IN RE: A.L. (2024)

By order to show cause (# 1) dated August 21, 2022, Respondent Ms. B.L. seeks an order enjoining ACS and Children's Aid from vaccinating the children A.L., I.D., and A.K. without a court order or parental consent. She further seeks an order directing ACS and Children's Aid to make a plan for daily parenting time for Ms. L. to homeschool A.K. and I.D. using the curriculum attached to her moving papers.

Following the submission of other papers, the Court issued an interim order dated September 5, 2024, setting the motion down for a hearing. The hearing took place on September 9 and 17, 2024. The record consisted of all the papers submitted in advance, as well as Petitioner's Hearing Exhibits 1-9; the credible testimony of Dr. Angel Mendoza; the credible testimony of Taisha Pavlica; Respondent's Hearing Exhibits A and B, and the testimony of Ms. L., which the Court found not credible. Mr. D. did not testify but the Court understands from his attorney that he "supports" Ms. L.

Based on the record, the motion is denied, and the Court furthermore enters the order below granting ACS authorization to consent to the children receiving certain vaccinations and appointing an education surrogate to consent to certain education matters for A.K. and I.D..

In reaching this result, the Court carefully balanced the potential benefits to be attained against the risks involved in the treatment, as well as the validity of the parents' objections to the treatment with a focus on whether their refusal to authorize vaccination constitutes an acceptable course of medical treatment for her children in light of all the surrounding circumstances. See the Court's order of September 5, 2024 (citing Matter of Athena Y., 201 AD3d 113 (3d Dep't. 2021)). The Court also made a determination of the best interests of the school age children as to their school enrollment, taking into account any credible alternative plans to public school the parents might have, considering their objection to the vaccination requirement.

BENEFITS OF VACCINATION

The Court credits completely the persuasive, unrebutted testimony of Dr. Mendoza and the other medical evidence in the record concerning the clear benefits to all three children to receive the standard vaccinations recommended by the American Academy of Pediatrics and the Centers for Disease Control and Prevention. Once they receive these vaccines, it is highly unlikely that they will get measles, mumps, or polio, or any of several other diseases that have been mostly eradicated in the population thanks to widespread vaccination. They are also much less likely to get COVID or influenza, and if they do, their disease course is more likely to be mild. Being vaccinated thus grants them the freedom to enjoy childhood likely free of serious, potentially life-threatening diseases; free of the paralysis that can come from polio; and free of the impact of being sick with one or more communicable diseases that can prevent them from enjoying all life has to offer.

The additional benefit to A.K. and I.D. of having the recommended vaccines is that they can attend public school and various afterschool, camp, and community activities that require vaccination. While home schooling is a permissible, legal choice for parents, public education has a clear benefit that is in these children's best interests on this record. First, the Court credits the evidence suggesting that the parents did not comply with DOE regulations for home schooling for the 2023-24 year, and they only followed the requirements for 2024-25 after the dispute in this hearing came to light. The Court further credits the evidence that home schooling these children who are in foster care due to a finding of imminent risk is simply not feasible. The home schooling plan, if implemented, would be chaotic and incomplete. The children wish to go to school and should have that opportunity. Moreover, the socializing benefits of school as well as the other activities that they can only participate in if vaccinated are overwhelming. The parents offer no credible evidence for how they would ensure their children have a somewhat normal childhood experience interacting with other children. Going to the zoo during the school day to possibly interact briefly with pre-school aged children is not adequate socialization.

The risks to the children to not be vaccinated, as alluded to above, are the converse of the benefits: exposure to serious diseases, against which they have no natural immunity, and which have morbidity and mortality risks that are intolerable for young children in our modern society. A.L. is at heightened risk because her malnourishment has suppressed her immune system. Even though Blythedale does not require vaccination for its residents, her treating physician recommends it. (ACS hearing exhibit 9.)

RISKS OF VACCINATION

Meanwhile, the risks to have the vaccine are minimal. There is no scientific evidence that these vaccines cause any serious problems; there is a correlation with Guillame-Barre Syndrome, but the rates are infinitesimal. The only common side effect of any note is pain on the injection site, swelling and redness, and a general feeling of malaise, all of which self-resolve within a day or two. Ms. L.'s citation to vaccine manufacturers' statutory immunity from liability ignores the fact that the federal government has also established the national Vaccine Injury Compensation Program, which creates a no-fault compensation scheme as an alternative to the tort system. See Health Resources and Services Administration, "About the National Vaccine Injury Compensation Program," available at https://www.hrsa.gov/vaccine-compensation/about.

ASSESSMENT OF PARENTS' OBJECTION

ACS hearing exhibit 2 documents that when asked about their reasons for opposing vaccination, the parents were unable to articulate anything, other than that they are opposed. Documentation from NYU (ACS hearing exhibit 3) demonstrates that the parents affirmatively misrepresented the state of Lotus's vaccination history, claiming that she was up to date when in fact, she had had none. The failure to articulate any reason for vaccinating and the effort to hide their most at-risk child's vaccination status suggests that the parents in fact lack any principled, let alone rational, basis for their objections.

There is some evidence that before this motion hearing commenced, they claimed "religion" as an explanation for their objections, but they never specified to the agency or doctors what their religious beliefs were or why vaccinating their children would violate them. In fact, Ms. L. initially consented to A.L. having the MMR vaccine on August 6, before revoking her consent the next day. (ACS hearing exhibit 8.) During the hearing, Ms. L.'s attorney tried to ask Dr. Mendoza about his understanding of the religious objections to vaccines that "some" parents have; the Court sustained an objection to this question and suggested that counsel should ask him to opine about the specific reasons Ms. L. has for objecting. Counsel declined to do so. Thus Dr. Mendoza was never given the opportunity to address the religious objections claimed by Ms. L. later in the hearing for the first time. In that testimony, Ms. L. explained her Christian beliefs about the sanctity of life and how, in her view, use of vaccines would violate this tenet. She also testified about her objection to the use of certain animal products she claims are in vaccines as also violative of Biblical teachings.

In any event, the Public Health Law no longer recognizes religion as a basis to exempt children from the vaccination requirement when it comes to public school enrollment. Even if there were still such an exemption, on this record the Court would find that Ms. L. lacks a credible, sincerely held religious view on the issue of vaccines, and that her objection comes more from a personal "lifestyle" philosophy. To the extent respondent raises a pure First Amendment objection to the administration of vaccines apart from the public school enrollment issue, the Court also finds that her claim of a religious basis for her objection is not credible or sincerely held, for the same reasons. Mr. D. did not testify about his views at all and thus the Court finds that he too lacks a credible, sincerely held religious view.

Ms. L. emphasized an overall objection to modern medicine and preference for using "holistic" practitioners — and Mr. D. did not present a case at all. Ms. L. also has a fundamental misunderstanding about the ingredients in vaccines, claiming, erroneously, that they contain "aborted fetuses." (While embryonic diploid cells from lines dating back to the 1960's and 1970's are used in the manufacture of several of the vaccines at issue in this hearing, the original abortions were not conducted for the purpose of harvesting cells for vaccines, no additional abortions are needed to sustain manufacture, and there are no human cells present in the vaccines themselves. See John D. Grabenstein, "What the World's Religions Teach, Applied to Vaccines and Immune Globulins," 31 Vaccine 2011, 2017 (2013).) This error reveals immaturity in her moral reasoning and insincerity in her professed religious belief. The church she has attended since childhood does not support her position, and she has never discussed the matter with her father, who introduced her to that church. The "divine messages" she claims to have started receiving since having children do not constitute a sincere religious belief under the totality of the evidence.

There are no other ways for children to get the benefit of vaccines other than from the injections themselves. To avoid infection, they would have to isolate from other people, undermining their socialization. A.L. is already medically fragile and should not be put in a situation where she must be isolated to protect her from diseases such as measles, polio, and the others discussed in this hearing. The parents have simply not proposed any credible alternative approach to keeping their children safe. Ms. L. presented no expert evidence and her own testimony lacked details concerning her holistic approach to preventing and treating illness.

This case began with allegations that the parents had abused A.L. by failing to feed her properly; she arrived at the hospital, according to the record, in respiratory distress due to malnourishment. While the case is pre-fact-finding, the Court has remanded all three children, having found them to be at imminent risk to be in the parents' care. (A contested hearing was settled, but the findings were nevertheless made.) Thus, deferring to the parents' views on what medical treatment is best for their children is not proper, particularly when those views are unsupported by any credible evidence. This Court respectfully disagrees with the outcome in Matter of Christine M., 157 Misc 2d 4 (Kings Co. Fam. Ct. 1992) as applied in the current case.

SCHOOL ENROLLMENT (I.D. AND A.K.)

Even if the Court were to find that the risk/benefit assessment were a closer call, and/or that the parents' objection to vaccination had some principled or rational basis worthy of deference, their schooling plan is not in the best interest of I.D. and A.K.. Based on ACS hearing exhibit 4 and the credible testimony of Ms. Pavlica, the Court finds that the parents do not intend to actually follow DOE requirements for home schooling. Even if they had a sound, credible plan to home school in accordance with regulations, the reality is that the extended parenting time required to effectuate this plan is contrary to the children's best interests. If the parents had been sincere about designing, developing, and implementing a credible home schooling plan, the Court would have expected them to share with the agency all their plans in a timely manner, particularly when asked directly to do so. Instead, they provided no information or documentation, forcing the agency to do all the legwork to obtain whatever the DOE had on file. Simply put, the parents did not come to the table in good faith to plan for their children's education, and the Court will exercise its discretion to make its own determination about their best interests in education at this time.

Ms. L.'s argument that she should be permitted to home school I.D. and A.K., thus obviating the need to require vaccination, is really an attempt to expand her visitation in the guise of a hearing on a different matter. Her home schooling plan, for her children who are in foster care, is simply not appropriate or feasible here. Unsupervised visits of any amount, let alone 25 hours a week, are not warranted on this record. Ms. L. has not fully engaged in her service plan — notably, she has not yet had a mental health evaluation or any treatment. Moreover, in the initial stages of the case, the foster parent agreed to supervise visits in her home, but Ms. L. violated the ground rules and visits reverted to the agency. The Court does not trust that she can be alone with the children at the present time. It is impractical to require the agency to make staff available for 25 hours a week for one family to supervise visits. The Court notes that this foster parent was nominated by the respondents at the outset of the case when the parents already planned (unknown to the agency) to home school the children. Moreover, based on the aforementioned incident, the foster parent no longer welcomes them in her home.

Taking into account the parents' proposed alternative to public school and finding it not credible, and also considering their objection to the vaccination requirement for public school enrollment and finding it without a sincere, credible religious basis, the Court's determination is that it is in A.K. and I.D.'s best interests to be enrolled in public school.

CONCLUSION

The parents' plea concerning the sanctity of their right to raise their children as they see fit is misplaced. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

Therefore, the Court HEREBY ORDERS THAT:

Motion # 1 is denied.

The Commissioner of ACS through his designee is authorized to consent to vaccination of the children as follows:

I.D. and A.K: Hepatitis B, DTaP (Diptheria, Tetanus, and Pertussis), Polio, MMR (Measles, Mumps, and Rubella), influenza, Varicella, Hepatitis A, and COVID-19.

A.L.: All vaccines recommended by public health authorities based on her age, as detailed at https://www.cdc.gov/vaccines/by-age/index.html.

The Court hereby subrogates the rights of the parents to make certain educational decisions for the children I.D. and A.K., who are in foster care and do not reside with them, and hereby appoints foster parent R.S. as the education surrogate for the sole purposes of a) enrolling the children in public elementary school, and b) consenting to a standard educational evaluation (not for special education purposes) to take place at the Children's Aid Society. This appointment shall automatically expire if/when the children are removed from Ms. S.'s care.

Enforcement of this order is hereby stayed until 5pm on Friday, September 20, 2024, in order to afford aggrieved parties the opportunity to seek a longer stay from the Appellate Division.

Brooklyn, NY

September 17, 2024

HON. ERIK S. PITCHAL, J.F.C.

Erik S. Pitchal, J.