In re Matthew M.

Filed 3/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MATTHEW M., a Person B319258
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No.
20CCJP06478A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTINA P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Nichelle L. Blackwell, Juvenile Court
Referee. Affirmed.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
______________________________
In early November 2021, over the objection of 12-year-old
Matthew M.’s mother, the juvenile court authorized the
Los Angeles County Department of Children and Family Services
or the congregate care facility where Matthew was placed to
vaccinate the child against the SARS-CoV-2 virus once his
pediatrician approved. Several weeks later Matthew’s mother
asked the court to rescind its order, explaining in greater detail
her religious objection to Matthew receiving the COVID-19
vaccine. After an evidentiary hearing the juvenile court denied
the petition, finding insufficient evidence it was in the child’s best
interest not to be vaccinated. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petitions and Matthew’s
Placement at Five Acres
Matthew was detained from his father, Gabino M., and
released to his mother, Christina P., in early December 2020
after the Department filed a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a) (physical harm
inflicted nonaccidentally) and (b)(1) (failure to protect), 1 alleging
the child had been harmed or was at substantial risk of serious
physical harm because of his father’s physical abuse. The
petition also alleged that Matthew had demonstrated behavioral,
mental and emotional problems; had been diagnosed with bipolar
disorder, mood disorder and depression; and had been
1 Statutory references are to this code.
2
hospitalized in the past for psychiatric issues. It further alleged
that Gabino was limited in his ability to provide Matthew with
appropriate care and supervision, which placed the child at
substantial risk of serious physical harm. The juvenile court
sustained the petition on January 11, 2021, declared Matthew a
dependent child of the court, removed Matthew from Gabino’s
care and custody and ordered him released to Christina under
the supervision of the Department with family maintenance and
family preservation services.
On February 22, 2021 the Department filed a petition
pursuant to section 342 after Matthew had again been
hospitalized for psychiatric issues. The petition alleged,
pursuant to section 300, subdivision (b)(1), that, in addition to his
diagnoses of bipolar disorder, mood disorder and depression, as
set forth in the original section 300 petition, Matthew had
suicidal and homicidal ideation, poor impulse control and a
recent diagnosis of disruptive mood dysregulation, attention
deficit hyperactivity disorder (ADHD) and oppositional defiant
disorder (ODD), and that Christina was unable to provide
appropriate parental care and supervision. In particular, the
petition alleged Christina was unwilling to allow Matthew to
return to her home following his hospitalization on February 12,
2021. The court sustained the new petition on April 29, 2021,
removed Matthew from Christina’s care and ordered the
Department to provide family reunification services for Christina.
3
2. The Six-month Review Hearing
The Department on October 28, 2021 filed its status review
report for the six-month review hearing (§ 366.21, subd. (e)). The
Department explained that since the April 2021 section 342
disposition hearing Matthew had been cared for at the Five Acres
short-term residential therapeutic program (STRTP), a group
home, where he “had challenges in managing his aggression and
other negative behaviors.” Matthew’s then-current diagnosis was
disruptive mood dysregulation disorder. He was residing in a
Five Acres cottage and receiving “daily milieu therapy,” as well
as participating in group therapy and weekly individual
counseling to address antisocial behaviors. His medication
included Vyvanse (lisdexamfetamine), Lexapro (escitalopram)
and clonidine, managed and evaluated by a psychiatrist who saw
Matthew once a month. The report stated Matthew had twice
tested negative for COVID-19. There was no mention of
Matthew’s possible vaccination in the report. The Department’s
report recommended that Matthew remain a dependent of the
court in his current placement, with reunification services
continuing for Christina until the 12-month review hearing.
At the section 366.21, subdivision (e), hearing on
November 4, 2021, conducted remotely via WebEx and presided
over by a judicial court referee, 2 Christina submitted on the
Department’s recommendation to continue dependency
jurisdiction, including out-of-home placement, and family
2 As is customary, when filing both the section 300 and
section 342 petitions, the Department stated it was not
stipulating to a juvenile court referee acting as a temporary judge
and that it reserved its right to petition for rehearing before a
judge of the juvenile court pursuant to section 252.
4
reunification services; but her counsel stated Christina had
two concerns. First, Five Acres had made it difficult for Christina
to remain involved in Matthew’s educational and medical needs,
and Christina was concerned Matthew was not receiving
appropriate care at the facility. Second, the Department’s social
worker had told Christina, because he recently turned 12 years
old, Matthew needed to receive the COVID-19 vaccine. 3 Counsel
requested that the court “order the child not be required to
receive the vaccine, not only due to religious exemption but, more
importantly, due to the many side effects the child has to
medication.” The court asked, “What is the religious exemption
you’re reporting?” Counsel responded that Christina had not
provided her with that information and suggested the court ask
Christina directly. The court did, and Christina stated,
“Christian. We are Christian.” The court replied, “That is not an
appropriate exemption” and noted there was extensive case
authority permitting the juvenile court to order vaccinations,
citing as an example In re S.P. (2020) 53 Cal.App.5th 13.
After discussing Christina’s concerns about Five Acres and
a possible section 388 petition to change his placement or return
him to Christina’s custody, Matthew’s counsel submitted the
3 The United States Food and Drug Administration (FDA)
did not authorize the emergency use of the Pfizer-BioNTech
vaccine for the prevention of COVID-19 to include children
younger than 12 years old until October 29, 2021. (FDA, Press
Release, FDA Authorizes Pfizer-BioNTech COVID-19 Vaccine for
Emergency Use in Children 5 Through 11 Years of Age (Oct. 29,
2021) [as of March 6,
2023], archived at .)
5
issue of vaccination to the court, stating, “I had no information
about that before we were on the record.” The Department asked
the court to follow the guidelines of the Centers for Disease
Control and Prevention (CDC) regarding vaccination unless
Matthew’s doctor advised otherwise.
The court authorized vaccination of Matthew in accordance
with CDC guidelines, finding no evidence had been presented of
an appropriate religious exemption, but required the Department
to ensure that Five Acres consulted with Matthew’s pediatrician
and obtained approval that none of Matthew’s medications or his
medical condition would interfere with, or impact his ability to
receive, the vaccination.
Christina neither applied for a de novo rehearing of the
juvenile court referee’s order under sections 252 and 254 and
California Rules of Court, rule 5.542, nor appealed the order to
this court under section 395, subdivision (a)(2).
3. Christina’s Section 388 Petition
On November 30, 2021 Christina filed a section 388 request
to change court order, asking the court to revoke its November 4,
2021 authorization to vaccinate Matthew against COVID-19. As
new information or change of circumstance Christina attached a
letter she wrote on behalf of Matthew describing Matthew’s (and
Christina’s) strongly held Christian beliefs on which their
objection to vaccination was based. The letter stated the COVID-
19 vaccines had used fetal cells during their early development
and explained, “This mechanism for altering my God given body
is the equivalent of a prohibited ‘unclean food’ that causes harm
to my conscience. Covid-19 vaccines are to me unclean.”
Christina’s petition also stated, “The child is already
struggling quite a bit with his mental and emotional needs[,] and
6
we do believe that giving him this vaccine against his wishes
would be further detrimental to his mental health.” The single-
page document attached to the petition included a short
statement from an ordained minister verifying that Matthew was
a “born again Christian and member of our Church” and stating,
“[W]e believe our body is Temple of Holy Spirit and should not be
defiled.”
On December 2, 2021 the court ordered the Department to
respond to Christina’s petition, set an evidentiary hearing for
January 14, 2022 and stayed the vaccination order. The
Department in a January 5, 2022 filing recommended the court
allow Matthew to be vaccinated with the Pfizer-BioNTech
COVID-19 vaccine, noting the FDA and CDC had approved that
vaccine for 12 year olds. In support of its recommendation the
Department stated there was a spike in COVID-19 infections at
that time and vaccinations were considered ordinary treatment
for youths in foster care for which their caregivers could provide
consent without the need of a court order, citing, in part,
section 16519.57. As it related more specifically to Matthew, the
Department explained he was not only placed in a STRTP where
other foster youth were living but also attended school with
hundreds of other children who were vulnerable to the virus. The
Department attached to its report a letter from Dr. Jill Marie
Lekovic, who saw Matthew on December 2, 2021 and reported
“There is no known contraindication to Matthew getting the
COVID vaccine.”
The section 388 evidentiary hearing was continued from
January 14, 2022 to February 4, 2022 because Christina was ill
and unable to appear and again to March 11, 2022 after
Christina successfully moved to replace her appointed counsel.
7
At her new counsel’s request, the court ordered the Department
to have Matthew available to testify at the March 11, 2022
hearing.
At the hearing on March 11, 2022 the court admitted into
evidence Christina’s petition and attachment and the
Department’s response with attachments. 4 Christina then
testified she did not think it necessary to vaccinate Matthew
because “he already had COVID and he was fine. It was like a
cold.” In addition, Christina continued, “Everybody is vaccinated
where he’s at.” Christina also explained that Matthew now had
tardive dyskinesia as a result of antipsychotic medication he had
been taking (Seroquel) and, in general, “a delicate body, a
delicate brain.” She expressed concern about the vaccine’s
possible harmful impact, “especially in young kids,” given the
absence of long-term studies of the vaccine’s side effects.
Christina did not address her religious objection to the
vaccine in her testimony; and her counsel, in arguing that the
court find it in Matthew’s best interest to allow his mother to
make the decision, discussed only Christina’s health-related
concerns. Counsel also suggested masking and frequent testing
would adequately protect Matthew and the other residents and
staff at Five Acres.
Matthew did not testify at the hearing. However, his
counsel advised the court that Matthew “wanted Your Honor to
know that he would like for the court to make this decision for
him.”
4 The court also admitted a last minute information report
dated February 4, 2022, which included more recent information
concerning Matthew’s placement at Five Acres but did not
directly relate to the issue of vaccination.
8
The Department argued it did not appear that Matthew
shared his mother’s religious objections to vaccination, asserted
Christina’s concerns about Matthew’s health were speculative,
and reminded the court that Dr. Lekovic stated there were no
known contraindications to Matthew’s vaccination.
The court denied the petition, finding insufficient evidence
of changed circumstances and insufficient evidence it was in the
child’s best interest not to be vaccinated. Explaining its ruling
the court stated, “In looking at the document of the motion that
the mother has filed, there is absolutely no medical evidence and
no sincerely held religious belief that justifies avoiding the child,
who is in an approved congregate care setting, to not [sic] be
vaccinated. . . . There is no evidence that the vaccination that
would be implemented for Matthew is one that’s using aborted
fetal cells. It’s just a statement by some ordained minister.
There’s no scientific evidence.” As for Christina’s health-related
concerns, the court emphasized Dr. Lekovic’s letter and stated,
“Mother’s statements are simply statements that I believe are
wrought with fear, panic and lack of true medical evidence.” The
court acknowledged side effects had been reported as a result of
vaccinating children but concluded “those side effects are
outweighed by the benefits that have been indicated to have
shown to be true as a result of this vaccine being implemented.”
Christina filed a timely notice of appeal from the March 11,
2022 order denying her section 388 petition. 5
5 In response to an inquiry from this court, the Department
on February 1, 2023 reported that, to its knowledge, Matthew
had not yet received any vaccinations or boosters for the
COVID-19 virus or any of its variants. According to a
January 23, 2023 last minute information report, filed by the
9
DISCUSSION
1. Section 388: Governing Law and Standard of Review
Section 388 provides for modification of juvenile court
orders when the moving party (1) presents new evidence or a
change of circumstance and (2) demonstrates modification of the
previous order is in the child’s best interest. (In re Jasmon O.
(1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th
295, 317; In re Malick T. (2022) 73 Cal.App.5th 1109, 1122;
see Cal. Rules of Court, rule 5.570(e); see also In re Zacharia D.
(1993) 6 Cal.4th 435, 455 [“‘[s]ection 388 provides the “escape
mechanism” that . . . must be built into the process to allow the
court to consider new information’”].) “‘The petitioner has the
burden of showing by a preponderance of the evidence (1) that
there is new evidence or a change of circumstances and (2) that
the proposed modification would be in the best interests of the
child.’ [Citation.] ‘[T]he change in circumstances must be
substantial.’” (In re J.M. (2020) 50 Cal.App.5th 833, 845; accord,
Malick T., at p. 1122.)
If the juvenile court has ruled the moving party failed to
carry his or her initial burden to demonstrate new evidence or
change of circumstance, the first step of the analysis, the
question for the reviewing court is whether that finding is
erroneous as a matter of law. (See Almanor Lakeside Villas
Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [where
Department for a section 342 jurisdiction/disposition hearing
scheduled for February 3, 2023, Matthew tested positive for
COVID-19 in December 2022. We grant the Department’s
February 1, 2023 request to take judicial notice of several minute
orders reflecting Matthew’s custodial status and the January 23,
2023 last minute information report.
10
the issue on appeal turns on a failure of proof at trial, “the
question for the reviewing court [becomes] ‘“whether the evidence
compels a finding in favor of the appellant as a matter of law”’”];
In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156 [same]; see
also In re R.V. (2015) 61 Cal.4th 181, 201 [where a party fails to
carry its burden on an issue in the juvenile court, “the inquiry on
appeal is whether the weight and character of the evidence . . .
was such that the juvenile court could not reasonably reject it”].)
We review the court’s best interest determination, the
second step, for abuse of discretion and may disturb the exercise
of that discretion only in the rare case when the court has made
an arbitrary or irrational determination. (In re Stephanie M.,
supra, 7 Cal.4th at p. 318; In re I.B. (2020) 53 Cal.App.5th 133,
152.) We do not inquire whether substantial evidence would
have supported a different order, nor do we reweigh the evidence
and substitute our judgment for that of the juvenile court.
(Stephanie M., at p. 319.) We ask only whether the juvenile court
abused its discretion with respect to the order it made. (In re
M.H. (2018) 21 Cal.App.5th 1296, 1305.)
2. The Juvenile Court Did Not Err as a Matter of Law and,
in Any Event, Did Not Abuse Its Discretion
a. New evidence
“‘[T]he term “new evidence” in section 388 means material
evidence that, with due diligence, the party could not have
presented at the dependency proceeding at which the order,
sought to be modified or set aside, was entered.’” (In re D.B.
(2013) 217 Cal.App.4th 1080, 1093; accord, In re H.S. (2010)
188 Cal.App.4th 103, 105, 108-109 [because “the term ‘new
evidence’ in section 388 must be construed to include the three
requirements of new evidence, reasonable diligence, and
11
materiality,” new expert’s opinion based on evidence that was
previously available does not constitute “new evidence” within
the meaning of section 388]; see also In re A.A. (2012)
203 Cal.App.4th 597, 612 [“[t]he change in circumstances or new
evidence must be of such significant nature that it requires a
setting aside or modification of the challenged order”].)
Christina’s religious objection to Matthew’s vaccination was
initially voiced at the six-month review hearing after she had
been told by a social worker prior to the hearing that Matthew
needed to be vaccinated once he turned 12 years old. Christina’s
explanation of the biblical and factual bases for her objection, set
forth in the letter attached to her petition, did not constitute
“new evidence” within the meaning of section 388. That
information was readily available to Christina prior to the six-
month review hearing. Nonetheless, Christina on appeal argues
she could not have known the court would require supporting
evidence, rather than accepting her statement of belief, and a
section 388 petition, therefore, was the appropriate procedural
device to present the issue. She also notes the Department’s
letter to foster caregivers regarding vaccinations, which was
attached as an exhibit to the Department’s response to the
section 388 petition, after stating caregivers were authorized to
consent to the COVID-19 vaccine, indicated parents could object
to vaccination by filing a section 388 petition.
Christina’s argument for an expansive interpretation of the
new evidence requirement is not persuasive. As the court of
appeal explained in In re H.S., supra, 188 Cal.App.4th 105, the
public policy that precludes reopening a case because a party has
identified evidence that could have been presented, but was not,
“applies even more forcefully to dependency cases, where delay is
12
antithetical to the primary focus of dependency proceedings, the
best interests of the child.” (Id. at p. 108.) Indeed, a strict
application of section 388’s new evidence requirement is
particularly appropriate here, where, because the six-month
review hearing was conducted by a juvenile court referee,
Christina had the right to seek an immediate rehearing de novo
and present to a judge of the juvenile court any evidence she
wished in support of her religious objections and health-related
concerns about vaccination. (See §§ 252, 254.) Having elected
not to do so, Christina was obligated to comply with the
substantive requirements of the alternate procedure she chose to
use.
b. Best interest
Even if we were to agree that Christina’s petition presented
new evidence within the meaning of section 388, the juvenile
court acted well within its discretion in finding modification of its
order authorizing Matthew’s vaccination with the Pfizer-
BioNTech COVID-19 vaccine was not in the child’s best interest.
Christina disputes that conclusion, arguing the court failed to
accord the required level of deference to her religious choices as
Matthew’s parent or to respect her nonreligious concerns about
the possible impact of the vaccine on his health. Neither
contention has merit.
When a child has been declared a dependent of the juvenile
court, the court is expressly authorized to make “any and all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child, including medical
treatment.” (§ 362, subd. (a); see § 369, subd. (c) [authorizing the
court to order medical, surgical, dental or other remedial care or
treatment for a dependent child].) These provisions and others in
13
the Welfare and Institutions Code “have been broadly interpreted
to authorize a wide variety of remedial orders intended to protect
the safety and well-being of dependent children.” (In re
Carmen M. (2006) 141 Cal.App.4th 478, 486; accord, In re S.P.,
supra, 53 Cal.App.5th at p. 17 [“‘[P]rovisions of the Welfare and
Institutions Code illustrate the juvenile court’s authority to make
all reasonable orders relating to medical treatment for a
dependent child. No statute restricts that authority’”]; In re
Christopher I. (2003) 106 Cal.App.4th 533, 555; see In re Jose M.
(1988) 206 Cal.App.3d 1098, 1103-1104 [juvenile court has broad
discretion to determine what would best serve dependent child’s
interests and enter appropriate orders to protect the child].) The
court’s authority unquestionably extends to ordering approved
vaccinations for a child over a parent’s objection. (In re S.P., at
pp. 14-15.)
Christina contends her religious objection to vaccination,
predicated on her belief the Pfizer-BioNTech COVID-19 vaccine
used “fetal cells” during its early development, justified a finding
that vaccinating Matthew was not in the child’s best interest.
Christina’s religious beliefs were certainly entitled to some
consideration in the juvenile court’s evaluation of the issue, even
though, as the court noted, the factual basis for her objection to
the Pfizer vaccine was not supported by any evidence. 6 (Cf.
6 We grant Christina’s November 27, 2022 request for
judicial notice of the following statement from the per curium
opinion in We The Patriots USA, Inc. v. Hochul (2d Cir. 2021)
17 F.4th 266, 276-277: “[I]n the 1970s and 1980s, cell lines were
derived from fetal cells obtained from elective abortions or
miscarriages. These cell lines have since been used in the
development of various vaccines. They were used for testing in
the research and development phase of the mRNA (Pfizer-
14
§ 16509 [“[c]ultural and religious child-rearing practices and
beliefs which differ from general community standards shall not
in themselves create a need for child welfare services unless the
practices present a specific danger to the physical or emotional
safety of the child”].) But, contrary to Christina’s argument,
those beliefs are not outcome determinative. (See Prince v.
Massachusetts (1944) 321 U.S. 158, 166-167 [64 S.Ct. 438] [A
parent “cannot claim freedom from compulsory vaccination for
the child more than for himself on religious grounds. The right to
practice religion freely does not include liberty to expose the
community or the child to communicable disease or the latter to
BioNTech and Moderna) COVID-19 vaccines and in the
production of the Johnson & Johnson COVID-19 vaccines. [Fns.
omitted.]”
As this statement indicates, fetal cell lines, not fetal cells,
were used in the development of the Pfizer-BioNTech vaccine.
The Los Angeles County Department of Public Health in its
information sheet on COVID-19 vaccines and fetal cell lines—the
authority cited by the We The Patriots court—explained, “Fetal
cell lines are different from fetal cells and fetal tissues. Fetal
cells and fetal tissue come directly from a fetus. Fetal cell lines
are grown in a laboratory from cells that originally came from
fetuses. None of the COVID-19 vaccines available for use in
the United States contain fetal cells or fetal tissue.” The
information sheet further explained, with respect to the Pfizer
and Moderna vaccines, “A fetal cell line was used for laboratory
testing before these vaccines were tested on people.”
(Los Angeles County Dept. of Pub. Health, COVID-19 Vaccine
and Fetal Cell Lines (Dec. 5, 2022)
[as of March 6, 2023],
archived at< https://perma.cc/M3C4-8VAC>.)
15
ill health or death,” fn. omitted]; Brown v. Smith (2018)
24 Cal.App.5th 1135, 1143 [“it has been settled since 1905 . . .
‘that it is within the police power of a State to provide for
compulsory vaccination’”]; see also Walker v. Superior
Court (1988) 47 Cal.3d 112, 139 [although the First Amendment
“absolutely protects religious belief, religiously motivated conduct
‘remains subject to regulation for the protection of society’”];
People v. Woody (1964) 61 Cal.2d 716, 718 [religious practices
may be abridged “upon a demonstration that some compelling
state interest outweighs the defendants’ interests in religious
freedom”].)
Here, notwithstanding Christina’s claim in her section 388
petition that Matthew shared her objection to receiving the
COVID-19 vaccine due to his religious beliefs and her assertion
that vaccinating him against his wishes would be detrimental to
his mental health, Matthew’s counsel made clear at the
evidentiary hearing, after speaking to Matthew, that the child
wanted the court, not his mother, to make the decision. And to
reiterate, it was, in any event, well within the authority of the
juvenile court to allow the vaccination of a dependent child
notwithstanding parental objection if the evidence before the
court, including the approval of the child’s doctor, supported the
decision to do so. (In re S.P., supra, 53 Cal.App.5th at pp. 17-18.)
The record at the section 388 hearing amply justified the
court’s conclusion it would not be in Matthew’s best interest to
revoke the vaccination order despite Christina’s unsupported
concerns about possible adverse side effects. As established by
the Department’s response to Christina’s petition, COVID-19 was
one of the 10 leading causes of death for children as of October
2021, COVID-19 infections were then increasing, Matthew was in
16
contact with multiple individuals at his placement and his school,
the Pfizer vaccine had been found safe for children Matthew’s age
and Matthew’s pediatrician had determined there were no known
contraindications to Matthew receiving the vaccine. Moreover, as
discussed, Matthew was not averse to receiving the vaccination,
leaving it to the court to decide. However legitimate Christina’s
concerns may have been about unknown long-term side effects of
the vaccine, it was for the juvenile court to weigh the benefits of
vaccinating Matthew—for himself and for those he would interact
with—and the possible risks. It was not an abuse of discretion
for the court to conclude its authorization to vaccinate Matthew
should stand.
DISPOSITION
The order denying the section 388 petition is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
17