Matter of Maria S. (Samantha S.)
Annotate this CaseDecided on April 29, 2014
Family Court, Kings County
In the Matter of a Proceeding Under Article 10 of the Family Court Act, Maria S. AMANDA S., Children Under Eighteen Years of Age Alleged to be Abused by Samantha S. ANGELO S., Respondents.
XXXXX/13
The attorneys on the are as follows:
Amanda J. D'Orazi, Esq., attorney for the Petitioner, Administration for Children's Services
Brian Zimmerman, Esq. attorney for the Respondent Mother
Eileen Choi, Esq., Brooklyn Defender Services, for the Respondent Father
Teresa Kominos, Esq., The Legal Aid Society, for the Children
Lillian Wan, J.
In this Article 10 abuse proceeding against the respondent parents, the court held a consolidated fact finding hearing and Family Court Act (hereinafter F.C.A.) §1028 hearing. For the reasons set forth below, the court finds that the Administration for Children's Services (hereinafter ACS or petitioner) has established by a fair preponderance of the evidence that the subject children were abused by both respondents within the meaning of F.C.A. §1012. Notwithstanding the finding of abuse, the court further finds that petitioner has failed to prove that the subject children would be at imminent risk of harm if returned to the care of the respondents at this time and accordingly, the respondents' F.C.A. §1028 application is granted [*2]and the subject children will be released to the care of the respondents under ACS supervision.
I. PROCEDURAL HISTORY
On February 11, 2013, the petitioner filed an Article 10 child abuse petition alleging that the child Maria S. (D.O.B. 8/27/12), sustained a femur fracture on or about October 10, 2012, when she was 44 days old. On or about October 29, 2012, the subject child Maria was diagnosed with a skull fracture located at the parietal bone. On or about December 5, 2012, Maria presented with bruising to her left temple and both cheeks. On or about December 12, 2012, Maria presented with a bruise to her right leg. Furthermore, on or about December 14, 2012, Maria presented with a bruised upper lip and a torn frenulum. ACS alleges that the respondents did not have an adequate explanation for any of these injuries. ACS further alleges that as a result of the respondents' actions towards Maria, Maria's sibling, Amanda S. (D.O.B. 9/7/11) is at risk of being abused or is in imminent danger of being abused. At initial arraignment, the subject children were remanded to the petitioner and have remained in foster care to date. On June 5, 2013, counsel for the respondent mother filed an Order to Show Cause seeking a F.C.A. §1028 hearing for the immediate return of the children and unsupervised visitation. Counsel for the respondent father joined in the respondent mother's applications.
The court granted the Order to Show Cause to the extent that the court ruled that the §1028 hearing would be consolidated with the fact finding hearing, to commence on June 10, 2013. The application for unsupervised visitation was denied at that time and supervised visitation was continued pending a full fact finding and a determination on the merits. See Order On Motion #1 dated June 5, 2013. The consolidated F.C.A. §1028 and fact finding hearing began on June 10, 2013 with opening statements by counsel and the commencement of the petitioner's direct case. The matter was tried over the course of approximately twenty six trial dates and concluded on February 28, 2014. Eight witnesses testified in total throughout the course of these proceedings, including four expert witnesses, and voluminous documentary evidence was submitted.
At the conclusion of the trial, the court ordered attorneys to submit simultaneous written summations by March 21, 2014, and the matter was adjourned to April 10, 2014 for the court's decision. On or about March 20, 2014, all counsel on the case requested an extension until March 26, 2014 for the submission of the written summations citing a delay in the receipt of the transcripts. The court granted this request and a new date of April 29, 2014 was selected for the court's decision.
The court has carefully reviewed counsels' summations, the documentary evidence, and the testimony of each witness. The relevant and essential evidence is summarized below. The court recognizes that the consolidated hearing presents the court with the issue of two different evidentiary standards since only competent evidence is permitted at fact finding, however at a §1028 hearing, the evidence need only be relevant and material and hearsay is therefore permitted. All of the expert medical testimony was received for the purposes of both the fact finding and §1028 hearing, and the testimony from the foster agency caseworker, Ms. Coleman and the documentary evidence relating to the respondents' cooperation with services, including the imminent risk assessment done by the Kings County Family Court Mental Health Services Clinic, is considered for §1028 purposes only.
II. THE PETITIONER'S DIRECT CASE
[*3]
A. Testimony of Petitioner's Expert, Dr. Ingrid Walker-Descartes
ACS presented the testimony of Dr. Ingrid A. Walker-Descartes, who was qualified, on consent of all counsel, as an expert in the field of pediatrics and child abuse. Dr. Walker-Descartes is a child abuse pediatrician employed at Maimonides Infants and Children's Hospital of Brooklyn where she is currently the program director for the Pediatrics Residency Training Program. Dr. Walker-Descartes is also an assistant professor at SUNY Downstate School of Medicine and an Adjunct Professor at the Mt. Sinai School of Medicine.
Dr. Walker-Descartes testified that she initially came into contact with the S. family on October 10, 2012, when the Emergency Department referred forty four day old Maria to her for a child abuse evaluation. The child was diagnosed with a non-displaced compression fracture to the right femur. Dr. Walker-Descartes described the fracture as being in the middle of her femur and that "the bone was not displaced, but in a straight line was crushed." She analogized it to a stick with "an area of a crushing, but the stick would still be straight." When Dr. Walker-Descartes saw Maria, her leg was swollen and tender to touch. Dr. Walker-Descartes classified the femur fracture as an acute or "fresh" injury, which meant that it happened within forty eight hours or less, because there were no signs of healing.
With respect to methodology, Dr. Walker-Descartes testified that she works on a multidisciplinary team at Maimonides that is comprised of a physician, a social worker, and a psychologist. Furthermore, the hospital team works with external components including ACS and the NYPD Special Victims Unit and the team works to figure out the truth of an event. Additionally, other specialists in areas including ophthalmology, hematology and genetics are consulted when working through a differential. Dr. Walker-Descartes further testified that the child abuse evaluation that she conducted was consistent with that of the American Association of Pediatrics protocol for conducting such child abuse evaluations. That included taking a detailed history from the parents or caretakers, performing a physical examination of the patient, and reviewing consultants' evaluations. Dr. Walker-Descartes also testified that just because she is a child abuse specialist, she does not operate from the mindset that it is child abuse until proven otherwise. She starts from the mindset that child abuse is a potential diagnosis and it has to be evaluated in addition to all other potential diagnosis.
Dr. Walker-Descartes stated that she interviewed both parents on October 10, 2012, and she spoke to them both together and separately and received a "trauma narrative" to inform the doctor when the child was behaving normally until the time that there was a change. Both the mother and father described Maria as a "colicky" baby who cried frequently. Dr. Walker-Descartes defined "colic" as a "period of just intense irritability." The respondent mother told Dr. Walker-Descartes that Maria had been irritable for the last two days and stopped moving her leg. The mother stated that she had taken the child to the pediatrician's office for a well baby visit about a week prior to October 10th, and that during that exam the pediatrician manipulated Maria's leg and she heard a noise, however the baby used her leg perfectly fine after that until two days prior to the October 10th hospital visit. Neither the respondent mother nor the respondent father had an explanation as to why the leg was fractured. The doctor further stated that a forty four day old infant cannot roll and cannot do anything but wait for an adult to handle them, and in order to sustain a femur fracture, the child's leg would have to impact a very hard surface or some kind of force would need to be applied anywhere along the long axis of the bone.[*4]The respondent father stated to Dr. Walker-Descartes that on the evening of October 9th, he went to change Maria's diaper and that when he lifted both of Maria's legs up to place the diaper underneath her, Maria had a scream that was out of the ordinary. He also stated that Maria had started to use her right leg less. It was at that point in time that the mother and father brought Maria to the emergency room at Maimonides Hospital.
Dr. Walker-Descartes observed that the baby was very active and loved to kick her legs, and explored, with the mother, the placement of the child's crib in the home. The mother stated that the crib was not placed near a wall. The doctor stated that a child with normal healthy bones would not sustain a fracture from kicking the side of the crib, however if there is some genetic reason why the bone is weakened, then it is plausible. Maria was admitted to Maimonides Hospital based on this injury and further testing was done; an MRI was done to ascertain if the baby had any bleeding within the brain, an ophthalmology consult was obtained and a skeletal survey was completed. According to Dr. Walker-Descartes, the skeletal survey is a head to toe x-ray of the body from multiple views to look at the intrinsic factors of the bone and to ascertain whether there are any fractures or abnormalities that would speak to the strength of the bone. Bones that are weakened look abnormal on the skeletal survey. The skeletal survey revealed no significant findings other than the femur fracture. Maria's bones appeared normal and healthy. Dr. Walker-Descartes also referred Maria for an endocrine consult to ascertain whether there were any metabolic abnormalities that could lead the child to have weakened bones. Dr. Walker-Descartes subsequently received results that the endocrine consultation was normal.
The MRI of the brain and the ophthalmology consults were both normal with no evidence of shearing injuries or retinal hemorrhaging. Dr. Walker-Descartes opined that a significant force was applied to the long axis of the bone, possibly from the bottom of the foot pushing up, causing a non-displaced transverse fracture, where the periosteal lining was still in tact. Dr. Walker-Descartes described the periosteal lining as the "saran wrap" or coating around the bone. On cross examination, the doctor testified that depending on the angle or the plane where the force was applied, the periosteal lining could be in tact or not intact but the significance is not the periosteal lining, but that the bone of a non-mobile forty four day old child is broken with no explanation. Dr. Walker-Descartes also testified that a fracture is going to cause instant pain whether it is a displaced fracture or a non-displaced fracture. Furthermore, when Dr. Walker-Descartes was asked on cross examination whether a forty four day old baby could sustain a femur fracture from being dropped and landing on the floor, she stated that the baby would have to land face down based on the fracture pattern that was revealed. The hospital reported the case to ACS, evaluated Maria for two nights, and then discharged the baby to the parents with a follow up appointment in two weeks for a repeat skeletal survey. At the time of Maria's discharge from the hospital, other than the fact that there was a fracture caused by a significant amount of force, Dr. Walker-Descartes could not make a conclusion as to what happened with Maria because she still had no mechanism. In attempting to ascertain how Maria's femur fracture could have occurred, Dr. Walker-Descartes contacted the primary care pediatrician's office to inquire about procedures done on Maria during the course of the last pediatric visit that was reported by the mother. Dr. Walker-Descartes discussed with the pediatrician whether there was any audible sound from Maria as the result of the Ortolani or Barlow technique, which Dr. Walker-Descartes described as the bending of the infant's leg at the knee and doing a circular [*5]motion to test the stability of the hips in the socket. There was no sound or response noted and Maria used both her legs fine afterwards.
On cross examination by respondent mother's counsel, Dr. Walker-Descartes rejected the possibility of a non-displaced femur fracture being sustained if the child is placed in a "snuggly" baby carrier and the parent bends over and the leg gets caught causing a bending force. Dr. Walker-Descartes explained that this could not occur in a healthy child with healthy bones and healthy bone density noting that "[p]arents bend over in snugglies all the of the time and don't break a bone." Dr. Walker-Descartes also added that in taking a history from the parents and going through all plausible mechanisms, a scenario involving the parent bending over in a snuggly was not presented to her. In answering the court's questions with regards to the amount of force needed to break the femur bone, Dr. Walker-Descartes described the femur as one of the strongest bones in the body, and that since there were no signs that Maria suffers from a condition such as osteogenesis imperfecta where the bones would be weakened, she equated the force necessary to that of a car accident, since that is the time she sees children of Maria's age with normal bones presenting with fractures.
Upon Maria's discharge from the hospital on October 11, 2012, there was still no final determination as to how the femur fracture occurred, however Dr. Walker-Descartes' multidisciplinary team recommended that Maria could be returned home to her parents with continued outpatient evaluation.
On October 29, 2012, the repeat skeletal survey was performed of Maria and showed a skull fracture on the left side over the temple. Maria was hospitalized inpatient for further testing at that time. Because the doctor was now presented with two fractures with no plausible explanation, Dr. Walker-Descartes referred Maria for a genetics consult and testing for osteogenesis imperfecta was ordered. Some genetics testing was referred to a lab outside New York State. Dr. Walker-Descartes testified that the age of the skull fracture could only be dated by comparing it with the skeletal survey that was done on October 10, 2012. After consulting with the pediatric radiologist, Dr. Paul Lui, who sat down and reviewed both the October 10th and October 29th skeletal surveys with Dr. Walker-Descartes, Dr. Walker-Descartes stated that it was clear that the femur fracture and the skull fracture were two separate events. Dr. Walker-Descartes classified this later fracture as a hairline fracture and that while there was no bleed or subdural hematomas, there was still head trauma because there was a fracture present "that should not be there." Dr. Walker-Descartes further stated that it is her practice to sit down with the radiologist to review x-ray films every time they are done. Dr. Walker-Descartes further testified that it was not possible that the skull and leg fractures could have occurred at the same time before the child was hospitalized on October 10, 2012. The doctor testified that the expected mechanism for this type of injury is "some force that was applied to the skull to cause the bone to fracture. So either the head was hit on an object or an object hit the head."
Although Dr. Walker-Descartes specifically asked the respondent mother about the child's normal routine and whether the child bumped her head, the respondent mother provided no explanation. The mother stated that there was a baby swing at the maternal grandmother's house, and Dr. Walker-Descartes asked the mother about whether the baby ever hit her head on a swing. The mother specifically denied this ever happening. Dr. Walker-Descartes testified that in her experience, most caregivers have an explanation for how a hairline fracture is sustained in an [*6]immobile infant who cannot roll, and that she takes a detailed history of who has been in the home and who has been handling the child, but if nothing is offered as part of the history she cannot make up the history. The doctor definitively stated that the baby could not have inflicted this injury on herself given her developmental age and inability to roll or move around. The doctor further stated that to crack the infant's skull would require that the child be at least three feet off the ground, which the baby was unable to do by herself. Therefore, the doctor's conclusion, to a reasonable degree of medical certainty, was that the skull fracture was inflicted. In response to the attorney for the children's questions on cross examination about the amount of force necessary to cause the skull fracture, the doctor responded that "a significant amount of force" is necessary to cause this type of injury. Dr. Walker-Descartes testified that a skull fracture is treated through follow up serial x-ray exams to make sure that the bones actually re-fuse. If the bones do not re-fuse properly there is a concern that the bones will move apart and the head will grow much faster than expected for a child of that age. This can lead to developmental problems ranging from blindness to an inability to walk. On November 2, 2012, Maria was discharged from the hospital back to her parents' care with weekly follow up appointments with Dr. Walker-Descartes, follow up appointments with endocrinology and genetics, and close ACS supervision.
Dr. Walker-Descartes reported that the respondent mother was very cooperative and compliant with all of Maria's medical appointments and brought the baby to all her scheduled doctors appointments with Dr. Walker-Descartes' office. Dr. Walker-Descartes also acknowledged that Maria saw her pediatrician regularly from birth on, and that Maria was seen by her pediatrician for regular well-baby exams as well as for additional appointments when the mother had specific concerns. On a December 5, 2012 follow up visit, Dr. Walker-Descartes observed the baby to have bruising about her face located on both her cheeks and the left side of the face by the temple.[FN1] The respondent mother told Dr. Walker-Descartes that the baby is very active in her sleep and hits herself in the face. Dr. Walker-Descartes testified, to a reasonable degree of medical certainty, that a child of that age could not inflict those bruises on herself. She stated that in order to get a bruise there has to be a "significant amount of force" to break capillaries under the skin which a child of Maria's age is usually unable to do. At that point, Dr. Walker Descartes spoke to the mother about referring the baby to a hematologist oncologist.
A follow up visit was scheduled with Dr. Walker-Descartes for the following week on December 12, 2012. At that visit, Dr. Walker-Descartes observed the baby with bruising on the right thigh and left hip. At that point, Dr. Walker-Descartes recommended that Maria be hospitalized inpatient for a third time to monitor the child for a possible bleeding and bruising disorder. Maria was admitted back to Maimonides on December 13, 2012. On December 14, 2012, Dr. Walker-Descartes did a full physical examination of the baby again and she noted that the bruising was a little more aged but still present. At this time, Dr. Walker-Descartes also noted that the frenulum in the child's mouth was torn and had some bleeding. Dr. Walker-Descartes described the frenulum as a thin piece of mucosa that attaches the lip to the top of the gum line, and a torn frenulum could be caused by "anything that would rapidly displace or stretch [*7]that piece of flesh, which could either be anything forcefully pushed in a child's mouth or any hit to the face." She further described the injury as acute, and that it happened within hours of her seeing the injury because there was still blood pooled there. During this time period, the parents were responsible for feeding the baby and the child did not undergo any procedures that would involve placing something in the child's mouth for evaluation purposes.
Dr. Walker-Descartes made it a point to draw the baby's blood herself to see if there were any issues with clotting or excessive bleeding. Dr. Walker-Descartes noted that Maria clotted fine. Furthermore, the doctor performed head to toe exams of the child on a daily basis throughout her six day hospital stay and found that no new bruises developed during the time that the child was in the hospital. During this third hospitalization, Dr. Walker-Descartes evaluated Maria for several "differentials" simultaneously, and the doctor considered a number of reasons for the child's presentation including a bleeding disorder, an inflicted injury, a birthmark, and eczema. Dr. Walker-Descartes noted that Maria had a "dry patchy scale" area on her skin that she evaluated and determined to be minor eczema since it did not change from day to day while Maria was in the hospital, and it was treated with moisturizer. Dr. Walker-Descartes noted that in contrast to the eczema, the bruises on Maria's body changed colors every day .
During the December hospitalization, a hematology/oncology consult was ordered, multiple blood tests were done, and there was no evidence of a bleeding or bruising disorder. There was one abnormality that was noted in the blood work, however Dr. Walker-Descartes clarified that it is usually abnormal in children of this age because the liver is immature, but it does not signify that there is a bleeding disorder; the routine practice is to repeat this blood test after the child is six months old and the liver has matured. She added that there is no clinical significance to this abnormality because children with this result do not bruise. Dr. Walker-Descartes indicated that she did refer Maria to be re-tested at six months old, and the result of that blood test was normal. There was also no family history of bone fragility or bleeding disorders noted by the parents.[FN2] Maria was also evaluated for a genetic condition known as Ehlers-Danlos Syndrome and the Maimonides geneticist found no symptoms of this disease. She was also evaluated for a clotting factor deficiency effecting the platelets, known as Von Willenbrand's Disease, and Maria displayed no clinical indications of this disease.
With regards to the torn frenulum, on cross examination Dr. Walker-Descartes stated that she was familiar with the medical literature surrounding a torn frenulum and acknowledged that in isolation, where this is the only finding on a child, it is not indicative of child abuse. Dr. Walker-Descartes explained that the torn frenulum is "very significant" here because it is not the only injury to Maria. Dr. Walker-Descartes further noted:
Again with the picture of two fractures, no explanation, bruising that we're still
evaluating and now a frenulum [tear], which is concerning for mishandling and even more so now in the context of those other findings highly indicative of a child being [*8]mishandled.
Neither parent gave Dr. Walker-Descartes any mechanism for the injury so it was another unexplained injury for the child. In terms of the child's expression of pain caused by the torn frenulum, Dr. Walker-Descartes stated that it is difficult to assess because the child might have pain but if you give her a bottle, she would still drink it because she is hungry. According to Dr. Walker-Descartes, it would be "impossible" for a child of this developmental age to generate enough force from hand to mouth contact to cause this injury to herself. The doctor further testified that to a reasonable degree of medical certainty, based on her assessments of Maria from October 2012 to December 2012, she came to the conclusion that the injuries, including the femur fracture, the skull fracture, the bruising and the torn frenulum, were "most likely inflicted." She further explained that the injuries "were inflicted because there were no mechanisms and no one could give a clear answer, nor was the child capable developmentally of inflicting these things on herself."
While Dr. Walker-Descartes was concerned that there was still no explanation for the bruising and the torn frenulum, the evaluation of Maria was still ongoing at the time she was ready for discharge from the hospital on December 19, 2012. Because the evaluation "was not complete to not send this child home," and because intensive preventive services were going to be put in the home along with follow up weekly medical appointments, Maria was discharged home to her parents. At one visit with the respondent mother and Maria, Maria was wearing an elastic beaded headband, and Dr. Walker-Descartes noted that there were three round marks on Maria's head from the beads pressing on the child's face, and that given Maria's evaluation and the doctors concerns, she told the mother to stay away from putting the child in beaded headbands.
Dr. Walker-Descates further testified that both parents were very involved with Maria's treatment during her three hospitalizations. She stated that they were both usually present, and that the mother and father took shifts overnight so that the children were never left alone. She also reported that they were very appropriate parents in the hospital, and there were no concerns about their behavior.
Dr. Walker-Descartes testified that she received the results of the external genetics testing in July 2013, which indicated that there was an irregularity or mutation in one of the collagen genes of unknown clinical significance. Dr. Walker-Descartes equated unknown significance with no clinical significance because there has been no clinical manifestation in any individual, and there are no studies done on this mutation. She further stated that to a reasonable degree of medical certainty, this irregularity in the collagen gene does not explain the femur fracture, the skull fracture, the bruises, and the torn frenulum, and that child abuse or mishandling is the only diagnosis that can explain all the injuries.
B. Maimonides Hospital Records
The Maimonides Hospital records document Maria's three hospitalizations. Notably, the records from the first hospital admission, October 9-October 11, 2012, show that Maria was admitted to the emergency room at approximately 8:45pm on October 9th. The respondent mother reported to emergency room staff that Maria had been having crying spells for forty five minutes to one hour and that she noticed Maria was not moving her right leg as much as before [*9]and that she cries whenever somebody touches it. It was noted that when Maria's right knee was flexed on examination, tenderness was present around the knee joint and that pain "on touching" was noted on the neonatal infant pain scale. The respondent father similarly reported "hysterical crying" from Maria over the last two days lasting one hour at a time. Maria was diagnosed with a femur fracture.[FN3] The respondents denied any trauma or injury to Maria as well as any history of bone disease in Maria or in the family. Maria's right leg was casted from hip to foot. An MRI of the brain and ophthalmology consult was ordered by Dr. Walker-Descartes and the results were normal.
Following the results of the October 29, 2012 follow up skeletal survey, Maria was hospitalized for the second time from October 31-November 2, 2012. Pediatric radiologist, Dr. Paul Lui, noted that "there is a skull fracture at the level of the parietal bone as seen on lateral view. There is no evidence for a metabolic or morphological abnormality." Again, both parents denied any history of trauma that would explain the skull fracture. Dr. Walker-Descartes ordered a second MRI as well as a second ophthalmology consult. She also ordered both an endocrine consultation and a genetics consultation for the purposes of determining whether Maria suffered from a metabolic condition that might compromise the integrity or strength of her bones. Maria's older sister Amanda was also hospitalized during this time period for evaluation and the results of her examination were normal and hematology/oncology cleared Maria of any bleeding disorders.
Following the bruises that Dr. Walker Descartes observed on Maria on December 5th, and December 12th, Dr. Walker-Descartes recommended that Maria be admitted inpatient for the third time to have a full hematology/oncology work up. Maria was hospitalized at Maimonides for the third time from December 13-December 19, 2012. A third ophthalmology consult and MRI was ordered and came back with normal results. Hematology recommended a host of blood tests and the results were all normal and "unremarkable." The records confirm that Dr. Walker-Descartes did daily head-to-toe skin checks of Maria to monitor her for any changes in the old bruises and for any new bruises. The records note that Maria continued to have the old bruises which were in a resolving phase, but no new bruises were found on Maria for the entire time that she was in the hospital.[FN4] Dr. Walker-Descartes noted the frenulum tear in the child abuse consult dated December 14, 2012 at 7:00am. It is described in the records as follows: "the labial frenulum is torn with pinpoint petechial and a bruise to the lip."[FN5] At the time of her child abuse consult, Dr. Walker-Descartes noted that her medical team was working with the NYPD and ACS to figure out a plausible mechanism for Maria's injuries or to evaluate for a genetic basis for [*10]the findings. She further noted that the torn frenulum "is highly specific for child abuse." The parents again denied any history of trauma or falls.
The medical records indicate that both parents were "extremely compliant" during all three hospitalizations and that there was always a parent at Maria's bedside. The parents were appropriate in all their interaction with Maria and the respondent mother was observed changing Maria's diapers, feeding, cuddling and consoling the baby, and being attentive to all the baby's needs. A psychosocial note from December 19, 2012 at 4:10am documented that the mother was concerned about leaving the baby in the hospital in the morning while she and the respondent father went to an ACS meeting. The mother arranged for the maternal grandmother to stay with the baby until the ACS meeting was finished. The mother was also consistent with her attendance at all out patient medical appointments.
C. Testimony of ACS Caseworker, Nadia McLeod
ACS caseworker, Nadia McLeod, testified on behalf of the petitioner. Ms. McLeod was the investigating caseworker for the S. family. Upon receiving the report from the State Central Register on October 9, 2012, Ms. McLeod interviewed both respondents at Maimonides Hospital. The respondent mother stated to her that Maria had been crying excessively for about two weeks. She stated that both she and Mr. S. decided to take the baby to the hospital because she noticed that when she touched the baby's leg, she would cry excessively. The parents learned of the baby's fractured leg in the hospital. Ms. S. stated that she is not sure how Maria fractured her leg. The respondent father similarly stated that he is not sure how Maria's leg was fractured and that he and the mother decided to take her to the hospital when Maria cried excessively when he changed her diaper and moved her leg.
The respondent mother told Ms. McLeod that Maria was given a vaccination in her leg at the regular pediatrician's office on October 1, 2012, and that during the administration of the vaccine, the mother stated that she heard a "crack. Ms. S. also told Ms. McLeod that on her mother's suggestion that she needed a break, both children stayed over at her mother's house for one night on October 7, 2012. Ms. McLeod also did a home visit on October 11, 2012 and noted that the repsondents reside in a two bedroom apartment where the girls shared a bedroom and had two separate cribs.
Ms. McLeod further testified that she received a second report from the State Central Register with regards to the family on December 14, 2012. When she asked the mother about the bruising on Maria's legs and face, the mother stated that Maria hits her face at night so she most likely caused the bruises by herself. With regards to the torn frenulum, the respondent mother stated that she was holding the baby waiting to be seen by the doctor at the hospital, when she noticed that the baby was bleeding from her mouth, but a nurse told the mother that everything was fine. Ms. McLeod also questioned the respondent father with regards to the bruising and the torn frenulum and the father stated that he did not know how Maria sustained the injuries.
Ms. McLeod also testified that from October 2012-February 2013, the respondents did not have a babysitter in the home, and that the children were primarily home with the mother while the father was at work, and home with both parents when he wasn't at work. Ms. McLeod was not aware of the mother having a job outside the home during the months of her investigation.
On cross examination by the attorney for the children, Ms. McLeod stated that on [*11]November 26, 2012, she did a home visit and observed a small, bluish circular bruise on Maria's right cheek. The mother attributed this bruise to a blood vessel that broke when Maria was crying. On January 28, 2013, Ms. McLeod did another home visit and noticed another bruise on Maria's temple. She described the bruise as small, circular, reddish bluish in color. The mother again stated that Maria had been screaming hysterically for five minutes and often gets these dots after crying.
Ms. McLeod further testified that throughout the course of her investigation, she has seen the parents interact with Maria, and they both respond to her cries, pick her up, talk to her, feed her, and she has observed Maria to appear comforted when held by her parents. She also noted that the S. family had no ACS involvement prior to the commencement of her investigation in October 2012. Furthermore, in evaluating the risk to the children, Ms. McLeod noted that Maria was a planned pregnancy and the mother received adequate prenatal care, the home was always appropriate, there was no history of domestic violence between the respondent mother and respondent father and no criminal history, no evidence of financial strain since the father was working full time, no history of mental illness, and no history of substance abuse.
III. THE RESPONDENTS' CASE
A. Testimony of Respondents' Expert, Dr. Phyllis Dunn Weiner
The respondent mother offered the testimony of Dr. Phyllis Dunn Weiner as part of the repsondents' rebuttal case. Dr. Weiner's curriculum vitae was placed into evidence as Respondent Mother's Exhibit 1, and the parties stipulated to the court qualifying Dr. Weiner as an expert in pediatrics and child abuse. Dr. Weiner has worked as a pediatrician for the past fifty years and is currently the chairperson of pediatrics at the St. Georges University School of Medicine in Grenada. Dr. Weiner stated that she primarily testifies on behalf of respondents, but she did last testify for ACS in 2004.
Dr. Weiner testified, to a reasonable degree of medical certainty, that although Maria sustained "definite" injuries, Maria was not abused. Dr. Weiner testified that she was contacted by the respondent mother's attorney in June 2013 to review the case. In formulating her conclusion, she reviewed the instant Article 10 petition, the ACS notes, the Maimonides Hospital records of Maria's three admissions, the notes of Maria's private pediatrician, the mother's pre-natal and birth and delivery records, the genetics consult and accompanying lab work, the transcripts of the testimony of Dr. Walker-Descartes, ACS caseworker Ms. McLeod, and foster care agency caseworker Ms. Coleman. Dr. Weiner also had conversations with Dr. Walker-Descartes, experts in radiology namely, Dr. Jack Levenbrown, and she interviewed the mother and father. Dr. Weiner did not examine the child Maria or her sister Amanda. Dr. Weiner stated that when her services are requested, her protocol is to review all available medical records, gather information from other consultants that have expertise in the field, speak to all specialists, interview the parents, and review or request laboratory information. Dr. Weiner testified that Maria first suffered a transverse fracture to the distal end of the femur. Dr. Weiner classified it as an "incomplete break of the femur" because it was in tact on one side. She further stated that it was an "unwitnessed event" which she defined as the parent being in another room or with the child and "didn't put two and two together."She further testified that both Maria's growth plate and periosteal lining was in tact which led her to believe that this fracture was caused by "minimal trauma" from a "bending force" and suggested that the leg could have been entrapped [*12]by a strap from a baby carrier such as a "Baby Bjorn," or from being picked up out of a high chair or stroller. Dr. Weiner noted that there was minimal swelling to the area and that if there was greater than a minimal force, you would see bruising. Dr. Weiner agreed with Dr. Walker-Descartes' description that the femur fracture was an "acute" injury, and she defined acute as anywhere between twelve hours before all the way up to five days before. While Dr. Weiner acknowledged that the femur is one of the strongest bones in the body, she stated that the force required to fracture the bone is variable and referenced a study in the literature involving "exersaucer fractures" that have occurred in "three to four" cases where the child sits in a seat and swirls themselves around with their foot down on the bottom of the exersaucer causing the femur to twist and break.
Dr. Weiner disagreed with Dr. Walker Descartes' opinion that this was a compression fracture caused by a vertical force from the heel. Dr. Weiner testified that for the force to come vertically from the heel and miss the growth plate is a "physical impossibility" as the child would bend at the knee and you would expect to see injury to the growth plate or physis. She further stated that she got a second opinion from pediatric radiologist Dr. Levenbrown because he was a "go to" person for her and that he concurred that this could not be vertical force. Dr. Weiner also testified that "a radiologist would not be the person to give an opinion on how the break occurred."
Dr. Weiner testified that according to her conversations with geneticist Dr. Jessica Davis, who she described as nationally known and the best physician in the city on the subject of osteogenesis imperfecta or brittle bone disease, that "[t]here is a definite osteogenesis imperfecta variant." Dr. Weiner further averred that according to Dr. Davis, she has not seen this exact variant before so it has "unknown significance." She then later stated that the finding has "profound significance" because collagen is the scaffolding of the bone, comprised of sequences of molecules including amino acids, and with osteogenesis imperfecta, there is an abnormality with the manufacturing of the collagen and when amino acids are not put together in the right sequencing you have weak or inadequate collagen. Dr. Weiner stated that the father had the same finding in his lab work, had fractures as a child, and is short in height which could be significant in osteogenesis imperfecta.
According to Dr. Weiner, if a bone "was involved with osteogenesis" it would break with minimal trauma, and that "ordinary handling and bumping and brushing up against something" could result in a broken bone. When Dr. Weiner was questioned on cross examination about the variant of unknown significance, she conceded that Dr. Davis did not diagnose Maria with osteogenesis imperfecta and stated the following:
We're a little bit in an unknown because this is an evolving field. We have a father and a daughter with similar mutations, If you're saying that the father never had fractures as a child, that he's just making up a story I do not concur with that because when questioned people tend to give information. I don't think that he is that canny that he would think of making up these stories and we have a child with blue sclera and fractures early in life.
Dr. Weiner concluded that she did not have any of the father's medical records and that the respondent father was the sole source of information that he sustained two fractures when he was under four. Dr. Weiner further stated that the respondent father did not have a specific memory about the fractures and that this was all relayed to him by his mother. In addition to the blue [*13]sclera, Dr. Weiner also noted that she found that the urine test that was done in connection with the genetic testing showed high levels of cross linked collagen, a finding that is significant to an osteogenesis imperfecta diagnosis.
Dr. Weiner further opined that even without osteogenesis imperfecta, Maria could have sustained the fractures accidentally. However, with osteogenesis imperfecta "in the picture," Dr. Weiner testified that this lends support to the these fractures being accidental with minimal pressure to the point where the parent may not have recognized that the fractures occurred. Dr. Weiner also did not ascribe any significance to the fact that Maria had not sustained any additional fractures in the ten months that the child had been in foster care at the time of her testimony, stating that with mild osteogenesis imperfecta Maria may never sustain another fracture in her life. Dr. Weiner conceded that she was not familiar with the literature surrounding osteogenesis imperfect and its rate of diagnosis. She further stated that in her fifty years of experience as a pediatrician, she has diagnosed it about two times, and both times she sent the patients to Dr. Jessica Davis because she is the "foremost authority" in the field.
Dr. Weiner further testified that the follow up skeletal survey that was done on Maria several weeks after the first survey had a second fracture to the skull that was not there before. Dr. Weiner described the skull fracture as a "faint hairline crack " and a "very minor fracture" with no obvious redness, swelling, or bump that hospital doctors or the mother felt. She further classified it as "very short and tiny." Dr. Weiner noted that Maria had three MRI's done over the course of her three hospitalizations at Maimonides and each MRI was normal with no signs of trauma and she also had opthamological exams which were normal. She further stated that very little force was used because there was no soft tissue injury and the fracture was gone by a January x-ray. Dr. Weiner opined that the fracture could have been caused by a bump or a fall. Dr. Weiner further stated that she normally sees short hairline skull fractures in the parietal region when infants fall off an examining table or get bumped against a doorway.
Dr. Weiner further noted that the records indicate that Maria had blue sclera which she stated is a major finding in osteogenesis imperfecta or brittle bone disease. She opined that after her conversation with geneticist, Dr. Davis, osteogensis imperfecta "is very much in the differential diagnosis" because there was an abnormality in the child's collagen. Dr. Weiner further stated that based on her evaluation of the femur fracture and the skull fracture and her review of the records, she concluded that there was no evidence that these were abusive fractures. With respect to the bruises that were found on Maria, Dr. Weiner described Maria as having bruising that was "minor but definite" and opined that Maria had "easy bruisability." Dr. Weiner stated that during Maria's December hospitalization, she developed bruises at blood drawing sites and that the records show that the child developed bruises during her hospital stay that were not there on admission. Dr. Weiner noted that Dr. Walker-Descartes followed the case very carefully and slowly and that the baby was worked up for a hematological condition and cleared for a bleeding disorder. She further stated that Maria was not evaluated for a condition known as "Von Willebrand disease" which is a blood coagulation condition that leads to excessive bruising due to a deficiency in the Von Willebrand factor.
With respect to the torn frenulum, Dr. Weiner stated that based on her review of the medical records, Maria did not have a torn frenulum, but only "decreased tension" and that only "transient bleeding in the area" was noted. She further stated that it was a "slight injury" that [*14]"lasted a short time" and that this was a baby who had sharp fingernails and was always pushing fingers into her mouth. Dr. Weiner also conceded that since she never examined Maria at the time of the injury, she did not know what Dr. Walker-Descartes saw. Dr. Weiner noted that according to the records, there was no indication of trauma to the mouth and the baby fed normally. Dr. Weiner opined that if the baby had injury to her mouth she would not suck or feed well and that did not happen here. Dr. Weiner testified that she did not think the torn frenulum was relevant to the issue of child abuse.
Dr. Weiner concluded that in her opinion Maria was not abused and that she did not find any evidence that Maria was abused, however she further indicated: "I do have evidence that this child has an osteogenesis imperfect variant and that is a very strong indicator of fracturing,"
B. Testimony of Respondent's Expert, Dr. Jack Levenbrown
The respondent mother presented the testimony of Dr. Jack Levenbrown, who was qualified as an expert in pediatrics, pediatric radiology and radiology on consent of all counsel.[FN6] Dr. Levenbrown testified that he is currently on staff at North Shore University Hospital. Dr. Levenbrown has been qualified as an expert in multiple New York State Family Courts, in Criminal Court and courts in other states. Dr. Levenbrown stated that he has testified on behalf of ACS and the District Attorney's office, however most recently, he has testified mainly for the defense. Dr. Levenbrown was contacted by Dr. Weiner and counsel for the respondent mother to review Maria's medical records and x-rays. In evaluating the case, Dr. Levenbrown had several conversations with Dr. Weiner, reviewed Maria's Maimonides Hospital records, her x- rays, case records, and the testimony of Dr. Walker-Descartes [FN7], genetics reports, and the testimony of ACS caseworker, Nadia McLeod. Dr. Levenbrown further testified that in evaluating whether an injury is abusive or accidental, he considers the types of fractures and any history given that may or may not explain the fractures, the background of the child, including whether the baby was premature or full term, and whether the child suffers from any condition that would weaken the bones such as osteogenesis imperfecta or ricketts.
Dr. Levenbrown testified that a spiral fracture is most characteristic of abuse, and that Maria did not have a spiral fracture, but that any fracture that occurs can be abuse, or be an accident. Moreover, a transverse, non displaced fracture can happen from a child falling from a height or it can happen from extreme willful abuse.
Dr. Levenbrown stated that his review of the medical records did not reveal any accidents, or falls, or history that would provide an explanation for Maria's fractures. There was nothing in the history about the child's leg being entrapped in a swing or in a seat. Dr. Levenbrown did not interview or speak with either parent and did not examine Maria as part of his evaluation. Dr. Levenbrown also did not speak to Dr. Walker-Descartes, the treating physician. Dr. Levenbrown stated that he normally does not speak to parents or the treating physician. Dr. Levenbrown described the fracture to Maria's femur as a transverse fracture of the distal femur that did not involve the growth plate. He further described the fractures as being [*15]in the lower part of the femur above the metaphysis. The bone was also intact on the lateral or side view. Dr. Levenbrown further testified that based on his review of Maria's x-rays, her bones seemed normal and were not markedly deostified, and that he did not see any sign of rickets or overt bone disease, with the caveat that it would take a lot of demineralization to show up on a plain x-ray. Dr. Levenbrown also agreed with Dr. Walker-Descartes' assessment that this was an acute fracture because the x-ray showed no evidence of healing in the form of periosteal reaction, however he defined acute as within five to seven days. Dr. Levenbrown further explained that the femur is the widest and longest bone of the body and probably the strongest bone in the body and that the femur of a forty four day old baby is not nearly as a strong as the femur of a several year old child. Dr. Levenbrown opined that the force applied to Maria could not have come from the foot up because he would expect injury to the ankle or the growth plate area around the knee before even seeing an injury to the femur in that situation, and Maria had none of those injuries. Dr. Levenbrown stated that Dr. Walker-Descartes' testimony that the force of a car accident is required to fracture the femur is "going way too far."
In Dr. Levenbrown's opinion, a transverse fracture of the distal femur alone is a very unusual fracture for abuse. Dr. Levenbrown further testified that Dr. Weiner's opinion that the femur fracture was caused by a bending force if the knee is entrapped and the leg is pulled with "some force involved" is a "good possibility." He also opined that it could have been from a fall or from direct trauma, adding that "we don't know what happened exactly," however he asserted that it did not happen from Maria kicking her legs spontaneously. When questioned about what level of pain the child could experience from an accidental bending force, Dr. Levenbrown stated that it is hard to know since so much depends on the movement of the leg, and if the leg is casted to prevent movement there's less pain than one would have during the movement process. However, he did also state that if the leg area was moved, like in the movement required to change a diaper, then he would expect that there would be pain and tenderness based on his review of this fracture.
Dr. Levenbrown further stated that if you have osteogenesis imperfecta, then you can fracture more easily with even normal handling, however he also acknowledged that he is not that familiar with osteogenesis imperfecta variants as that is not his area of expertise.
To a reasonable degree of medical certainty, Dr. Levenbrown concluded that the femur fracture was an accidental injury, and that despite not having any history of what went on, based on the type of fracture, the absence of other injuries such as rib fractures, retinal hemorrhages, bleeding inside the head, the injury fit much more for an accident than for abuse.
With regards to the skull fracture, Dr. Levenbrown testified that Maria's October 29th skeletal survey "unquestionably" showed a skull fracture that was not present on the first skeletal survey done on October 10th. Dr. Levenbrown described the fracture as a simple fracture of the parietal bone on the top of the head, meaning that it was a simple break in the bone without the fracture line going all over the place or widely separated. When Dr. Levenbrown was questioned about whether or not this is a hairline fractures he classified it as "a touch more than a hairline," meaning that this was a localized fracture of the upper parietal bone and the pieces were "a tiny more separated than hairline." Dr. Levenbrown described it as a "fresh" fracture, meaning several days or even a week old, that was not present weeks before, and that soft tissue swelling was also present. Dr. Levenbrown opined that the fracture was caused by the skull [*16]hitting something or something hitting the skull, but that there was definitely some type of impact by either a "fall or a blow or a bumping into something." He further opined that since there was no bleeding inside the head and no contusion to the brain, a simple fracture such as this does not have a high correlation with abuse.
In describing the skull fracture, Dr. Levenbrown drew an analogy to the "FedEx" delivery of a laptop computer, stating that the box that the computer came in could be damaged in some way but the computer inside is perfectly fine. His neighbor, on the other hand, could get the same delivery and the box is perfectly fine but the computer is "smashed to smithereens." The point of the analogy, as Dr. Levenbrown explained, is that one does not correlate with the other. You can have internal injury even if there's no sign of external injury; and the opposite is also true - external injury without internal injury. He stated that in Maria's case, the packaging got damaged without anything happening to the contents and it is not something that will affect the child's future functioning. Dr. Levenbrown further stated that in assessing the presence or absence of bruising as it relates to fractures, you can have a fracture with bruising, a fracture without bruising, or bruising without a fracture, and that you cannot tell whether an injury has been inflicted on a child by the presence or absence of bruising or swelling. Dr. Levenbrown concluded, to a reasonable degree of medical certainty, that the fracture of the skull "happened in some accidental way that we're not getting the history of."
When asked on cross examination by the attorney for the children, whether it is common to take the totality of the injuries in evaluating abuse, Dr. Levenbrown stated that he looks at everything separately and everything together and that each fracture has a low specificity for abuse and "accidents happen." He further concluded that it is his opinion that Maria is not an abused child and that the femur fracture and the skull fracture, although close in time, were accidental. Dr. Levenbrown also testified that in his review of the medical records, he saw no delay in the parents bringing Maria in for the follow up skeletal survey as requested by the hospital. When asked about the level of pain that the child would have experienced at the time of the skull fracture, Dr. Levenbrown stated that this is a difficult question that he really cannot address because any impact to a child would elicit some crying.
When questioned about the bruises that Dr. Walker-Descartes observed on Maria's face on December 5, 2012, Dr. Levenbrown stated the he recalled bruising on the face however he did not recall it to be a big part of the findings. Dr. Levenbrown also could not recall the bruises that Dr. Walker-Descartes discovered on the child's right thigh and left hip. When Dr. Levenbrown was questioned about the torn frenulum, he deferred to Dr. Weiner's opinion. Dr. Levenbrown noticed the torn frenulum was documented in the records however, he did not see pictures of the injury, and he was not sure how much significance to give the torn frenulum, and was unsure of how the injury could have occurred or "how it would even fit into the case." When the court asked Dr. Levenbrown whether the possibility that these injuries were accidental decreases because of the multiple injuries that the child sustained, Dr. Levenbrown stated: Everything is suspicious. Anybody who looked at this case and said off the top of their head this is nothing, you know, would not be doing the right thing, but when you evaluate it all I come to the conclusion that it's more likely than not this is accidental. I don't know where to put the bruising [and] the frenulum, I didn't see it, I generally have someone else's description who may or may not be accurate, presumably accurate, but I'm not sure [*17]exactly what the extent of it would be. In some cases I actually see pictures. I don't recall seeing any pictures of any of this.
Furthermore, Dr. Levenbrown testified that he did not ascribe any significance to the fact that Maria had not sustained any fractures in the time that she has been in foster care, and that it just means that she had no further accidents and that she is older, and her bones are stronger. If more fractures had occurred, Dr. Levenbrown would be worried about inherent bone abnormality or an abusive situation.
C. Testimony of Respondent MotherThe respondent mother testified that in the days leading up to October 9, 2012, her mother offered to watch the girls to allow the respondents "to get just a little break . . . a few days off" from Maria—who respondent mother described as a "very colicky, active" baby. Respondent mother described Maria to be colicky in that she cried excessively due to constipation, gas, or sometimes for no discernable reason. She testified that Maria cried excessively at least once every day for a period that lasted about ten to forty five minutes each time. To soothe her, respondents would walk and rock her, feed her, or sometimes give her a suppository. She stated that neither she, nor respondent father, ever lost patience with Maria and that they would take turns attempting to comfort her.
The respondent mother further testified that the girls were in the care of her mother for the two days prior to the discovery of Maria's fractured femur, October 7th and October 8th. The mother stated that she first noticed that Maria was using her left leg less than normal on October 7th. Respondent mother stated that while she was at her mother's home, a few of her mother's friends came by during those few days, but she did not know who was at her mother's house when she was not present. Respondent mother recounted that on October 9, 2012, she and her mother were running errands while her father and the respondent father were home with Maria. When she and her mother returned home, respondent father informed her that Maria's crying seemed to be different when he changed her diaper that day; it seemed to the father that Maria was screaming even louder when he lifted her legs to put her diaper on. She and the father checked Maria's body to see if she was injured but they did not detect anything abnormal. However, since she was crying more excessively than what was typical of her usual colicky behavior, they took her to the emergency room.
On cross-examination, respondent mother stated that during the month of October 2012, she typically changed Maria's diaper anywhere from eight to twelve times per day. However, she could not remember whether she had changed Maria's diaper on October 9th. When asked why Maria's injury was not noticed until respondent father changed her diaper late that afternoon, the mother responded that she either did not notice that the crying was more pronounced because Maria was colicky or that Maria simply did not scream as much with her as she did when respondent father changed her. However, respondent mother testified that she did notice that Maria was using her injured leg less that day but she attributed it to Maria being "a little lazy" and stated that it is hard to tell when something is wrong with a colicky child.
According to the mother, Maria had a shot on October 1, 2012 at her regular pediatrician's office, Dr. Darevskaya. The mother stated that her pediatrician explained to her [*18]that Maria was colicky and that it was normal for a baby's leg to become red or for a baby to run a fever the week after receiving a shot. Ms. S. stated that while she was at the hospital, the doctor x-rayed Maria's left leg because it was swollen, but that she did not notice the swelling because of Maria's baby fat. When respondent mother was informed that the x-ray revealed a femur fracture, respondent mother stated that she was in complete shock from the diagnosis; she was "speechless, very upset, [she] didn't know how this could have possibly happened." Due to her disbelief, she asked to see the x-rays and asked the doctors what could have caused the fracture because neither she nor respondent father could explain the cause of the injury.
The mother testified that on October 10, 2012, both respondents met with Dr. Walker-Descartes, who attempted to jog their memory as to any incident that could have led to Maria's fracture. Dr. Walker-Descartes asked whether Maria fell down, hit her leg, had her leg pulled by Amanda, or if Maria was left unattended and rolled off the bed, but the respondents could not provide any explanation. After Maria was released from the hospital, the children were in the care of the mother, father or the maternal grandmother, but mostly in the father's care because the mother worked the night shift at Applebee's restaurant four nights a week. The mother stated that she had no concerns about the care that either respondent father or maternal grandmother provided to the girls. When Maria was diagnosed with the skull fracture, the respondent mother stated that Dr. Walker-Descartes asked whether Maria fell, hit her head, or had a toy banged against it by Amanda, but the mother did not know how the injury occurred. As a result of the discovered skull fracture, respondent mother cooperated with Dr. Walker-Descartes' request to admit both children to the hospital for further observation. Respondent mother testified that she cooperated with Dr. Walker-Descartes' request because she had nothing to hide and because she was concerned that Maria continued to sustain fractures. After the second hospitalization, the respondent mother continued to take Maria to all follow up medical appointments. The respondent mother stated that she quit her job at Applebee's on November 3, 2012 so that she could better focus on Maria, the ACS investigation, and complying with all scheduled follow up medical appointments.
On the December 5th follow up visit with Dr. Walker-Descartes, Maria presented with bruises on her face. Respondent mother told Dr. Walker-Descartes that she had a conversation with Maria's pediatrician who explained that the baby's excessive crying could cause the veins or capillaries in her face to burst, resulting in facial bruising. The mother further testified that on another visit with Dr. Walker-Descartes, Maria had a mark on her left thigh, which respondent mother could not explain. Respondent mother stated that she and the father cooperated with Dr. Walker-Descartes' recommendation to admit Maria inpatient to determine if she had an underlying bleeding disorder. The mother stayed in the hospital with Maria during this hospitalization. She stated that they took turns relieving each other so that the other could return home to shower or get fresh clothes. During this hospital stay, the maternal grandparents cared for Amanda.
With regards to the injury to Maria's frenulum, the mother stated that while she was [*19]waiting for Maria to be admitted to the hospital in December 2012, she spoke with another mother in the waiting room. While chatting, the other woman noticed—because Maria was facing her—that Maria had blood-saturated saliva coming from her mouth. Respondent mother testified that she checked Maria's mouth to ensure that nothing was inside and then took her to the triage area; the nurse told her that she did not see anything wrong. Dr. Walker-Descartes examined Maria, and informed respondent mother that Maria had a torn frenulum—an injury that only occurs if the baby had a bottle or pacifier forced into her mouth. Respondent mother explained that she does not "personally" force the pacifier or bottle into Maria's mouth and that she places it near Maria's mouth and allows her to grip onto it if she chooses. She further asserted that sheis gentle with the bottle or pacifier, and from what she has observed, respondent father is not forceful either.
Upon Maria's discharge from the December 2012 admission, Dr. Walker-Descartes informed respondent mother that all the blood tests were negative and there was one test that needed to be repeated when Maria turned six months old because Maria's liver was immature. The mother further testified that after Maria's release from the hospital, she complied with every weekly follow-up appointment with Dr. Walker-Descartes except for one occasion where the mother was too sick to bring Maria to the appointment. On this occasion, Dr. Walker-Descartes went to the mother's home to examine Maria.
D. Testimony of Respondent Father
The respondent father testified that he is married to the respondent mother and they have two children, Maria and Amanda. He stated that Amanda is not his biological daughter, however she has lived with him since her birth and he is one of her primary caretakers. In October 2012, Mr. S. was working for a water company full time, the same job he has now. Mr. S. testified that his work hours were from 8:00am-4:30pm, and that he left the home at approximately 5:30am to get to work. The time he gets home depends on which borough he is in however he is usually home no later than 7:00pm. Mr. S. described Maria as baby who was "constantly crying" and was "very colicky" and that sometimes Maria would cry and he could not figure out why. He stated that when Maria cried he would pick her up, walk back and forth, put her in a swing or rock her, but nothing would get the crying to stop. The respondent father stated that he tried to comfort Maria the best he could, but he never lost patience. When questioned about Maria's three hospitalizations in 2012, the respondent father had some difficulty recalling what each hospitalization was for. According to the father, in October 2012, the only people who took care of the children were him, his wife, and his mother-in-law. The subject child Amanda was never left alone with Maria. The father noted that both children stayed over his mother-in-law's house on October 6, 2012 and October 7, 2012 over Columbus Day weekend. According to the respondent father, he spent both days with the girls at their grandmother's house, leaving at approximately midnight on both evenings. On October 8th the respondent father went to work, and after he came home from work, he went to his mother-in-law's home where he played with the kids, fed them, and changed them. At approximately 5:30pm or 6:00pm, the respondent mother and the maternal grandmother left the home to do errands. The respondent father testified that he noticed "excessive screaming" from Maria when he tried to change her diaper. [*20]He described Maria's screaming as "louder than normal," and she was "starting to turn colors." When the respondent mother returned to the maternal grandmother's home, both he and the mother decided to take Maria to the emergency room. Amanda stayed in the home of the maternal grandmother while the parents went to the hospital.
Mr. S. testified that he was "shocked" and upset to find out that Maria was diagnosed with a femur fracture and that he met with Dr. Walker-Descartes who asked him if there was any way that Maria could have been dropped or put down somewhere where she was able to roll over and fall. Mr. S. testified that he told Dr. Walker-Descates that Maria was not dropped, nor was she left alone anywhere and that he showed the doctor how he handled Maria "[n]ot with excessive force, lightly because she's a child" He further testified that he told the same thing to Special Victims Unit detectives, and the ACS caseworker Ms. McLeod. The father was also not aware of Maria ever getting stuck in a swing or a car seat. The father further testified that at forty four days old, Maria was placed in a walker with wheels and that she was able to roll over from her stomach to her back and also from her back to her stomach. The father did not know how Maria could have sustained this injury, and he was not suspicious of anyone that could have possibly caused the injury to Maria. The respondent father stated that after Maria's discharge from the hospital, he treated Maria "more cautiously" because her leg was in a cast, and he cooperated with ACS supervision, and the respondent mother brought the baby to follow up appointments with the pediatrician and Maimonides Hospital. Maria continued to be cared by the respondent mother. When asked whether the girls stayed with anyone else the respondent father responded "grandparents if anything."
The respondent father further testified that when he learned of Maria's skull fracture several weeks later he was again shocked and upset and he did not notice anything out of the ordinary with Maria before she was hospitalized. The respondent father stated that there was nothing that could have caused the skull fracture and there was no time that Maria's head accidentally bumped into something. He further testified that she was always either in her crib, walker or her swing but never left unattended where she could fall. When the hospital wanted to admit both Maria and her sister Amanda for evaluation, the respondent father agreed. After Maria was discharged from the hospital, she was in the care of the mother while he was at work and Maria continued to have appointments at Maimonides and Dr. Walker-Descartes. The respondent father continued to work full time.
With regards to bruising on Maria, the respondent father said that he was not aware of any bruises on Maria's hip or thigh but that she did have "little dots" that "looked like pimples" on her cheeks. It was the father's understanding from Maria's pediatrician that the dots were the result of Maria's excessive crying that would cause blood vessels to burst. During Maria's third hospitalization in December 2012, Amanda stayed with her maternal grandmother and upon Maria's discharge after the third hospitalization, he continued to work the same schedule while Maria was in the care of the respondent mother or the maternal grandmother.
IV: THE PETITIONER'S REBUTTAL CASE: Testimony of Dr. Jessica Davis
The petitioner called geneticist, Dr. Jessica Davis as a rebuttal witness. On consent of all [*21]counsel, Dr. Davis was qualified as an expert in genetics.[FN8] Dr. Davis has been board certified in the field of medical genetics since 1984 and is currently the co-director of the medical genetics program at the New York Hospital-Cornell Medical Center. Dr. Davis is also the co-director of the Kathryn O. And Alan C. Greenberg Center for Skeletal Dysplasias at the Hospital for Special Surgery. Dr. Davis has been an associate professor of clinical pediatrics since 1977 and she has held various teaching positions at different hospitals over the last fifty years. Furthermore, Dr. Davis has been published approximately fifty three times. Dr. Davis testified that Maria was referred to her by Dr. Kupchik, a geneticist at Maimonides Medical Center, for the purposes of a genetic workup and to interpret laboratory results. Dr. Davis met Maria for the first time on October 15, 2013, approximately eight months after the filing of the Article 10 petition. Dr. Davis testified that a general genetic workup entails an interview session, a physical exam, obtaining a full medical history and family history, and constructing a family tree. A review of systems that are not necessarily part of the presenting problem is also performed as is a review of any available medical records. In the case of Maria, Dr. Davis followed this protocol but noted that she did not receive any records from Dr. Kupchik.
Dr. Davis noted that there was "nothing untoward about her exam, there was nothing that was striking, she was proportionate, she had normal regular facial features." Dr. Davis testified that she did not see any bowing in Maria's bones and that she did not see blue sclera. Dr. Davis defined sclera as the whites of your eye and she noticed that Maria had a "little blue tinge as a reflection of he blue irises." She further noted that Maria was a "sturdy" child, that her hearing seemed to be good and that there were no general findings. Dr. Davis testified that Maria had targeted genetic testing done of her collagen 1A1 and collagen 1A2 genes, which she described as "molecular genetic tests that look across these long genes, stretches of DNA where we know a fair amount the structure, not everything, but we know a fair amount about it so that the lab is looking for differences." Dr. Davis further stated that these tests were sent out to a lab named Athena, which is located in Worcester, Massachusetts, and that the lab was looking for changes in the building blocks of the collagen genes. Dr. Davis explained that the tests could come back in one of three categories: either negative, meaning they did not find anything, positive, meaning that there is at least one documented case in the literature of someone else having the same finding, or a "variant of unknown significance," which is what Maria's test showed. Dr. Davis further testified that a "variant of unknown significance" means that there is a variation that has not been reported before, and has never been seen in the literature. It is not a result that can be interpreted. Dr. Davis added "[i]t's not great terminology, but it really says we don't know, we found this, now the burden is on time, laboratory advances."
Dr. Davis further explained that Maria had an exchange of a little building block called glycine and that it was substituted for an amino acid called alanine. According to Dr. Davis, this means that it may or may not be the cause of the injuries, that it could lead to subtle changes in the structure of the collagen or more flagrant changes, or no changes at all. Dr. Davis also stated that this is the first time that she has seen this variant and there is no reported case on this variant and that "[w]e don't know what it's doing or not doing." Dr. Davis also indicated that Maria's [*22]bone chemistry was studied, as were other things that could "imitate fragile bone disease" such as parathyroid problems, and those conditions were ruled out. The medical records of Dr. Davis that were introduced into evidence as Petitioner's Exhibit 9 further document that in addition to the molecular genetic test, Maria had a chromosome analysis and no variants were seen. Furthermore, Dr. Davis noted that the family history is unremarkable with no family members who are known to have osteogenesis imperfecta. The records indicate that osteogenesis imperfecta occurs in 1 out of 10,000 individuals. Dr. Davis did not attribute any significance to the fact that Maria did not sustain fractures in the three months that she was in the care of the parents after the skull fracture was discovered nor did she find any clinical significance in the fact that Maria has not sustained any fractures in the year that she has been in foster care.
Dr. Davis further testified that targeted DNA testing was done of both parents, and the respondent father was discovered to have the same "variant of unknown significance" as Maria, Dr. Davis stated that this simply means that since an individual gets half of his or her genes from each parent, a parent has something that they are passing on. Dr. Davis further added that the finding is present in two generations however "[h]ow it plays out in life is great mystery." Dr. Davis performed a physical examination of the respondent father and took a family history from both parents. Dr. Davis noted that the father had fractured two bones when he was younger after tripping. Dr. Davis found the respondent father to be a healthy man, that he did not present with any bowing of the bones or blue sclera. There was nothing unusual about his physical exam.
Dr. Davis concluded that Maria would need to be followed up over time to determine if the variant played a causative role in her injuries. Dr. Davis further opined that based on all the "unknowns" at this point in the field of genetics, she is not able to make a diagnosis to a reasonable degree of medical certainty. On cross examination, Dr. Davis clarified that she cannot make a diagnosis of a genetic disorder or osteogenesis imperfecta, and that the variant "plays no role" in determining what caused the fractures. She further characterized the field as a "moving target." Furthermore, Dr. Davis was also asked on cross examination by the attorney for the children whether or not she agrees with Dr. Weiner's statement that Maria "definitely" had an osteogenesis imperfecta variant. In response, Dr. Davis stated the following: "I think I've spent the last hour saying no, it's not diagnostic, otherwise it would not be a variant of unknown significance..." Dr. Davis denied ever classifying this as an osteogenesis imperfecta variant, and clarified that there is a "variant in a collagen gene." The respondent father's laboratory results from Athena Diagnostics were consistent with the testimony of Dr. Davis with regards to the variant of unknown significance:
No information is available on whether this variant segregates with disease in families tested at Athena Diagnostics or in published research...There is not enough information regarding co-occurrence with known disease variants among index cases to be useful in characterizing this variant.... It is unknown whether these sequence variants may lead to, or be causative of disease.
V. DISCUSSION
The determination that this court must make at fact finding is whether the petitioner has proven by a preponderance of the evidence whether children are abused or neglected. F.C.A. [*23]§1046(b). To establish a fact by a preponderance of the evidence means that the petitioner must only prove that the fact is "more likely than not to have occurred." Matter of Beautisha B., 115 AD3d 854 (2nd Dep't 2014); see also Matter of Katrina W., 171 AD2d 250 (2nd Dep't 1991) (holding that a preponderance of the evidence standard in abuse cases does not offend due process and rejecting the argument that a higher standard of proof such as clear and convincing proof is required in an Article 10 abuse proceeding).
A child is abused, within the definition of F.C.A. §1012(e)(i) or (ii), when a parent or other person legally responsible for the care of the child
inflicts or allows to be inflicted such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, orcreates or allows to be created substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ
Family Court Act §1046(a)(ii) provides that proof of injuries to a child that would ordinarily not be sustained in the absence of an act or omission of the caretakers shall be prima facie evidence of abuse or neglect. Therefore, a prima facie case of abuse may be established by evidence of the injury and evidence that the respondents were the caretakers of the child at the time the injury occurred. The statute authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitor. See Matter of Philip M., 82 NY2d 238 (1993). Once the petitioner has established a prima facie case, "the burden of going forward shifts to the respondents to rebut the evidence of parental culpability"; however, "the burden of proving child abuse always rests with the petitioner." Id. at 244. Furthermore, the identity of the individual who abused the child does not have to be established. For example, in Matter of Fantaysia L., 36 AD3d 813 (2nd Dep't 2007), the Appellate Division, Second Department found that the Family Court properly concluded that a prima facie case of sexual abuse was established against both the father and the paternal grandmother in one household, and the mother and the stepfather in a separate household because the three and a half year old child moved between the two households at the time she contracted a sexually transmitted disease. Once a prima facie case has been established, the respondents may rest without presenting any evidence and allow the court to decide the case on the strength of the petitioner's case alone, or the respondents may challenge the prima facie case by presenting evidence (1) that the child was not in the respondent's care at the time the injury occurred; (2) that the injury could reasonably have occurred accidentally; or (3) by countering the evidence of the child's injury or condition. Matter of Philip M., 82 NY2d at 245.
"Self-serving or contradictory denials or unreasonable explanations are insufficient to rebut a prima facie abuse claim." Matter of Benjamin L., 9 AD3d 153 (1st Dep't 2004). Furthermore, attempts of respondents to implicate each other or other individuals are not sufficient to rebut the prima facie case of abuse. See Matter of Matthew O., 103 AD3d 67 (1st [*24]Dep't 2012); Matter of Seamus K., 33 AD3d 1030 (3rd Dep't 2006). Furthermore, courts have found that the "credibility of the accident' explanation diminishes as the instances of similar alleged accidental' injury increase." See Matter of Vincent M., 193 AD2d 398 (1st Dep't 1993), quoting People v. Henson, 33 NY2d 63, 73 (1973); see also Matter of Briana R., 236 AD2d 830 (4th Dep't 1997) (Family Court erred in accepting the explanations proffered by respondents stating that the court considered each injury as an isolated condition and "ignored the pattern of repeated injuries coupled with the well-worn excuse that each injury was accidental").
In Matter of Maddesyn K., the Third Department noted: [w]e find that whereas a single incident might be plausibly explained as the unlikely result of a typical accident, the extent and number of [the child's] injuries render it far more probable than not that at least some of [the child's] injuries were not caused by the accidents described by respondents. 63 AD3d 1199, 1201 (3rd Dep't 2009).
A child does not have to actually sustain a serious injury to justify a finding of abuse as long as the evidence demonstrates that the respondents placed the child at substantial risk of serious injury. See Matter of Angelique H., 215 AD2d 318 (1st Dep't 1995) (hospital records established that the respondent's act of intentionally burning the child's hand created a substantial risk of serious injury); Matter of Nassau County Dept. of Social Servs. on Behalf of Joseph H., 191 AD2d 634 (2nd Dep't 1993) (evidence of child's multiple bruises sufficient to show that the child was subjected to a substantial risk of physical injury which would be likely to cause serious or protracted disfigurement of impairment). Furthermore, expert testimony is not required in order to determine that the injury sustained constitutes abuse under FCA §1012(e). Matter of Matthew O., supra, (finding that evidence fractures inflicted on infant and the pain she suffered as a result supports the Family Court's finding that the respondents abused the child under the statute; ACS's failure to present expert testimony that the infant's injuries are consistent with the statutory definition of abuse not fatal to establishing a prima facie case of abuse). There is also no requirement that the injury itself must last for weeks or months or years to constitute abuse. Matter of X.B., 816 N.Y.S.2d 702 (Monroe County Family Court 2006).
The court preliminarily notes that the respondent father, Angelo S. , is a person legally responsible for the care of the subject child Amanda in that he is married to the respondent mother, has lived with the mother for Amanda's entire life and by the respondent's own admission, he has primary caretaking responsibilities for Amanda. As such, the court finds that Mr. S. was the functional equivalent of a parent for Amanda. F.C.A. §1012(g); See Matter of Yolanda D., 88 NY2d 790 (1996).
The petitioner has established by a preponderance of the evidence that the subject child Maria sustained injuries that would ordinarily not occur absent an act or omission of the respondents. The medical testimony of Dr. Walker-Descartes, coupled with the undisputed fact that a forty four day old baby sustained a femur fracture, followed by a skull fracture two weeks later, considered together with unexplained bruising and a torn frenulum, clearly established the petitioner's prima facie case of abuse. A child of this age and developmental abilities does not normally sustain these injuries absent abuse and/or neglect. Additionally, the evidence [*25]establishes that Maria was clearly in pain as a result of the femur fracture. On October 9, 2012, at the hospital, her leg was swollen and tenderness was noted when Maria's knee was flexed on examination. According to the Maimonides medical records, pain "on touching" was noted on the neonatal infant pain scale. Treatment of Maria's fracture required a cast from hip to foot and multiple doses of acetaminophen for pain management. It is further noted in the medical records that at the time of Maria's third hospitalization on December 13, 2012, over two months later, her right leg was still wrapped in a soft cast.
Dr. Walker-Descartes, who was qualified on consent of all counsel as an expert in child abuse, credibly testified that she evaluated Maria's case over the span of several months. She was the treating physician for all three of Maria's hospitalizations at Maimonides Hospital. Dr. Walker-Descartes used a multi-disciplinary team approach in evaluating Maria's injuries. Starting with the mindset that child abuse is a potential diagnosis that has to be evaluated in addition to all other potential diagnosis, Dr. Walker-Descartes ruled out all other differentials before concluding that Maria's injuries were the result of abuse. Dr. Walker-Descartes performed thorough physical examinations of Maria with each presenting injury, and consulted with medical specialists in the field of pediatric radiology, ophthalmology, endocrinology, hematology/oncology, and genetics.
After several months of testing and evaluation, no underlying disease process could explain any of Maria's injuries. The results of the genetics testing established that Maria did not have osteogenesis imperfecta or any other genetic disorder that would cause her bones to break more easily. The results of the endocrinology consult revealed that Maria did not suffer from an underlying metabolic condition. The results of the hematology/oncology workup came back negative, and Maria was cleared of a bleeding or bruising disorder after spending six nights in the hospital to evaluate for such a disorder. Dr. Walker-Descartes rejected the mother's explanation that Maria could have inflicted the bruises to her face by herself in her sleep. Similarly, Dr. Walker-Descartes stated that it would be "impossible" for a child of Maria's developmental age to generate enough force from hand to mouth contact to cause a torn frenulum. Furthermore, at forty four days old, Maria was an immobile infant who could not roll over or do anything but wait for an adult to handle her. Neither parent has ever given an explanation for Maria's fractures. Dr. Walker-Descartes took a detailed history from both parents after the femur fracture and the skull fracture and they both denied Maria ever falling, being dropped, rolling off a bed, being left unattended, having her leg pulled or bumping her head. Dr. Walker-Descartes concluded that the femur fracture, the skull fracture, the bruising, and torn frenulum were inflicted injuries.
Additionally, with regards to the risk of serious or protracted impairment of Maria's physical or emotional health, although expert testimony was not required to constitute abuse under the statute, Dr. Walker-Descartes did testify that the risks associated with a skull fracture that does not heal properly could lead to developmental problems ranging from potential blindness to the inability to walk.
Furthermore, all the injuries occurred while Maria was in the care of both respondents. The mother was a homemaker and the medical records note that the mother takes care of the baby "24/7." The father worked full time but was home in the evenings and on his days off, and [*26]still had primary caretaking responsibility of both children in the home alongside the mother. According to Dr. Walker-Descartes, because there were no signs of healing, the femur fracture could have occurred anywhere from several hours up to forty eight hours prior to the injury being discovered on October 9, 2012. The skull fracture could only be dated as having occurred between October 10, 2012 and October 29, 2012. Both parents cared for the child during this time period. After Maria was discharged from the hospital on November 2, 2012, she was released home to both parents. The bruises on both sides of Maria's face, right thigh and left hip and the torn frenulum were all sustained while Maria was in the care of the parents.
Once the petitioner establishes its prima facie case, the burden of going forward then shifts to the respondents to provide a reasonable and acceptable explanation for these injuries. This they failed to do.
On summation, the respondent mother argues that the case should be dismissed because Maria was not in the exclusive care and control of the respondents at the time the injuries occurred. Both respondents argue that Maria's injuries were sustained by accidental or non-abusive means. Respondents also argue that the injuries are not serious and that their actions throughout the investigation and all of Maria's hospitalizations are inconsistent with abusive behavior.
The respondents proffered the testimony of child abuse expert Dr. Phyllis Weiner and radiologist Dr. Jack Levenbrown. Both Dr. Levenbrown and Dr. Weiner agreed with Dr. Walker-Descartes that Maria sustained an acute femur fracture at forty four days old. Similarly, both respondents experts agreed that approximately two weeks later, Maria sustained a skull fracture. Dr. Levenbrown testified that "unquestionably," the skull fracture that was present on the October 29th skeletal survey was not present on the October 10th skeletal survey, and that the skull fracture was sustained after the femur fracture. The petitioner's expert witness and the respondents' experts reached two opposing conclusions with regards to how Maria sustained the two fractures. Dr. Levenbrown and Dr. Weiner both opined that the femur fracture and the skull fracture, although they occurred on two separate dates, were both caused accidentally. Dr. Walker-Descartes concluded that Maria's fractures were caused by mishandling and most likely inflicted upon the child. While both Dr. Weiner and Dr. Levenbrown were qualified as experts in their respective fields, the court is not compelled to credit the expert's reliability as a matter of law, and the Family Court can reject an expert's testimony. See Matter of Christine F., 127 AD2d 990 (4th Dep't 1987); Matter of Anthony YY., 202 AD2d 740 (3rd Dep't 1994). Where competing medical experts present different or conflicting conclusions, the finder of fact is charged with assessing the credibility of the witnesses and the weight to be accorded to each expert. See Gray v. McParland, 255 AD2d 359 (2nd Dep't 1998); People v. Hamilton, 186 AD2d 581 (2nd Dep't 1992).
Notably, the petitioner's expert was the treating physician for all three of Maria's hospitalizations in 2012. Both respondents' experts were retained for the purposes of litigation and testified based on their review of the available records. See Matter of Ameillia RR., 112 AD3d 1083 (2nd Dep't 2013) (court found that the petitioner established a prima facie case of neglect by establishing that the child sustained bruises that were likely caused by non accidental means which occurred while the child was in the care of the respondents; the court noted that the [*27]physicians who petitioner called to testify were the doctors who examined the child for the treatment purposes as opposed to retained experts for the purposes of litigation).
Neither Dr. Levenbrown nor Dr. Weiner ever examined Maria. Dr. Weiner interviewed both the mother and the father, however Dr. Levenbrown did not. Dr. Levenbrown also testified that he did not speak to the treating physician Dr. Walker-Descartes in formulating his opinion, nor is it his regular practice to do so. Dr. Levenbrown did review some of the transcripts of Dr. Walker-Descartes' testimony, but he did not have the transcripts from all the dates of her extensive testimony.
The testimony of respondent's expert, Dr. Weiner, was deficient in numerous respects and must be rejected by this court. Furthermore, much of Dr. Weiner's testimony was contradicted by the petitioner's experts and even the respondents' other expert Dr. Levenbrown. Notably, on cross examination by ACS, Dr. Weiner was asked about her testimony in Matter of John W., 7 Misc 3d 1020(A) (Queens County Family Court 2004), a case involving allegations of Munchausen's by Proxy, where the court rejected Dr. Weiner's testimony and found that she acted as the respondent mother's advocate, not as an expert testifying on the mother's behalf. In John W., the court found that Dr. Weiner's testimony that just less than half of the infants 0-1 year that she treated in any given year for an ear infection were hospitalized for dehydration secondary to that ear infection was patently incredible. Similarly, this court finds Dr. Weiner's assertion that babies who have normal bone strength can sustain femur fractures through ordinary handling, such as being brushed up against someone while being held, or when the parent bends down with the baby in a baby carrier, as incredible and against the weight of the evidence. Dr. Weiner testified as if it was commonplace for fractures to happen to infants placed in a baby carrier such as a Baby Bjorn without their parents noticing. This assertion was contradicted by Dr. Walker-Descartes who testified that a child with healthy bones and healthy bone density could not sustain a femur fracture from the parent bending down with the child in a baby carrier. Dr. Walker-Descartes emphasized that parents bend down all the time with babies in carriers and babies do not break bones. Dr. Levenbrown also agreed with Dr. Walker-Descartes that the femur is the strongest bone in the body. The respondents also never presented this scenario to Dr. Walker-Descartes while she was taking a history from the parents and going through all plausible mechanisms for the baby's femur fracture.
Another area of testimony that detracted from Dr. Weiner's credibility was her testimony surrounding Maria's genetic evaluation. Dr. Weiner opined that based on her review of the genetics records, and her conversation with geneticist Dr. Jessica Davis, Maria "has a type of otseogenesis imperfecta" or brittle bone disease and has been diagnosed with a "definite osteogenesis imperfecta variant." Dr. Weiner's testimony proved to be internally inconsistent when on cross examination by the attorney for the children, Dr. Weiner conceded that Maria was not actually diagnosed with osteogenesis imperfecta and that the genetics report is not "as absolute as Dr. Davis is." As discussed below, Dr. Davis was anything but "absolute." Dr. Weiner further noted that the records indicate that Maria had blue sclera which she stated is a major finding in osteogenesis imperfecta. However, there are no medical records that establish that Maria has blue sclera. The Maimonides records indicate that Maria had a "bluish hue to sclera" and that Maria has blue eyes so the lack of contrast makes it difficult to discern. Blue [*28]sclera is also not noted in the genetics records of Dr. Davis.
In fact, Dr. Weiner's contention that Dr. Davis concluded that Maria had blue sclera and a "definite osteogenesis imperfecta" variant was undermined by Dr. Davis's own testimony on petitioner's rebuttal case. Dr. Davis's testimony was measured, objective and honest, and the court found her to be highly credible. She is a well respected board certified geneticist and a leader in her field, however she did not pretend to have all the answers to a field that is what she classified as a "moving target." Dr. Davis, who actually examined the child, testified that Maria did not have blue sclera.Dr. Davis was also very clear in her testimony that Maria has not been diagnosed with an osteogenesis imperfecta variant, and targeted genetic testing shows that she has a "variant of unknown significance." Dr. Davis explained that this is a variant that has never been reported or seen before and that she simply does not know what this means and whether it played a causative role in Maria's injuries. The fact that the respondent father has the same variant of unknown significance does not make it any less a "mystery." She further stated that Maria would need to be followed over time to determine if the variant played any role in Maria's injuries.
Dr. Davis' testimony contradicted that of Dr. Weiner, and Dr. Davis denied ever stating to Dr. Weiner that Maria has an osteogenesis imperfecta variant. Dr. Weiner either misunderstood or misrepresented her conversations with Dr. Davis. Furthermore, Dr. Weiner's conclusion that Maria's urine test results are a marker for osteogenesis imperfecta is merely speculative. Dr. Davis makes no reference to a urine test in her testimony. Dr. Weiner has very limited experience with osteogenesis imperfecta, having only ever encountered two alleged instances of children with this disease, who she referred out to Dr. Davis, who she regards as the best physician in the city on osteogenesis imperfecta.
Dr. Weiner consistently minimized all of Maria's injuries throughout her testimony. She referred to the skull fracture as a "faint hairline crack," and as a "very minor fracture" that was "short and tiny." Dr. Levenbrown disagreed with this classification of the skull fracture stating that if the pieces of the bone were more separated than what you would find in a hairline crack. Dr. Weiner also classified Maria's bruises as "minor." Even though Dr. Weiner never examined Maria, she insisted that Maria did not have a torn frenulum stating that the records only noted that Maria had "decreased tension" and "transient bleeding in the area." She again classified this as a "slight injury." Dr. Weiner's testimony that there was no frenulum tear is directly contradicted by both the Maimonides records and Dr. Walker-Descartes' testimony. The Maimonides records, which Dr. Weiner claims to have reviewed, state clearly that "the labial frenulum is torn with pinpoint petechial and a bruise to the lip."With regards to the femur fracture, Dr. Weiner opined that a minimal force caused the femur fracture because Maria presented with minimal swelling and no bruises. This testimony was contradicted by the testimony of Dr. Levenbrown who stated that in assessing the presence or absence of bruising as it relates to fractures, you can have a fracture with bruising, a fracture without bruising, or bruising without a fracture, and that you cannot tell whether an injury has been inflicted on a child by the presence or absence of bruising or swelling.
Dr. Weiner's conclusion that Maria had "easy bruisability" consistent with osteogenesis imperfecta is also unsupported by the evidence. Furthermore, to illustrate her speculative theory [*29]of "easy bruisability" Dr. Weiner stated that Dr. Walker-Descartes noted bruising that was caused by a beaded headband Maria was wearing, however Dr. Walker-Descartes testified that she saw three small red marks from the headband; she did not say they were bruises. Dr. Weiner noted that during Maria's December hospitalization, new bruises were discovered on Maria, however this is directly contradicted by Dr. Walker-Descartes who definitively testified that she did full body checks on Maria every single day that she was in the hospital and Maria did not develop new bruises. Dr. Walker-Descartes explained that Maria had bruising at IV and blood drawing sites, but she is excluding those bruises from her examination of bruises indicative of abuse or a bruising disorder. The court wholly credits the testimony of Dr. Walker-Descartes concerning the bruising and the torn frenulum as she was the physician who personally examined the child and observed the injuries.
Additionally, the court rejects Dr. Weiner's testimony that even absent osteogenesis imperfecta, her opinion would still be that Maria sustained the injuries accidentally. In addressing the force required for Maria to sustain a femur fracture, the court found Dr. Weiner's testimony regarding the "exersaucer fractures" caused by a child's own twisting motion, to be non responsive and completely irrelevant to the instant case as Maria was a non ambulatory forty four day old infant at the time she sustained the femur fracture.
Respondent father argues on summation that the testimony of Dr. Walker-Descartes should be disregarded and, citing to Matter of Julia BB., 42 AD3d 226 (3rd Dep't 2007), infers that the petitioner's expert transitioned "from the role of advocate" and has "engaged in a crusade to deprive respondents of their children." The court finds that this contention lacks merit and is not supported by the record. Notably, the petitioner's expert in Matter of Julia BB., was described as having "personal animus" towards the parents, referred to the foster parents as the "adoptive parents" and actively sought to have the parents prosecuted criminally for child abuse, and authored letters to the District Attorney's office. Id. at 222. That is not the case here with Dr. Walker-Descartes. The court found the testimony of Dr. Walker-Descartes to be highly credible and objective. Her testimony was fair and unbiased. The doctor acknowledged that the respondents were always appropriate with the baby in the hospital, that there was always a parent by Maria's bedside during her three inpatient hospitalizations, and the mother took the child to every doctor's appointment and cooperated with every follow up recommendation. Dr. Walker-Descartes also testified that just because she is a child abuse specialist, that does not mean she operates from the mindset that it is child abuse until proven otherwise. Dr. Walker-Descartes evaluates all potential diagnoses as she did in Maria's case. Dr. Walker-Descartes carefully evaluated Maria's case over the course of several months and did not make recommendations that Maria be removed from her parents' care while the evaluation was ongoing because the evaluation was not yet complete and the respondents agreed to weekly out-patient monitoring by Dr. Walker-Descartes as well as close supervision by ACS and preventive services.
The court is ultimately unpersuaded by Dr. Levenbrown's conclusion that Maria's injuries were accidental, and that she was not abused. While the court found Dr. Levenbrown to be an honest and objective witness, he has never examined the child Maria, and has never met the parents. He based his opinion solely on the femur fracture and the skull fracture, and did not consider Maria's unexplained bruises and torn frenulum in the analysis as to whether the injuries [*30]were abusive or accidental in nature. Therefore, the court finds that the ultimate assessment of Dr. Levenbrown is flawed and incomplete. Dr. Levenbrown deferred to Dr. Weiner with regards to the torn frenulum as he did not have much experience with this type of injury and he did not remember all the bruises discovered on Maria's body. While Dr. Levenbrown recalled the bruise on Maria's face, he could not recall the bruises on Maria's thigh and hip. While Dr. Levenbrown stated that he considers all the injuries separately and together in assessing whether a child has been abused, he did not see any of the photographs of the bruises or of Maria's frenulum so he did not know "where to put" those injuries in his final conclusion. Furthermore, while he concluded that Maria's fractures were not abusive fractures, he also opined that it could have been from a fall or from direct trauma, stating that "we don't know what happened exactly." Dr. Levenbrown also emphasized that any fracture that occurs can be abuse, or be an accident, and that a transverse, non displaced fracture, like Maria sustained, can happen from a child falling from a height or it can happen from extreme willful abuse. Moreover, while Dr. Levenbrown opined that Dr. Weiner's theory of Maria's leg being entrapped in a strap was a reasonable theory, Dr. Levenbrown stated that his review of the medical records did not reveal any accidents, or falls, or history that would provide an explanation for Maria's fractures.
Finally the court notes that Dr. Levenbrown's analogy of Maria's skull fracture to the Fed Ex delivery of a laptop computer is a curious one as it appears to support the petitioner's theory of the case. Regardless of whether you have an internal injury with no sign of external injury or external injury without internal injury, which Dr. Levenbrown states was the case with Maria, the fact still remains that someone perpetrated the injury on the child. Furthermore, just because a fracture fortuitously heals and does not affect the child's future functioning, does not make it any less abusive. In Matter of X.B., 11 Misc 3d 1074(A) (Family Court Monroe County 2006), the court stated the following: The caselaw repeatedly holds that when a responsible person deliberately inflicts an injury on a child, it meets the statutory definition of abuse even if the injury itself is not obviously serious and does not last for weeks or months or years (i.e., may not seem "protracted" in the common meaning of the word). The intentional nature of the injury-producing actions is more important than the fact that a person luckily did not actually do worse damage.
Respondent mother's argument on summation that Maria could have been injured by the maternal grandmother or other people caring for the child at her mother's house is unavailing. Attempts of respondents to implicate each other or other individuals are not sufficient to rebut the prima facie case of abuse. See Matter of Brayden UU., 2014 NY Slip Op 02476 (2nd Dep't 2014); Matter of Matthew O., supra; Matter of Seamus K, supra. In Matter of Brayden UU., the Second Department recently upheld the Family Court's finding of abuse in a case involving a five month old immobile infant who sustained a skull fracture and intracranial bleeding. The court found that the medical testimony established that the damage to the child's skull and brain was caused by significant force and could not have been accidentally caused in the manner suggested by the respondents. The court rejected the respondents' argument that other people who also cared for the child could have caused the injuries. [*31]
In Brayden UU., although both respondents' parents provided occasional care for the child during the weeks before the target child's injuries, the Family Court credited their testimony that they did nothing to harm the child, and did not know how the injuries occurred. The Family Court further credited the maternal grandmother's testimony that a relative who was often present in the home when the children were there, had been violent towards his own young child, but never harmed the target child. The Family Court had eliminated this relative from consideration as well as the respondents' parents. The Second Department concluded that based on the testimony and the medical evidence which established that the child had been injured on more than one occasion, the respondents had failed to rebut the petitioner's prima facie case.
In the instant case, neither respondent submitted evidence to establish that the injuries were sustained at a time where respondents were not caring for the child. Matter of Matthew O., supra; Matter of Seamus K., supra. The respondents' own expert witness, Dr. Levenbrown, stated that the femur fracture could have occurred up to five to seven days earlier, when Maria was in the care of both respondents, not the grandmother. Even if the femur fracture occurred while Maria was at the maternal grandmother's house, both the mother and father spent a significant portion of the days at the maternal grandmother's home with the children. The father testified that on both nights that Maria spent at his mother-in-law's home, he was also in the house until midnight.
While proof that a child is not in the parent's care at the time the injury occurred is one way to rebut the prima facie case, the respondents' attempts to suggest that other caretakers could have caused these injuries to Maria simply falls short. See Matter of Seamus K., 33 A.D. at 1034. Furthermore, it is not possible for the court to discern which parent is actually responsible for the child's injuries since neither parent admits to any wrongdoing. Id. at 1033. At the trial, the respondents did not accuse the maternal grandmother or any other particular individual of causing the injuries. In fact, the opposite was true. Both the respondent mother and respondent father testified that they had no reason to believe that the maternal grandmother would injure Maria, and they continued to use the grandmother as a babysitter for Amanda and Maria after Maria was diagnosed with the femur fracture and the skull fracture. During Maria's week long hospital stay in December 2012 for the hemotology/oncology work up, Amanda was in the care of the maternal grandmother so that both parents could be available for Maria in the hospital. The respondents did not present any expert medical proof to pinpoint the timing of Maria's injury to a time period when neither of them was with the child. Matter of Seamus K., 33 AD3d at 1034.
A survey of many "res ipsa" cases where the respondents were successfully able to rebut the prima facie case of abuse reveals that parents themselves had an actual explanation for the injuries. For example, in Matter of Amir L., 104 AD3d 505 (1st Dep't 2013), the First Department upheld the Family Court's dismissal of the abuse allegations involving a five month old child who sustained a femur fracture. In that case, the court found that respondents satisfied their burden of going forward with a reasonable explanation in that when the father went to dispose of a soiled diaper, the child for the first time in his life, rolled over and fell off the respondents' couch. In Matter of Amir L., respondents' experts testified that this accident most likely caused him to sustain a hairline fracture of the femur that progressed to an oblique fracture. Furthermore, [*32]the court was persuaded that the testimony of the petitioner's expert in Amir L. was undercut by a 2000 article in the Journal of Pediatric Orthopaedics, "Femur Shaft Fractures in Toddlers," which documented two cases of six-month-old infants who reportedly fractured their femurs by falling from a bed and a sofa, respectively and further specifically calculated a 62% probability that abuse was not a factor in the fractures suffered by those infants studied.
Similarly, in Matter of Brandon P., 278 AD2d 533 (3rd Dep't 2000), the Third Department upheld the Family Court's dismissal of the abuse allegations involving a child who suffered a spiral fracture of his right tibia while under the care of the respondent father. The respondent father testified that he left the child unattended to go to the kitchen, and heard him fall from the couch, and then heard a snap or popping sound, rushed to the child, and called out to his mother for assistance. The court found that the respondent's explanation of the incident was consistent with an accident.
In Matter of Anthony D.C. Jr., 173 AD2d 623 (2nd Dep't 1991), the respondent parents testified that the five and a half month old baby's arm fracture was the result of an incident where the child fell out of the father's arms when he tripped going up the stairs. The child also had healing rib fractures that the parents attributed to physical therapy. Respondents' expert witness testified that the arm fracture and the rib fractures could have occurred in the manner described by the parents.
In Matter of Eric G., 99 AD2d 835 (2nd Dep't 1984), the petitioner's medical expert testified that the baby's femur fracture could have occurred when one of the parents removed the baby from the crib while his leg was caught between the crib's railings. In that case, the Family Court finding of abuse was reversed and the proceeding was dismissed.
In Matter of Alanie H., Jr., 69 AD3d 722 (2nd Dep't 2010), the petitioner established a prima facie case of abuse against the parents by introducing evidence demonstrating that the subject child was under their care when he suffered head trauma, injuries that would ordinarily not happen except for an act or omission of the respondent parents. In response, the parents provided a satisfactory medical explanation for the child's injuries which rebutted the allegations of abuse. The parents adduced evidence, which included testimony from an expert in child abuse and a pediatric neurosurgeon, that the injuries sustained by the subject child were caused, not by head trauma, but by a form of meningitis and the treatment he received for the disease.
These cases are all distinguishable from the instant case because the respondents had a reasonable explanation that the injuries occurred accidentally or because of a diagnosed medical condition. In the instant case, the respondents still maintain to this date that they have no idea how Maria sustained these injuries. No explanation has been provided for any of Maria's injuries, except for the mother's statements that Maria caused the bruises to her face because she hits her face when she sleeps. Dr. Walker-Descartes stated that this was not plausible given the child's age.
In addition to the respondents' lack of reasonable explanation for any of the injuries, the court found both respondents' testimony troubling in several respects. First, the respondent mother and respondent father's testimony was inconsistent when it came to the dates in which Maria slept over her grandmother's house in the days leading up to the femur fracture. The [*33]respondent mother testified that Maria and Amanda stayed over at her mother's on October 7th and October 8th, but the father testified that the girls stayed over on October 6th and 7th. Furthermore, the ACS caseworker, Nadia McLeod, testified that the respondent mother told her that the children spent only the evening of October 7th at her mother's home and that her mother wanted to give her a night off. Second, the respondent father testified that at forty four days old, Maria was rolling from stomach to back and back to stomach and using a "walker." This is simply not credible given Dr. Walker-Descartes' testimony that a child of that age cannot roll or do anything except wait for an adult to handle them. The court also does not see how or why a non-mobile forty four day old infant would be placed in a "walker." On direct examination, the father became confused about the three hospitalizations and had difficulty remembering which hospitalization was for which injury. Because of these inconsistencies, the court does not find that the respondent father was a reliable witness. Furthermore, although both respondents deny culpability, neither respondent has established that Maria was not in his or her care at the time of all the injuries. As a result, the court is not able to exclude either respondent as a perpetrator of the abuse. Both respondents' self-serving denials are not sufficient to rebut the petitioner's prima facie case of abuse given the medical proof in this case.
VI. DERIVATIVE FINDING AS TO AMANDA
F.C.A. §1046(a)(I) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of...the respondent." The Second Department has stated that the focus of the inquiry in cases of derivative abuse or neglect "is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood." Matter of Dutchess County Dept. of Social Servs. on Behalf of Douglas E., 191 AD2d 694 (2nd Dep't 1993). Proof of injury to the sibling of the directly abused child is not necessary to sustain a derivative finding. See e.g., Matter of Anthony S., 280 AD2d 302 (1st Dep't 2001); Matter of Quincy Y., 276 AD2d 419 (1st Dep't 2000). The court notes that Amanda was a vulnerable seventeen month old infant at the time of the filing of the petition. Based on the evidence that the infant Maria sustained fractures, bruises, and a torn frenulum that were inflicted and non accidental, and the respondents were responsible for the injuries sustained, the court finds that the respondents have such a fundamental defect in their understanding of parenting duties that it creates a substantial risk of harm to any other child in their care. Accordingly a derivative finding of abuse is warranted as to the child Amanda.
VII. THE F.C.A. §1028 DETERMINATION
While the issue for the court at fact finding is whether the petitioner has proven that the children are abused by a preponderance of the evidence, the issue at the §1028 hearing is whether returning the children to the parents "presents an imminent risk to the child[ren]'s life or health." F.C.A. §1028. The statute states that the application for return of a child "shall" be granted unless such imminent risk is found. Furthermore in determining whether there is imminent risk of harm to a child, the court must balance the risk of harm from being in the parent's care against the risk of harm that their removal or continued removal might bring. See Nicholson v. Scopetta, 3 NY3d 357 (2004); See also Matter Alexa A.E., 2013 WL 518421 (2nd Dep't 2013); Matter of DeAndre S., 92 AD3d 888 (2nd Dep't 2012). The court must also determine whether there are [*34]orders that can be put in place that will eliminate the imminent risk of harm. Nicholson, 3 NY3d at 378; Matter of David Edward D., 35 AD3d 856 (2nd Dep't 2006). A court must engage in a fact-intensive inquiry to determine whether the child's physical or emotional health is at risk. Nicholson at 380. Furthermore, "[t]he term safer course' (citations omitted) should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption." Id. at 380.
Furthermore, it is not uncommon for children who are the subject of an abuse proceeding premised on the theory of res ipsa loquitor, to be released to the care of the parents even where an abuse finding is ultimately entered. In the seminal Court of Appeals case of Matter of Philip M., supra, the court found that the petitioner had established aprima faciecase of abuse in that three of the subject children had contracted a sexually transmitted disease while under the respondents' care and the respondents' explanation failed to rebut the prima facie case. The court noted that all the subject children were released to the respondents' care under Department of Social Services supervision for twelve months, during which time the parents were to seek counseling with their children. More recently, in Matter of Radames S., 112 AD3d 433 (1st Dep't 2013), the First Department upheld the Family Court's finding that the respondent mother abused her eight month old non-ambulatory daughter, including the undisputed fact that the child sustained three separate injuries, including two skull fractures and a fracture of the humerus. The Order of Disposition, also unanimously affirmed by the Appellate Division, was an order releasing the children to the respondent's care with twelve months ACS supervision.
Similarly, in Matter of Matthew O., supra, the First Department also affirmed the Family Court's finding of abuse against the mother, father, and babysitter in a case where a five month old child sustained seven fractures of her arms, legs and skull. In a footnote, the First Department noted that the target child and her youngest sister was initially remanded to ACS. Eight months later, the target infant's youngest sister was returned to her parents. Less than three months later, the target infant was released to the parents with specific conditions. It was additionally noted that supervision over the family ended approximately two years prior to the final Order of Disposition.
Matter of Aniyah F., 13 AD3d 529 (2nd Dep't 2004), involved a five month old diagnosed with a left subdural hematoma, a scalp hematoma, a circular scar on her forehead, two healed arm fractures, and a lip abrasion. Family Court dismissed the abuse allegations and made a finding of neglect against the respondent mother. The disposition was release of the child to the mother under twelve months ACS supervision, and the mother was directed to make provisions for appropriate child care for the children with ACS assistance. The Second Department reversed the Family Court's determination insofar as it dismissed the abuse allegations. The court found that the petitioner met its burden of proof in establishing a prima faciecase of abuse under F.C.A. §1046(a)(ii) and the respondents failed to provide a satisfactory explanation for the injuries. The court noted that ACS stated that no new or further disposition was requested or required and the appellate court similarly found that no new or further disposition was appropriate under the circumstances of the case. Therefore, the Second Department chose not to remit the case back to Family Court for a further dispositional hearing.Furthermore, Matter of T.A., 950 N.Y.S.2d 611 (Family Court New York County 2012), involved a finding of abuse against both parents based on the three month old child suffering from a fractured humerus [*35]and four broken ribs. In that case, although the twin subject children were initially removed from the parents and placed in the care of the paternal grandparents, prior to the court rendering its decision on fact finding, the court permitted the children to reside with their parents with an order of protection requiring that neither parent be with either child in the absence of the grandparents or a newly-hired nanny who stayed in the parents' home twenty four hours per day.
In applying these principles to the case at hand, the court finds that the agency has failed to establish that the subject children are currently at imminent risk, and as such, the F.C.A. §1028 application of the parents shall be granted and the children shall be returned to the respondents pending a final order of disposition.
In assessing whether the subject children are currently at imminent risk, the court has considered voluminous testimony and documentary evidence. All the evidence admitted for the purposes of the fact finding hearing was also admitted for the purposes of the §1028 hearing. Furthermore, evidence of the respondents' participation in services after the filing of the Article 10 petition can be considered as part of the imminent risk determination.
The court first notes that the children are currently in a non kinship stranger foster home. The children were initially placed in the kinship home of the maternal great uncle and aunt however, in December 2013, following the former foster parents' 10 day notice that they couldno longer care for the children, the children had to be moved from this home.
The ACS caseworker, Ms. McLeod testified that during her investigation, she kept in regular contact with the children's pediatrician Dr. Darevskaya, who stated that both the children's medicals and immunizations were up to date. Dr. Darevskaya reported that she saw the children regularly for well child visits and for sick visits, and that there were no safety concerns. Notably, Ms. McLeod also testified that following both Maria's femur fracture and skull fracture, the hospital released Maria to the care of the parents and ACS continued to monitor the family through weekly home visits. She stated that ACS did not have any reason to believe that Maria could not be returned home safely with supervision in place. In fact, because there was no conclusion from the hospital that the femur fracture was a result of abuse, ACS unfounded the October 9th investigation. When Maria was hospitalized in December to rule out a bleeding disorder, either the mother or father stayed at the hospital with Maria continuously. On December 19, 2012, Ms. McLeod spoke to Dr. Walker-Descartes and social worker Tanya Weeks, who both recommended that Maria be discharged back to the mother and father with services in place. Ms. McLeod also made a referral for preventive services, which included parenting skills training and a mental health evaluation. These services commenced in the end of January 2013.
Ms. McLeod further testified that between Maria's discharge from the first hospitalization on October 12, 2012, up through February 6, 2013, she continued to supervise the home and make collateral contacts with Dr. Walker-Descartes, the regular pediatrician, NYPD Special Victims Unit detectives, and the preventive caseworker, to determine if further child protective action needed to be taken. Ms. McLeod learned that the respondent mother followed up with all necessary medical appointments for Maria and she did not learn anything from her collateral [*36]contacts that would cause her to seek a change of status with respect to the children or to seek court intervention. ACS also reviewed the case with an in house mental health consultant, Maria Gregorio, to rule out the possibility of Munchausen by Proxy Syndrome, a condition where the parent intentionally makes the child ill, and the consultant stated that the case did not meet the criteria for Munchausen.
Ms. McLeod noted that as the sixty day investigation of the December 2012 report was drawing to a close, she made a visit to the home on February 5, 2013 and did not see any immediate safety concerns warranting a removal of the children. Ms. McLeod also spoke to Dr. Darevskaya on February 6, 2013 who reported no concerns. Ms. McLeod stated that the ACS Child Protective Manager (CPM) instructed her to consult with "Dr. Ajl," who reported that Maria was abused until proven otherwise. Ms. McLeod noted that Dr. Ajl did not review the entire ACS case record or the complete Maimonides Hospital records prior to making this conclusion. As a result of Dr. Ajl's [FN9] determination that Maria was abused, ACS decided to remove the children on February 7, 2013 and subsequently filed the instant Article 10 petition.
The foster care agency caseworker, Ms. Coleman testified that while the children were in the former foster home of the maternal great-aunt and uncle, the mother was there for up to eight hours a day and involved in taking care of the children, including feeding, bathing and putting the children to sleep. Ms. Coleman observed only positive interactions between the mother and the children and received reports of positive interaction. Furthermore, the respondent mother attended the children's medical appointments with the former foster parents. Ms. Coleman testified that she has had more interaction with the respondent mother because the respondent father works full time Monday through Friday and sometimes works overtime. The respondent mother and the respondent father completed parenting skills training at American Family Community Services in Queens. Furthermore, the respondents both attended the twenty-day planning conference on the case and agreed to participate in any recommended services. Ms. Coleman further stated that she makes monthly visits to the respondents' home and has observed their home to be a safe environment for the children with no safety concerns. She also stated that both respondents have been very compliant with agency supervision and the ACS service plan. With respect to visitation, as of July 2013, Ms. Coleman stated that the agency had permitted the maternal grandmother to supervise an Easter visit, however the agency was not in support of expanding to unsupervised visits because the parents had not provided an explanation for the children's injuries. The court also authorized a 4th of July visit to be supervised by the paternal aunt, Rosana S. . Both parents continued to have visits supervised by the agency or an agency approved relative throughout the rest of the 2013 year.
In addition to Ms. Coleman's testimony, the documentary evidence further speaks to the respondents' compliance with the service plan and the agency. Petitioner's Exhibit 4, an October 28, 2013 report from Suaida Sinclair, LMSW, the mother's therapist at Neighborhood Counseling Center, states that the respondent mother is scheduled for therapy sessions once per week and has shown compliance with her schedule and is never late for her sessions. The report further notes that Ms. S. is not on any psychiatric medications at this time and presents as [*37]"forthcoming and talkative in her therapy." Petitioner's Exhibit 10, a February 17, 2014 letter from Ms. Sinclair, states that the mother has been complying with therapy for the last six months and that she is amenable to ongoing counseling sessions and continues to demonstrate motivation in ameliorating stress.
Pursuant to this court's order dated November 21, 2013 for the respondent mother's therapist to observe the parents together with the subject children in a therapeutic setting, Ms. Sinclair held a collateral session between the mother and the children on February 8, 2014. Ms. Sinclair noted that the respondent mother was attentive to the children's safety during the visit as she was careful to guard them against the table and chairs in the room while they were playing. Ms. Sinclair further reported that she showed affection towards the girls and engaged the children with drawing, toys and games.
A letter dated March 10, 2013 and Certificate of Completion, from Rodolfo Flores, MSW, executive director of the American Family Community Services, Inc., establishes that the respondent father completed the fourteen lesson parenting skills program as requested by ACS. See Respondent Father's Exhibit C. Mr. Flores noted that the respondent father came on time to his scheduled appointments, participated in class, took notes, and at times discussed issues relating to his case. Mr. Flores further commented that Mr. S. has enhanced his abilities to be a better parent and husband. A December 27, 2013 letter from The Center for Psychotherapy and Counseling authored by the father's therapist, Patricia Hunter-Bunyan, M.A., similarly states that the respondent father has been compliant and prompt in attending his weekly counseling sessions. See Respondent Father's Exhibit B. Ms. Hunter-Bunyan additionally noted that Mr. S. "consistently presents himself as a caring, capable and responsible parent who recognizes and understands the developmental, social and emotional needs of his children." She further reported that during a session, Mr. S. reported that the information that he learned from the parenting skills class "will be beneficial in his being a better parent when his children are returned to his care." A January 23, 2014 letter from Ms. Hunter-Bunyan described the father as "receptive, absorbed and enthusiastic." See Respondent Father's Exhibit D.
Furthermore, in September 2013, both respondents cooperated with an imminent risk mental health assessment ordered by the court. See Court's Exhibit #1. Dr. Christopher Mongeau, Clinic Director of the Kings County Family Court Mental Health Clinic concluded that neither the respondent mother nor respondent father "exhibit signs nor symptoms of a significant psychiatric condition or significant mood disorder at this time." Dr. Mongeau further noted that the respondents are willing to engage in therapeutic and other supportive services. Finally, Dr. Mongeau stated that neither parent has "any significant psychiatric histories or current symptoms that may create an additional situation of imminent risk to the children if in their care."
Furthermore, the court takes judicial notice of all orders regarding visitation that have been made on this case. On January 22, 2014, after full inquiry of the agency caseworker Ms. Coleman, the court granted the respondents' request for unsupervised contact with the children on consent of the attorney for the children. The order permitted "sandwiched" visits, beginning and ending at the foster care agency. The order required the first and last thirty minutes to be supervised by an agency caseworker and allowed for the respondents to have two hours of unsupervised visitation in the community. The order further provided that the agency caseworker [*38]must carefully observe the children before and after each visit, and the agency must have a working phone number for the parents during the visit. Finally, any home that the children were to be taken during the course of the visit was required to be cleared by the agency. See Decision and Order on Visitation dated January 22, 2014.
On February 5, 2014, upon receiving information from Ms. Coleman that the unsupervised visits were going well, and that there were no safety concerns reported, the court modified the January 22nd order to allow for three hours of unsupervised contact for the respondents. See Order dated February 5, 2014. On February 14, 2014, upon receiving information from Ms. Coleman that the visits continued to go well with no concerns noted, the court further modified the visitation order to the extent that the respondents were permitted unsupervised visits in the community twice per week for a total of six hours per week. The court order still required the first and last thirty minutes of the visit to be supervised by the caseworker. See Order dated February 14, 2014. On February 28, 2014, the court was informed that despite the court's order stating that the agency caseworker must supervise the first and last thirty minutes of the visit, the agency took it upon themselves to have the foster parent supervise the first thirty minutes of the last four visits since the last court date. The attorney for the children and counsel for ACS both stated that they had no issue with this continuing since the foster parent was an appropriate supervisor and had already been regularly supervising the mother's contact since the children were placed with the foster parent. On consent of all parties, the visitation order was further modified to the extent that on Tuesdays, the respondents were granted up to four hours of unsupervised visitation, with the first and last thirty minutes of the visit being supervised by a caseworker. On Thursdays, the respondents were granted up to four hours of unsupervised visitation, pick up and drop off at the foster home. The foster parent was required to report back to the agency on how the children appeared before and after each visit. Furthermore, the order allowed unsupervised visitation on the weekend, Saturday or Sunday, depending on the respondent father's work schedule, for up to six hours, with pick up and drop off at the foster home and with the condition that the foster parent was required to report back to the agency on how the children appear before and after each visit. A total of fourteen hours of unsupervised contact was permitted pursuant to the February 28, 2014 order.
On or about March 31, 2014, counsel for the respondent mother filed a motion seeking overnight visits, and additional visits during the Easter holiday from Good Friday through Easter Sunday. The motion was returnable on April 9, 2014. Counsel for ACS submitted an affirmation opposing overnight visits arguing that overnight visits would be premature since the matter is pending decision after trial on the fact finding and the §1028. Counsel for ACS represented that the agency caseworker, Ms. Coleman, reported that there were no safety concerns expressed by the foster parents since the court expanded unsupervised visitation to up to fourteen hours on February 28, 2014. Furthermore, it was reported that Ms. Coleman was supervising the beginning and end of the Tuesday visits and no concerns were reported. The attorney for the children stated on the record that based on her conversations with the foster parent, she was consenting to one overnight visit per week. In light of the attorney for the children's consent and given the circumstances of this case, including the fact that the respondents have cooperated with all services, and the fact that the court has been gradually expanding the unsupervised contact for the respondents over the last several months since [*39]January 22, 2014 without incident, the court granted the respondent mother's motion to the extent that the respondent mother was permitted one overnight visit per week. The court further ordered ACS and/or the foster care agency to do random home visits during the course of the overnight visits. The court further gave the agency discretion to expand the unsupervised day visits on notice and consent of the attorney for the children. See Order on Motion #2 dated April 9, 2014.
The subject children have been in foster care for over fourteen months. Maria, who was removed at approximately five and a half months old, has spent more of her life in foster care than she has in the care of her parents. The respondents have done everything that the agency has asked them to do and they have cooperated with every single court order. Their unsupervised visitation with the children has gone without incident or concern for over three months now. The court fails to see the imminent risk under the present circumstances. The harm of continued removal outweighs the risk of harm posed by a release to the parents under ACS supervision. Furthermore, the court finds that any risk to the children could be ameliorated with continued supervision and a limited Temporary Order of Protection prohibiting the parents from using any corporal punishment on the children.
VIII. CONCLUSION
Based on all the evidence presented, the court finds that the petitioner has established by a preponderance of the evidence that the respondent mother and respondent father abused the subject child Maria as defined under §1012 of the Family Court Act. As a result of the abuse of Maria, the subject child Amanda is abused or is in imminent danger of being abused. As such a derivative finding of abuse is entered.
Furthermore, the respondents' F.C.A. §1028 application is granted and the children are released to the respondents' care under the following terms and conditions:
(1) The respondents are to cooperate with weekly ACS supervision, including announced and unannounced visits;
(2) The respondents are to cooperate with preventive services;
(3) The respondents are to cooperate with a limited Temporary Order of Protection prohibiting the use of any corporal punishment on the children; and
(4) The respondents are to ensure that both children attend all necessary medical appointments.
DATED: April 29, 2014
__________________________________
Hon. Lillian Wan
Footnotes
Footnote 1:The photographs admitted into evidence depict yellowish bluish bruises that Dr. Walker-Descartes measured to range between .25 centimeters and 2 centimeters at their widest areas.
Footnote 2:It was noted that the mother's sister has Krabbe'e Disease, which is an enzyme disorder that is not linked to bone disorders or bleeding and bruising disorders. Dr. Walker-Descartes testified that there was no clinical indication to test Maria for this disorder. The doctor further testified that even if Maria did have Krabbe's disease, the child's injuries, including a femur fracture, a skull fracture, bruising to the face and thighs and the torn frenulum, could not be attributed to this disease.
Footnote 3: The medical records curiously document that Maria's x-rays revealed fractures to the distal femur and proximal tibia and fibula however there is no mention of a tibia and fibula fracture in the testimony of any of the four expert witnesses.
Footnote 4:The records reflect, as did Dr. Walker Descartes' testimony, that Maria had bruises on the left dorsum of the foot and also on the dorsal side of the left hand, which were the result of procedures that were performed in the hospital.
Footnote 5:Petitioner's Exhibit 6 is a color photograph depicting a bruise to the lip and a torn frenulum however it is not a clear photograph.
Footnote 6:Dr. Levenbrown's curriculum vitae was received in evidence as respondent mother's Exhibit B.
Footnote 7:Dr. Levenbrown stated that he believed that Dr. Walker-Descartes testified on three dates, however Dr. Walker-Descartes testified over the course of seven dates.
Footnote 8:Dr. Davis' curriculum vitae was received into evidence as Petitioner's 8 for the purposes of fact finding and 1028.
Footnote 9:The court notes that Dr. Ajl was not called as a witness at trial.
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