Law, and Order requiring her
children to be vaccinated. Mother objected to vaccinating her children based on
her religious convictions, while joint custodian Paul Lipscomb (Father) desired that
his children be vaccinated. Mother contends the family court violated her religious
freedom and beliefs. Finding no error, we affirm.
BACKGROUND
The parties divorced on June 15, 2018. In accordance with the decree
of dissolution, they share joint custody and equal timesharing of their two minor
children, aged eight and six. Throughout their marriage, and through the divorce
proceedings, the parties agreed to decline required immunizations for their children
on religious grounds. They had executed affidavits in New York and Georgia
declining vaccinations for their children on religious grounds. On October 12,
2018, after their divorce, both parties executed the Commonwealth of Kentucky’s
form for declining immunizations on religious grounds.
However, two years later, on June 30, 2020, Father filed a motion for
an order permitting him to vaccinate the children. Mother objected, and a hearing
was conducted by the Anderson Family Court to resolve the question.
At the hearing, Father testified that he originally agreed not to
vaccinate the children because he was leaving for deployment with the military and
was unable to meet with the pediatrician. He thought there was an understanding
the parties would just delay the vaccines. But, after he finished his military
service, he began discussions with Mother regarding vaccinations for the children.
Father stated that when he signed the vaccination declination affidavit
he had doubts about the development of certain vaccines by use of aborted fetal
cells. Now he believes the use of aborted fetal cells is so far removed from the
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process of developing vaccines that his concerns no longer exist. He believes it is
appropriate to vaccinate the children. He wants to follow the advice of the
children’s pediatrician to vaccinate.
Mother vehemently objects. She argues doing so violates her firmly
held religious convictions opposing the use of aborted fetal cells in the
manufacture and design of the vaccines. Rather, she accepts the propriety and
efficacy of, and prefers, using medication and antibiotics to treat her children.
Mother argues there was an understanding between her and Father that the children
should not be vaccinated and produced multiple documents the parties signed to
that effect.
The family court found it was in the children’s best interest to be
vaccinated. It reasoned that, on balance, the children’s health and welfare
outweighed the religious beliefs of one parent. The court ordered that the parties
consult with the pediatrician to craft a “catch-up” schedule bringing the children
current on vaccinations and other immunizations, or, if the parties were able, to
agree to alternative vaccines that could potentially be utilized that do not use
aborted fetal cells in their development and design. This appeal followed.
STANDARD OF REVIEW
At the outset we note the overriding principle, as correctly determined
by the family court, that the best interest of each child must be served by the family
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court’s decision. Burchell v. Burchell, 684 S.W.2d 296, 300 (Ky. App. 1984). As
to what constitutes the best interest of the child, this Court reviews any factual
findings under the clearly erroneous standard; any decisions based upon said facts
are reviewed under an abuse of discretion standard. See 1 RALPH S.
PETRILLI, KENTUCKY FAMILY LAW § 26.22 (1988) (citing Largent v. Largent, 643
S.W.2d 261 (Ky. 1982)).
ANALYSIS
Mother argues the family court erred by ordering her children
vaccinated against her religion-based opposition. She takes the position that the
family court did not articulate any detriment or risk of harm to her children by not
vaccinating them. Father responds by arguing Mother’s religious freedoms should
not take precedence over his.
Citing Kentucky law, Mother argues the family court cannot order
“immunization[s] of any child whose parents or guardian are opposed to medical
immunization against disease, and who object by a written sworn statement . . .
based on religious grounds[.]” Kentucky Revised Statute (KRS) 214.036(1)(b).
However, Father responds that the statute refers to the plural “parents,” not the
singular. He therefore argues that when one parent objects, and the other parent
does not, the court must decide. We agree because this is in harmony with our
family law jurisprudence.
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Jurisprudence in this area already takes into account the
constitutionally protected rights of parents to raise their children free of undue
governmental interference. Troxel v. Granville, 530 U.S. 57, 72-73, 120 S. Ct.
2054, 2064, 147 L. Ed. 2d 49 (2000). The cautions and generally applicable
safeguards of that jurisprudence embrace Mother’s specific claim under the First
Amendment to the federal Constitution. “[T]he legislature imposed
constitutionally tailored limits on the courts’ power and authority by enacting
various provisions of KRS Chapter 403.” Gonzalez v. Dooley, 614 S.W.3d 515,
521 (Ky. App. 2020).
The starting point is that these constitutionally protected “right[s] and
liberty interest[s] necessarily exist coterminously, and jointly, in two people – the
child’s mother and the child’s father.” Id. at 520. Here, we have an impasse
between Mother and Father and our jurisprudence addresses such circumstances.
“[A] family court properly exercising its jurisdiction has the inherent
ability to ‘break the tie’ when joint custodians cannot agree.” Id. at 521 (citations
omitted). Furthermore, once the courts are involved, “equal decision-making
power is not required for joint custody, and parties or trial courts are free to vest
greater authority in one parent even under a joint custody arrangement.” Fenwick
v. Fenwick, 114 S.W.3d 767, 776 (Ky. 2003), superseded by statute on other
grounds as stated in Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky. App.
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2004), overruled on other grounds by Frances v. Frances, 266 S.W.3d 754 (Ky.
2008). The resolution process is clear.
If, as in the instant case, the parties to a joint custody
agreement are unable to agree on a major issue concerning
their child’s upbringing, the trial court, with its continuing
jurisdiction over custody matters, must conduct a hearing
to evaluate the circumstances and resolve the issue
according to the child’s best interest. Once the parents
have abdicated their role as custodians to the trial court, its
decision is binding on the parties until it is shown that the
decision is detrimental to the child physically or
emotionally, or is no longer in his best interest.
Burchell, 684 S.W.2d at 300.
Because Mother and Father, as joint custodians, failed to agree on this
consequential issue concerning medical decisions for their children, Father
engaged the court and asked that it perform its role. The family court did conduct
the hearing as required, heard testimony from both Mother and Father, and found
that it would be in the children’s best interest to be vaccinated in accordance with
their pediatrician’s recommendations and Centers for Disease Control and
Prevention (CDC) guidelines. The family court noted that the health and welfare
of the children is this “[c]ourt’s priority even when balanced against the
proclaimed religious beliefs of one parent.” (Trial Record 408.)
Under analogous circumstances involving First Amendment
objections by one parent, this Court reached the same conclusion. Young v.
Holmes, 295 S.W.3d 144 (Ky. App. 2009). In Young, as in this case, the family
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court made an informed decision after a hearing that was based on the children’s
best interest. We cannot say the family court’s factual findings lacked the support
of substantial evidence, and we cannot conclude that it made any legal error in
reaching its decision.
CONCLUSION
The Anderson Family Court’s May 24, 2021, Findings of Fact,
Conclusions of Law, and Order is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Tamara Combs Ann D’Ambruoso
Lexington, Kentucky Lexington, Kentucky
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