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Family Court Act, Nassau County Department of Social Services v. R.B. (N.Y.Fam.Ct. 12/18/2008)

December 18, 2008

IN THE MATTER OF A NEGLECT PROCEEDING UNDER SECTION 1012, 1031 OF THE FAMILY COURT ACT, NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER, O/B/O A.Y. Y.Y. Y.Y. .
v.
R.B., RESPONDENT.



The opinion of the court was delivered by: Edmund M. Dane, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

On October 22, 2008 this Court removed the three subject children, A.Y., born xxxxx xx, 1994; Y.Y., born xxxxx xx, 1998; and, Y.Y. born xxxxx xx, 1999 from Respondent Mother, R.B., pursuant to Family Court Act (FCA) § 1021. The care and custody of these children was placed with the Commissioner of the Nassau County Department of Social Services (hereinafter "DSS").

On October 27, 2008 neglect petitions were filed against Respondent alleging her failure to exercise a minimum degree of care over her three children by, inter alia, directing them to shoplift on a monthly basis, and not attending to their school registration and medical needs. A temporary order of supervision was granted to DSS and a temporary order of protection in favor of the children was issued on October 28, 2008. The neglect petitions have not been adjudicated.

Subsequent to their placement in foster care, the Respondent informed DSS that the children have never been immunized. DSS requested that Respondent consent to immunization of the children, but she refused, asserting that her religious beliefs precluded same.

DSS moved this court by order to show cause, pursuant to the New York Code of Rules and Regulations (18 NYCRR) § 441.22, New York Public Health Law (NYPHL) § 2164(2), and Social Services Law (SSL) § 383-b for an order directing an evidentiary hearing to determine whether Respondent qualifies for the religious exemption to mandatory immunization pursuant to NYPHL § 2164(9). If Respondent is found not to qualify, DSS requests the issuance of an order permitting the Department to immunize the children.

On consent, a hearing was held on December 1, 2008.

FINDINGS OF FACT

DSS foster care caseworker Matthew Barcia was the sole witness for movant. Mr. Barcia testified that the three subject children were placed in foster care prior to his involvement with this family.

The children had previously attended public schools in New York City. All three children had been accepted for attendance without immunizations based upon written information submitted by this Respondent and her Messiah, which provided, inter alia, that the children could not be immunized due to the Respondent's way of life.

After the children's removal from the Respondent's care on October 22, 2008, two of the children, Y. and Y., were accepted into the School District as students without immunizations. The School District accorded both children exemptions to the requirement of immunizations based upon proofs of beliefs submitted by the Respondent.

The remaining child, A., is currently not enrolled in a school program. He was placed at Hope for Youth Diagnostic Home in Amityville, New York, where he is undergoing psychological and psychiatric evaluations. School placement will be determined based upon the results of the evaluations.

The Respondent testified, that she is a participant in and adherent of the Congregation of El Shaddai Yisrael. The tenets are reflected in a letter from the Messiah of the Congregation to DSS (Pet. Exh. 3), dated November 20, 2008, which provides, in relevant part, that the three children are members of the congregation, which is a race of people, not a religion. The teachings are based on the Old and New Testaments with specific reference to Chronicles 16:11-12 and general references to laws and commandments from Genesis to Deuteronomy . The Messiah states that, "In keeping these laws and commands and teaching them to our children, by being obedient in all things, El Shaddai Yisrael said he will keep all diseases and sickness away from us * * * for he is the one who heals us * * * " Further, that "it is against his laws for these members to go to doctors or take medications or shots of any kind." The court notes that the Messiah did not testify at this hearing.

The Respondent has consistently maintained these beliefs since she was approximately thirteen (13) years of age. Respondent stated "I was with my mother as she joined in. I grew up in the way. I started ...


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