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In re Womack

Court of Appeals of Texas, Tenth District

December 27, 2017

IN RE JOHNATHAN WOMACK AND GENA TAYLOR-WAGNER

         Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          REX D. DAVIS, JUSTICE.

         Relators Johnathan Womack (John) and Gena Taylor-Wagner (Gena) seek mandamus relief to vacate the "Order to Immunize Foster Child over Parental Objection" (the Order) that was signed by the trial court in the underlying case on October 2, 2017. We conditionally grant mandamus relief.

         John's and Gena's son was born on April 24, 2017. To protect the child's identity, we will refer to him by the alias Jimmy. See Tex. R. App. P. 9.8. Shortly after Jimmy's birth, the Department of Family and Protective Services (the Department) removed him from John's and Gena's care and filed a petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship. The trial court then conducted an adversary hearing and signed a temporary order on June 14, 2017, appointing the Department as temporary managing conservator of Jimmy and appointing John and Gena as temporary possessory conservators of Jimmy. The trial court ordered that the Department, as Jimmy's temporary managing conservator, shall have all the rights and duties set forth in section 153.371 of the Family Code. See Tex. Fam. Code Ann. § 153.371 (West Supp. 2017). The trial court further ordered that the Department is authorized to consent to medical care for Jimmy pursuant to section 266.004 of the Family Code. See id. § 266.004 (West Supp. 2017). As for John and Gena, the trial court ordered that they, as Jimmy's temporary possessory conservators, shall have "the limited rights and duties set forth in Attachment A" of the temporary order. Attachment A provides in relevant part:

23.1. Each Temporary Possessory Conservator appointed in this Order shall have the following rights:
23.1.1.The right to receive information concerning the health, education, and welfare of their child;
23.1.2.The right to access to medical, dental, psychological, and educational records of their child;
23.1.3.The right to consult with a physician, dentist, or psychologist of their child . . .;
23.1.4.The right to consult with school officials concerning their child's . . . welfare and educational status, including school activities;
23.1.5.The right, during times of unsupervised possession, to consent for their child . . . to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of their child; and/or
23.1.6.The right, during times of possession, to direct the moral and religious training of their child.
23.2. Each Temporary Possessory Conservator appointed in this Order shall have the following duties:
23.2.1.The duty, during periods of possession of their child which are not supervised by the Department or its designee, of care, control, protection, and reasonable discipline of their child; and/or
23.2.2.The duty to support their child, including providing the child with clothing, food, and shelter during periods of possession of their child which are not supervised by the Department or its designee.

         Thereafter, at a hearing on July 12, 2017, the Department expressed concern that Jimmy had not received any vaccinations. The Department explained that Jimmy is living in a foster home where he is exposed to social environments like daycare and church, that the Department would therefore like Jimmy to receive immunizations, but that Gena is opposed to it. John and Gena expressed at the hearing that they are both opposed to Jimmy being vaccinated at this time. The trial court initially declined to rule on the issue and ordered John and Gena to meet with Jimmy's pediatrician to discuss the need for the immunizations and John's and Gena's basis for objecting to them.

         On September 27, 2017, the trial court then held an evidentiary hearing about whether immunizations should be administered to Jimmy. Dr. Carly Lyons, Jimmy's pediatrician, first testified that she believes that the benefits of receiving immunizations outweigh the potential side effects and that it is therefore in Jimmy's best interest to be given vaccinations. Gena then testified that, based predominantly on the prevalence of autism in her family, she is opposed to Jimmy receiving vaccinations until he is "past the age of autism, " which she thinks is about five years old. John then similarly testified that it is still his desire that Jimmy not yet be immunized. John stated that he has filled out and had notarized an affidavit so that ...


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