

Opinion filed May 10, 2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00160-CV
                                                    __________
 
                           IN
THE INTEREST OF A.J.E., A CHILD  
 

 
                                   On
Appeal from the 358th District Court
 
                                                             Ector
County, Texas
 
                                                  Trial
Court Cause No. D-119,101
 

 
                                                                  O
P I N I O N
 
            This
appeal arises from a dispute between parents regarding whether or not their
child should be immunized against “vaccine preventable diseases.”  See Tex. Health & Safety Code Ann. § 161.004
(West 2010).  Appellant, the child’s mother, does not want the child to be
immunized.  She asked the trial court for exclusive authority to make this
determination for the child in a proceeding to modify the parent-child relationship. 
After obtaining the input of a physician, the trial court ruled that the child
should be immunized in accordance with the father’s wishes.  Appellant challenges
this ruling in a single issue.  We affirm.
Background
Facts
            Appellant
and appellee were appointed as the joint managing conservators of the child in
an order establishing the parent-child relationship.  Appellant subsequently
sought an order from the court allowing her to be solely responsible for making
any decisions regarding immunization of the child.  Appellant testified at the
hearing that the child had an allergic reaction to the first set of
immunizations she received at four months of age.  Appellant attributed the
allergic reaction to food allergies that the child suffers.  Appellant
testified that she has subsequently researched the safety of immunizations and
that she has determined that the child should not receive future
immunizations.  Appellant also testified that there was a history in her family
of bad reactions to immunizations.  When cross-examined regarding the success
of immunization programs such as the polio vaccine, appellant testified that it
“is a matter of opinion.”
            At
the conclusion of the hearing, the trial court announced that the parties would
be required to consult a physician to meet with them and the child to determine
the risks involved with immunizing the child.  The trial court subsequently
appointed Dr. Ranganayaki Yalavarthi, M.D. to determine whether or not the
child should be immunized.  The physician subsequently wrote the court a letter
that provided as follows:
Sir, 
 
I am the
pediatrician that the family was asked to come for second opinion about [the
child’s] immunizations.
 
Mother, father,
stepmom, and great aunt were here with the child.
 
After lengthy,
informational and emotional discussion, I strongly suggest that [the child] be
immunized according to CDC (Center (sic) for Disease Control) and AAP (American
Academy of Pediatrics) recommendations.  
 
Based upon the
physician’s recommendation, the trial court entered a final order requiring the
child to be immunized.
Standard
of Review
A trial court has broad discretion to decide the best
interest of a child in family law matters such as custody, visitation, and
possession.  Accordingly, we review a decision to modify conservatorship for a
clear abuse of that discretion.  In re A.L.E., 279 S.W.3d 424, 427 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (citing Gillespie v. Gillespie,
644 S.W.2d 449, 451 (Tex. 1982)).  “A trial court abuses its discretion when it
acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze
or apply the law.”  Id. (citing In re D.S., 76 S.W.3d 512, 516
(Tex. App.—Houston [14th Dist.] 2002, no pet.)). In any case involving an issue
of conservatorship, the best interest of the child must always be the primary
consideration of the trial court.  Tex.
Fam. Code Ann. § 153.002 (West 2008).
Under
the abuse of discretion standard, issues relating to the legal and factual
sufficiency of the evidence are not independent grounds of error, but only
factors used in assessing whether the trial court abused its discretion.  In
re R.T.K., 324 S.W.3d 896, 899–900 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied).  In determining whether an abuse of discretion has occurred
because the evidence is legally or factually insufficient to support the trial
court’s decision, we must inquire: (1) did the trial court have sufficient
information upon which to exercise its discretion and (2) did the trial court
err in its application of discretion?  In re T.D.C., 91 S.W.3d 865, 872
(Tex. App.—Fort Worth 2002, pet. denied). With regard to the first question,
the traditional sufficiency review comes into play.  Id.  We then
proceed to determine whether the trial court made a reasonable decision based
on the elicited evidence.  Id.  The trial court does not abuse its
discretion so long as the record contains some evidence of substantive and
probative character to support its decision.  In re C.A.M.M., 243 S.W.3d
211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).  The fact that a
trial court may decide a matter within its discretionary authority in a
different manner from an appellate court in a similar circumstance does not
demonstrate an abuse of discretion.  Id. at 215. 
Analysis
            In
her sole issue on appeal, appellant asserts that the trial court abused its
discretion by requiring the child to be immunized.  She initially contends that
the trial court’s order violates her constitutional and statutory rights
because it infringes upon her right to direct the medical care and treatment of
her child.  We disagree with appellant’s analysis in this regard because it
ignores the fact that the child’s other parent wants the child to be immunized.
 If the court had ruled in appellant’s favor, the child’s father would have the
same argument she now advances.  Accordingly, this case does not involve a
situation where the government is attempting to override the will of both
parents or the sole surviving parent of a child.  See Troxel v. Granville, 530 U.S. 57, 60 (2000) (plurality opinion) (involving a sole
surviving parent’s decision to restrict grandparent access); Miller v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (involving both parents’
mutual decision to withhold medical care for an infant born prematurely with
severe medical problems).  To the contrary, this case involves a determination
regarding which of the conflicting preferences of the child’s parents should be
honored.  
            Appellant
has not cited any authority that her opposition to immunizations outweighs
appellee’s preference for them.  To the contrary, Section 161.004(a) provides
that “[e]very child in the state shall be immunized against vaccine preventable
diseases caused by infectious agents” in accordance with the requirements of
the Texas Board of Health.  See Tex.
Health & Safety Code Ann. § 11.001(1) (West 2010).  However, Section
161.004(d) provides an exemption from the immunization requirement for a child
if:
       (1) a parent,
managing conservator, or guardian states that the immunization is being
declined for reasons of conscience, including a religious belief; or 
 
       (2) the
immunization is medically contraindicated based on the opinion of a physician
licensed by any state in the United States who has examined the child.  
 
As set forth in
the statute, appellant’s opposition to immunizations constitutes an exception
to the general rule.  
            Appellant
also contends that there is no evidence supporting the trial court’s decision. 
We disagree.  The physician’s letter constitutes evidence that immunization is
in the child’s best interest.  The letter establishes that immunization of the
child is not medically contraindicated and that it complies with the
recommendations of the Centers for Disease Control and the American Academy of
Pediatrics.   Accordingly, there is evidence supporting the trial court’s determination
that the father’s preference for the child to be immunized is in the child’s
best interest.   Furthermore, the record does not show that the trial court
abused its discretion in making this determination.  Appellant’s sole issue is
overruled.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
 
            
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
May 10, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.

