Matter of Legend G. (Alba S.)

[*1] Matter of Legend G. (Alba S.) 2015 NY Slip Op 50984(U) Decided on June 29, 2015 Family Court, Kings County Pitchal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2015
Family Court, Kings County

In the Matter of Legend G., Jr., A Child under Eighteen Years of Age Alleged to be Neglected by

against

Alba S. Legend G., Sr., Respondents.



NN-xxx/15



Alan Sputz, Esq.

Special Assistant Corporation Counsel

Administration for Children's Services

Family Court Legal Services

330 Jay St., 12th Floor

Brooklyn, NY 11201

By: Bradley Smith, Esq.

Sherry Narodick, Esq.

111 W. 90th St.

New York, NY 10024

Counsel for Alba S.

Kathryn Lissy, Esq.

Brooklyn Defender Services

Family Defense Practice

177 Livingston St., Suite 700

Brooklyn, NY 11201

Counsel for Legend G., Sr.

Stephanie Shapiro Marden, Esq.

Legal Aid Society, Juvenile Rights Practice

111 Livingston St., 8th Floor

Brooklyn, NY 11201

Attorney for the Child
Erik S. Pitchal, J.

Introduction

In this proceeding pursuant to Article 10 of the Family Court Act, the petitioner ACS alleges by petition dated May 28, 2015, that the respondent-parents Alba S. and Legend G., Sr., neglected their 12-month-old child Legend G., Jr., by providing inadequate guardianship. The gravamen of the petition is that the baby fell in the park and sustained an injury to his face, and the parents unreasonably failed to obtain medical care. Petitioner conducted an emergency removal of the child on or about May 27, and the court (Gruebel, J.) remanded him to temporary ACS custody at an ex parte hearing under Family Court Act § 1027 on May 28.

The parents appeared in court on June 2 and were assigned counsel, and issue was joined. The respondents requested the return of the child and the matter was referred to the undersigned, sitting in the emergency hearing part, for a hearing to commence on June 4.

At the June 4 appearance, Mr. G. asserted that though the parents had not been living together, they shared custody of the child, who purportedly had a bed in each parent's home. The parties stipulated for the purposes of this proceeding that the removal had been from both respondents and that each was entitled to a hearing under Family Court Act § 1028 for the return of the child. Upon reviewing the allegations in the petition and ascertaining the nature of the evidence the petitioner intended to introduce at the § 1028 hearing, the Court suggested it consolidate the hearing with a fact-finding hearing on the petition itself, with the Court carefully separating any hearsay evidence from consideration on fact-finding. See Matter of Kristina R., 21 AD3d 560 (2d Dep't. 2005). All parties agreed to this procedure.

The consolidated hearing commenced on June 4 and continued on June 5, June 9, June 15, and June 23; summations were delivered on June 29. Petitioner offered the testimony of child protective specialist Clare Fenty; NYPD Detective Whiteman; the paternal grandmother, Jacqueline A., child protective specialist Tyesha Capers; and Brooklyn Hospital pediatrician Dr. Igor Shoreman, whom the Court qualified an expert in pediatric medicine. Petitioner also introduced into evidence Exhibits 1A and 1B (photgraphs), and Exhibits 2 (written statement by Ms. S.), 3 (ORT dated May 26, 2015), and 4 (drug test result for Ms. S. from sample collected June 5, 2015). Exhibits 3 and 4 were considered for the purpose of the § 1028 hearing only. Respondent S. testified on her own behalf, as did Respondent G. The attorney for the child did not offer a case.

Findings of Fact

The child was born on May 16, 2014, and resided in the shared custody of his parents, who lived separately, Ms. S. living with the child's maternal grandmother (and aunts) and Mr. G. living with the child's paternal grandmother. The child spent a majority of his time with his maternal family, being cared for by his aunts when his mother was at work, though Mr. G. was very involved with the child; on Ms. S.'s days off, the parents would spend time together with the child (as well as various other relatives).

Sometime over the Memorial Day weekend (May 23, 24, or 25), the child was at a playground with his parents and cousins when he fell flat on his face. He was not on a matted surface but rather fell directly onto the pavement. The Court credits his mother's testimony that he cried briefly, she picked him up, and then he went back to playing. While Mr. G. initially thought that they should seek medical attention, Ms. S. dissuaded him, pointing out that the injury did not seem that serious and citing her fear of being the subject of an ACS case should they go to the doctor. There is no evidence nor claim by petitioner that the injury happened in any way other than how the respondents' described it in their testimony.[FN1] The Court credits the respondents' testimony that they treated the red mark and scratch under the child's eye with A & D ointment and witch hazel.

When, precisely, the injury occurred is disputed by the parties and matters significantly to the claim of medical neglect. Both respondents testified that it occurred on May 26 (the day after Memorial Day). While Ms. S. acknowledged that the boy's face looked on May 27 as captured in Pet. Ex's 1A and 1B (which were taken on the 27th), she asserted that it did not look nearly that bad on the 26th when he fell; Mr. G. testified similarly.

According to CPS Fenty, Mr. G. initially told her that the injury happened on either Saturday or Sunday the 23rd or 24th; he was not sure which. However, he later told CPS Fenty that the accident occurred on Memorial Day, the 25th, and that the injury did not look that bad at first, but it looked bad when the child woke up on the 26th, and the family planned to take the child to the doctor at that point. This was at variance from his testimony, as noted above.

The Court rejects the respondents' timeline of events as it is contradicted by other, more credible evidence. First, Dr. Shoreman testified that when he saw the injury on May 27th, it looked "maybe 24 hours or older." Second, Ms. S. was caught in at least one obvious lie during the investigation, a prevarication so blatant that it calls into question her assertions in other, related areas. When interviewed by the detectives, she claimed that the child was with Ms. A. when he got hurt, and that Ms. S. was not present. But as Ms. A. herself testified, she was in Las Vegas at all relevant times. Ms. S. later admitted (Pet. Ex 2) that she had lied due to her fear of ACS. Third, Mr. G. testified that he works full-time for Meals on Wheels from Mondays [*2]through Saturdays (as well as a part-time job at Barclays Center) but insisted that he was at the park with his family on May 26th, which was a Tuesday. His explanation that he "took the day off" from work is not credible. The day before was a public holiday and he works two jobs to make ends meet. Fourth, both respondents testified after Dr. Shoreman who, among other things, opined that the child's injury could have looked different when he first fell, and that it looked worse upon presentation at the hospital.[FN2]

It thus appears to the Court that it is more likely than not that the respondents were conforming their testimony to the doctor's and that, given all the evidence, the injury happened on the 25th, not the 26th, and that the bruising on his face started to look bad on the 26th, not on the 27th.

After receiving notification of a report of child maltreatment, CPS Fenty contacted Ms. S. by telephone on the morning of May 27. Ms. S. testified that when the baby woke up, his face looked much worse than when he first fell, and that she intended to take the child for medical care — except that her plans were interrupted when ACS called her and she had to meet Ms. Fenty at her home instead. Though she said the same thing to Ms. A. when speaking to Ms. A. by phone the morning of May 27, Ms. S. conceded in her testimony that she did not tell Ms. Fenty that she was on the way to the doctor with the child. The Court finds Ms. S.'s testimony in Court and her assertion to Ms. A. that she intended to take the child to the doctor the morning of the 27th to be not credible. Rather, the Court credits Ms. Fenty's testimony that when Ms. Fenty met Ms. S. at the case address later in the day, Ms. S. stated that she had a medical appointment for the child scheduled for May 29. Ms. S. repeated this to Ms. Fenty when they gathered later on the 27th at the Child Advocacy Center.

Thus, even if the injury happened on the 26th, the Court finds that Ms. S. did not plan to have it medically assessed until several days after she noticed the bruising to the child's face looked bad. She admitted she was told by several relatives to get medical attention for the child's injury sooner. The Court does credit Mr. G.'s testimony that on the morning of May 27, before leaving for work he told Ms. S. to take the child for medical attention, but the Court does not find credible Ms. S.'s testimony that she did plan to do so that day. As for Mr. G., while the Court does credit his testimony that he told Ms. S. to get medical treatment for the child on the 27th before leaving for work, the Court nevertheless finds that he knew for at least two days that the child should get medical attention and did not take steps to get it for him.

Based on how the child's injury looked and the parents' failure to have obtained medical care for him by the time the authorities were involved, the NYPD called an ambulance for the child from the CAC, and Ms. S. was arrested. Det. Whiteman tried to reach Mr. G. by phone, but Mr. G. hung up on him.

At Brooklyn Hospital, Dr. Shoreman noticed a hematoma under the child's left eye. He testified that whenever a child under the age of two has facial trauma, a complete exam must be performed, including imaging, to rule out brain injury or fractures. In this case, all tests and further examination were negative. The child was not in any distress and based on his presentation, "I was not concerned that there may be something extremely wrong with him." There were no other injuries anywhere else on his body. The final diagnosis was minor trauma to the face, with a hematoma under the left eye, which would heal in time on its own. No further treatment or follow-up care was required and there would be no long term effects.

Fact-Finding Hearing: Analysis

Family Court Act § 1012 defines a neglected child to include one

whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.

Fam. Ct. Act § 1012(f)(i). Here, there is no evidence in the record that the child was actually impaired by his parents' failure to obtain timely medical care for the injury to his face. Dr. Shoreman testified that he behaved like a normal child of his age and that the injury would heal on its own.

Thus, the operative question is whether the respondents' failure to obtain medical care for the child upon seeing his face get worse — to the point that it looked as it did in Pet. Ex's 1A and 1B — put him at "imminent danger" of impairment.[FN3] The Court concludes that the answer to this question is no.

Dr. Shoreman made clear why, from his perspective, it is important for a parent whose young child has a bruise to the face to seek medical attention. "Based on the literature, if there is a hematoma on the face of a child [Legend's] age, I strongly suspect a fracture," and the standard medical practice is to order a CT scan. It is not possible to visualize a facial fracture in a child under the age of two; only imaging can provide definitive information.

Critically, Dr. Shoreman went on to say: "But I am in emergency medicine. This is what I do." That is the context in which he answered a question about whether, in his expert medical opinion, a parent should seek medical attention when her child has a hematoma to the face like Legend's: "If there was any worry on the part of the parent. It is hard to say."

In response to an inquiry from the Court, Dr. Shoreman testified that, had the CT scan come back showing a facial bone fracture, he would have ordered a consult with a specialist to determine the next course of action. Importantly, he did not testify, and there is no evidence in the record, that such a fracture if left untreated would have caused the child harm. Nor is there evidence in the record that the failure to obtain timely medical treatment placed the child at imminent danger of impairment within the meaning of the statute. Matter of Alanie H., 83 AD3d 1066, 1068 (2d Dep't. 2011) ("there was no medical testimony presented, and it is not otherwise evident, that the decision to wait until morning to seek medical care placed the child in imminent danger").[FN4]

While the Court does not condone Ms. S.'s prevarications or Mr. G.'s deference to her fears at the potential expense of his son's well-being, the Court is not prepared to conclude, as a matter of law without evidence in the record, that the failure of the respondents to seek quick medical attention for Legend's facial hematoma caused him impairment or placed him in imminent danger of impairment. The law only requires parents to seek professional medical treatment "when such a course would be undertaken by an ordinarily prudent and loving parent." Matter of Hofbauer, 47 NY2d 648, 655 (1979). Thus, the petition must be dismissed.[FN5]

1028 Hearing: Analysis

The Court having dismissed the petition, the respondents' 1028 application is rendered academic. However, assuming for the sake of argument that there was neglect of the child, the Court nevertheless finds he would not be at imminent risk of harm to be returned to his parents, and that any risk could be ameliorated with a suitable protective order.

In reaching this determination, the Court has considered all of the evidence admitted for the fact-finding portion of the hearing, as well as the hearsay testimony and Pet. Ex.'s 3 and 4. At worst, the parents made one mistake, driven largely by fear of encountering ACS. Now that there is already an ACS case, it would appear that there is no further disincentive to obtaining whatever medical care the child may need.

More importantly, there is no evidence, other than the failure to obtain timely medical care for the child's facial bruise, that the parents provide inadequate care such that the child would be at imminent risk of harm to be returned to their care. The report to the state central registry (Ex. 3) alleges substance abuse and domestic violence, but it must be noted that the [*3]source of the report was anonymous and no similar allegations were pled in the petition. In their testimony, the parents denied that the child's injury was caused by Mr. G. That Ms. S. admitted having lied to her sister about the nature of the injury (she told her sister the child had injured himself by walking into a cabinet) is of no moment. The only evidence at all in support of the allegations in the ORT is Ms. S.'s positive drug test for marijuana (Ex. 4); however, the sample was collected on June 5, approximately one week after the child was removed. There is no evidence that she used any illegal substance while caring for the child.

Notably, Ms. A., the child's paternal grandmother, testified credibly that she has never had any concerns about either parent's caretaking ability or domestic violence between them in the child's presence. She reported that her son dos not drink or smoke and that she has never observed Ms. S. under the influence of substances while caring for the child. This testimony was offered after Ms. S. had falsely claimed that Ms. A. was caring for the child at the time of his injury; given this context, Ms. A. had no particular incentive to provide helpful testimony to the child's mother. The Court is persuaded that the child would not be at imminent risk of harm to be in either parent's care.[FN6]

Conclusion

Based on the foregoing, IT IS HEREBY ORDERED that the petition be DISMISSED WITH PREJUDICE after trial. The petitioner is directed to return the child to the respondents. The petitioner's application to extend the statutory stay under Family Court Act § 1112(b) is granted; the return must occur by 5pm on July 1, 2015, unless a stay of this order is granted by the Appellate Division. Any party seeking such a stay shall notify Family Court of the application and the result.

Dated: June 29, 2015ENTER

____________________________________

Hon. Erik S. Pitchal Footnotes

Footnote 1:There was some insinuation that the injury may have been caused by Mr. G. trying to hit Ms. S. and accidentally striking the child instead, but no evidence admissible at fact-finding supported this theory.

Footnote 2:Ms. A. testified credibly that she received a call from her daughter informing her of the child's injury when it was late in the evening of May 25 in New York (or early in the morning of May 26). This testimony was not considered as part of the Court's fact-finding analysis as it is hearsay.

Footnote 3:The Court rejects the assertion by counsel for petitioner and the attorney for the child that the respondents provided inadequate guardianship by not watching the child carefully enough in the park. Ordinarily prudent parents engage in adult conversation on park benches while their small children play 20 feet away, and sometimes children fall and hurt themselves.

Footnote 4:Though pled as an inadequate guardianship case, the Court finds that caselaw in the medical neglect area is most applicable, as there is no factual support in the record for a finding of inadequate guardianship other than the question of whether the respondents provided adequate medical care for the child. See supra at 5 n. 3.

Footnote 5:Matter of Zakrya M., 18 AD3d 754 (2d Dep't. 2005) and Matter of C. Children, 207 AD2d 888 (2d Dep't. 1994), cited by petitioner, are inapposite as they were res ipsa cases, not medical neglect cases. Matter of A. Children, 189 AD2d 872 (2d Dep't. 1993), does not contain a recitation of facts sufficient to be helpful to the Court's analysis.

Footnote 6:If the Court were not dismissing the petition after fact-finding, the Court would grant the respondents' § 1028 application and release the child to them with an order requiring them to cooperate with ACS supervision and preventive services; ensure the child attends all necessary medical appointments receives prompt medical attention for any emergency; and enroll in and complete an evidence-based parenting skills course as referred by the agency. Additionally, the Court would direct Ms. S. to submit to random drug screens, and if she tests positive to cooperate with an evaluation by a credentialed alcohol and substance abuse counselor and follow the CASAC's recommendations.