Matter of Jada S. (Geraldine S.)

[*1] Matter of Jada S. (Geraldine S.) 2015 NY Slip Op 51692(U) Decided on November 24, 2015 Family Court, Kings County Wan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2015
Family Court, Kings County

In the Matter of a Proceeding Under Article 10 of the Family Court Act, JADA S. and JAYDEN S., Children Under Eighteen Years of Age Alleged to be Severely Abused/Abused/Neglected by

against

GERALDINE S. and AVRUM M., Respondents.



xxxx



Nicola Gibson, Esq., Administration for Children's Services, Attorney for the Petitioner

Lauren Shapiro, Esq., Brooklyn Defender Services, attorney for the Respondent Mother

Gail Rich, Esq., Attorney for the Children

Richard Colodny, Esq., Attorney for the Person Legally Responsible
Lillian Wan, J.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Procedural History

On February 11, 2014, the Administration for Children's Services (hereinafter petitioner or ACS), filed a pre-petition application pursuant to Family Court Act (hereinafter F.C.A.) §1022 seeking a removal of the two-year-old subject child, Jada S. (DOB xx/xx/11).[FN1] The petitioner [*2]alleged that the child's twin sibling, Jayden S. (DOB xx/xx/11), was pronounced dead on February 6, 2014, and that ACS was informed by the New York Police City Department that the respondent mother threw Jayden against a couch on February 2, 2014. The petitioner further alleged that the Medical Examiner's office had ruled the death a homicide and the mother was arrested. The Court granted the request for pre-petition removal and adjourned the matter for the filing of the Article 10 petition.

On February 18, 2014, the petitioner filed an Article 10 petition against the respondent mother, Geraldine S., and the respondent/person legally responsible Avrum M. The petition alleges that the respondent mother severely abused the child Jayden in that Jayden died on February 6, 2014 as a result of blunt force trauma to the abdomen with mesenteric lacerations, evulsion of the small bowel, and hemoperitoneum. The subject child's death was ruled a homicide by the Medical Examiner's office. The petition further alleges that the respondent mother made a statement to the police that she picked up Jayden and threw him against a couch causing the child to land on an exposed wooden bar on the couch, and that when she threw Jayden on to the couch, he started to cry and grab his back in pain. The petition further alleges that the mother abused Jayden pursuant to F.C.A. §1012 based on the same factual allegations. The petition also alleges that the respondent mother neglected Jayden by failing to supply the subject child with adequate medical care. The petition further alleges derivative severe abuse, derivative abuse, and derivative neglect as to the surviving sibling Jada.

With regards to Mr. M., the petition alleges that he is a person legally responsible for the children in that he is continually found in the same household as the children and had caretaking responsibilities for the children. The petition alleges that Mr. M. neglected Jayden by failing to supply the child with adequate medical care and that he derivatively neglected the child Jada. When the case was initially arraigned on February 18, 2015, Mr. M. was not present, however counsel for the petitioner clarified that Mr. M. was only being charged with allegations of neglect based on his failure to obtain timely medical care for the child, and that only the mother was being charged with abuse and severe abuse. Furthermore, the petitioner stated its intention to prove severe abuse against the respondent mother pursuant to Social Services Law (hereinafter S.S.L.) §384-b by clear and convincing evidence. The respondent mother appeared on the day the petition was filed and was advised by the Court that a finding of severe abuse by clear and convincing evidence can be the basis to terminate parental rights. Jada was remanded to the petitioner's custody. On February 27, 2014, Mr. M. appeared in court, accepted service, waived a formal reading of the allegations, entered a general denial and was assigned counsel. Mr. M. did not return to court after his first appearance.

The petitioner filed a prior Article 10 petition against the respondent mother on August 3, 2011 alleging that she neglected her then three month old twins, Jada and Jadyen S., in that she failed to provide the children with adequate food and/or adequate medical care. The petition alleged that on or about August 1, 2011, the subject children were observed to be visibly malnourished and dehydrated. The children were transported to Interfaith Hospital where they were diagnosed with dehydration and poor weight gain, which medical personnel reported to be the result of neglect. The petition further alleged that at the time, Jayden weighed eight pounds and Jada weighed seven pounds thirteen ounces. Medical personnel indicated that the children should weigh between twelve to fourteen pounds. The subject children were initially remanded [*3]to the custody of ACS and placed in non-kinship foster care. The children remained in foster care for approximately sixteen months. Permanency hearings were held on March 8, 2012 and August 13, 2012 where the permanency planning goal of return to parent was approved by the Court. Pursuant to both permanency hearing orders, the respondent mother was allowed partial unsupervised visitation in the community that began and ended at the foster care agency. On December 7, 2012, the mother's neglect case was resolved with an Adjournment in Contemplation of Dismissal (hereinafter ACD).[FN2] Pursuant to that ACD order (J. Weinstein), the subject children were released to the custody of the mother under ACS supervision for six months. The order required the mother to remain in the foster home of Patricia G. with the children for the duration of the ACD.[FN3] The ACD expired on or about June 7, 2013. The instant severe abuse petition was filed approximately ten months after supervision ended on the prior case.

The fact finding commenced on February 4, 2015 and was continued on April 22, 2015, June 4, 2015, August 3, 2015, and September 21, 2015. Mr. M. did not appear at any of the fact finding dates, and his lawyer did not participate. At the conclusion of the respondent mother's case on September 21st, counsel for the mother requested written summations.

The Petitioner's Prima Facie Case

The petitioner's prima facie case consisted of the testimony of ACS caseworker Mr. Avinash Maharaj, medical examiner, Dr. Irini Scordi-Bello, and media services technician, Curtis John. The documentary evidence consisted of two Oral Report Transmittals, Coney Island Hospital records, Maimonides Medical Center records, the curriculum vitae of Dr. Scordi-Bello, the Medical Examiner's records, autopsy photographs, and the respondent mother's video taped statement.

Mr. Maharaj interviewed the respondent mother on February 7, 2014. Mr. Maharaj testified that the respondent mother was in foster care herself at the time of the filing of the instant petition. The respondent mother told Mr. Maharaj that she had a prior case with ACS where her children were removed and placed in foster care due to allegations of failure to thrive. The mother further stated to Mr. Maharaj that on February 3, 2014, Jayden had a runny nose and was coughing, and that she gave him motrin. On February 4, 2014, Jayden had a stomach virus and a fever, and he wanted junk food but the mother gave him chicken noodle soup. The mother indicated that she did not take Jayden to the doctor because Jada had the same symptoms and she got over it. At 9:00pm on February 4, 2014, Mr. M. came home from work and she left the children in his care to go to the store to buy chicken soup and beer. The mother further stated that on February 5, 2014, the children were playing, Jayden fell asleep, and when she woke him up, she observed that Jayden passed two balls of feces. She proceeded to give him a bath where he was playing and talking, and she put him back to bed after the bath. She further stated that Jayden had a fever that day and she gave him motrin.

The mother further stated to Mr. Maharaj that on February 6, 2014, at approximately 2:00am or 3:00am, she woke Jayden up to eat chicken soup but he ate very little. She also stated he was not looking like himself, he was leaning and not talking. Later on in the morning she called 911. Jayden went to Coney Island Hospital at around 4:00am and Jada stayed with Mr. M. The mother told Mr. Maharaj that when she got to the hospital, she observed "green stuff" come out of Jayden when they pressed on his stomach. He was given antibiotics, blood work was done, and twenty-five minutes later he was non-responsive. Everyone rushed into the room and then she was notified that he passed away. The mother told the caseworker that the children had a pediatrician, and were up to date on immunizations. Mr. Maharaj further testified that the respondent mother had no prior substance abuse history, no prior mental health history, and no prior allegations of physical abuse. Mr. Maharaj observed the mother interacting with Jada during the course of his interview on February 7, 2014. He noted that Jada was neat and clean, adequately dressed and that she was free of marks and bruises, and the interaction was positive.

With regards to Mr. M., Mr. Maharaj testified that he spoke to Mr. M. on one occasion, on February 27, 2014, when he appeared in court. Mr. M. told Mr. Maharaj that he would spend one to three nights per week at the case address and that he would visit every day. He further stated that the children would call him "daddy" and that he would tell the mother to punish the children by having them stand in the corner with their hands up. Between February 2, 2014 and February 6, 2014, he indicated that he would spend the night at the mother's home, leave and go to work, and then return after work and spend the night again. Mr. M. further stated that on February 6th, the respondent mother called 911, Jayden and the mother went to the hospital, and he stayed home with Jada. He was later informed by the mother that Jayden passed away.

ACS introduced an Oral Report Transmittal dated February 6, 2014 (Petitioner's Exhibit 1), called in by a case planner from Seamen's Society as well as an Oral Report Transmittal dated February 7, 2014 (Petitioner's Exhibit 2), called in by NYPD officer Edwin Saenz. The petitioner also introduced Coney Island Hospital records (Petitioner's Exhibit 3). The EMS report is contained in this record and establishes that the respondent mother called 911 at approximately 4:38am on February 6, 2014, reporting that Jayden had been sick for two days with low appetite, weakness, and elevated temperature. The initial history lists the chief complaint as vomiting and diarrhea, and the history provided by the mother was that Jayden suffered from a high fever and cough for four days, and that for two days, Jayden was having difficulty breathing, and that Jayden was vomiting and having diarrhea four to five times each day. The respondent mother further reported that "he was getting progressively tired and by morning was not able to stand" so she called 911. The respondent mother also reported that Jayden had not eaten well in four days. Given the history that was provided, a sepsis protocol was initiated. Jayden was noted as "acutely ill" and his skin was described as "clammy, cold extremities" and his abdomen was "distended." The primary diagnosis was noted to be sepsis. There was no history of injury provided to medical staff at Coney Island Hospital. The records also note that Jayden vomited during his physical examination and that Jayden was found in the pediatric emergency department in "critical condition" and "lethargic." The radiology results were abnormal and showed "distended bowel loops" "indeterminate in etiology." Jayden was transferred from Coney Island Hospital to Maimonides Medical Center (hereinafter Maimonides) at approximately 10:40am.

The Maimonides records were introduced as Petitioner's Exhibit 4 and 5. Jayden arrived at Maimonides at 11:04am on February 6, 2014. He was accompanied by the respondent mother. His admission and primary diagnosis was noted as "unspecified septicemia," and the secondary diagnosis was noted to be "cardiac arrest, septic shock, unspecified vascular insufficiency of intestine, severe sepsis, and unspecified intestinal obstruction." The respondent mother provided the same history to Maimonides staff as she provided to Coney Island Hospital staff. The mother reported that Jayden had a cough and fever for four days and vomiting and diarrhea for two days, and was dehydrated. She further reported that the child's last bowel movement was yesterday and that the child passed two large balls followed by diarrhea. She also informed medical staff that Jayden became progressively weak, and was unable to walk this morning so she took him to the emergency room. Jayden's condition deteriorated rapidly at Maimonides. The records note that Jayden's respiration became increasingly labored and he had waxing and waning of alertness. The decision was made to intubate. Diagnostic imaging results revealed that Jayden had a "bowel obstruction" and "probably bowel wall pneumatosis often associated with bowel ischemia." Surgical staff was immediately consulted for emergency surgery, however Jayden went into cardiac arrest while awaiting surgery. Medical staff attempted to resuscitate the child for fifty minutes to no avail. Jayden was pronounced dead at 1:26pm.

The respondent mother's videotaped statement at the 61st Precinct on February 10, 2014 was entered and played into evidence as Petitioner's Exhibit 9. The petitioner called Curtis John, a media services technician with the Kings County District Attorney's Technical Services Unit, to lay the foundation for the video statement. The respondent mother was questioned by the assistant district attorney with two detectives present. When asked about what happened on Sunday, February 2, 2014, the respondent mother stated that she was getting ready to watch the Super Bowl. She relayed that she was a single mom and that it was "very hard." She described both the children as being "difficult" and in their "terrible twos." The mother stated that it was stressful to care for two children without family there for her. The mother denied drinking alcohol to relieve stress and stated that "I may have one beer but I'm not an alcoholic drinker." She did acknowledge that she drank half a can of beer on the night of the Super Bowl, but she stated that she was not intoxicated. The mother explained that on that Sunday, she was cooking the children dinner and the children were running around. The mother stated that she got "a little overwhelmed with the whole situation," and that she wanted the children to be seated. The mother further explained that she "tossed" Jayden on the couch, and she "tossed" Jada the same way. After she did that, Jayden cried and held on to his lower back so she ran to him and rubbed his back. She stated that he cried for less than a minute, and that she did not think anything of it. The mother stated that Jayden must have hit his back on the wooden piece of the couch. She explained that her whole couch is wooden but some parts of the couch have a leather covering.[FN4] She further explained that she has two couches in the living room and that she separated the children that Sunday night by putting them each on a different couch. The mother demonstrated how she "tossed" Jayden, with two outstretched arms, emphasizing that she did not throw Jayden. She told him to "sit down" while she tossed him. She stated that she was standing approximately two feet away from the couch when she "tossed" him. The mother stated that by [*4]Monday, both of the children started to get a cold, and she thought that Jada passed her cold to Jayden. She described both children as having a "snotty nose" and cough.

The mother further stated that over the next few days, Jada got better but Jayden got worse and "it started escalating." According to the mother, on Tuesday, Jayden had a high fever and was vomiting. Jayden refused to eat the Campbell's chicken noodle soup she made him, and he kept saying he wanted water. The mother gave him water, but he threw it back up. By Wednesday, the respondent mother gave Jayden Ensure because he was not eating, but he vomited the Ensure. The respondent mother further stated that Jayden was having diarrhea and that earlier on Wednesday he had "2 big balls of stool and a lot diarrhea." She described Jayden as having "so much bowel movement that it was dripping through his pants." The respondent mother had to clean the bathroom floor and give Jayden a bath. Afterwards, she put clean clothes on Jayden and sent him back to bed. Jayden continued to refuse to eat on Wednesday. The mother attempted to feed Jayden another can of soup on the couch, but he refused to eat. The mother described Jayden as "slouching" and "like he always wanted to lay down." As she tried to feed Jayden, he was "tilting over." The respondent mother was asked about Jayden's breathing and she stated that "it wasn't a regular breathing." At that point she called 911 and EMS came. The respondent mother accompanied Jayden in the ambulance and they arrived at Coney Island Hospital at approximately 4:00am on Thursday, February 6, 2014. Finally, the mother was asked about the children's pediatrician. The respondent stated that the children had a pediatrician, but she did not know the pediatrician's name, and the children's prior foster mother, Ms. G., would know this information better. The mother also confirmed that neither child was sick before Super Bowl Sunday.

Dr. Irini Scordi-Bello testified as the petitioner's expert witness. All counsel consented to Dr. Scordi-Bello being deemed an expert in forensic pathology. Dr. Scordi-Bello's curriculum vitae was received into evidence as Petitioner's Exhibit 6. Dr. Scordi-Bello is currently employed by the Office of the Chief Medical Examiner and works out of the Brooklyn, New York office. Dr. Scordi-Bello received a Ph.D from the University of Miami, Department of Microbiology and Immunology and her medical degree from Mount Sinai School of Medicine of New York University. She is board certified by the American Board of Pathology in the fields of anatomic pathology and forensic pathology. She is a member of the United States and Canadian Academy of Pathology and the College of American Pathologists. Dr. Scordi-Bello has vast teaching experience and has published extensively. She is currently an adjunct assistant professor at Mount Sinai Hospital in the Department of Pathology and she is also a clinical instructor at New York University, Department of Forensic Medicine. Some of Dr. Scordi-Bello's peer-reviewed publications include: Ischemic Bowel Due to Embolization from a Single Isolated Mobile Thrombus of the Ascending Aorta: Case Report and Review of Literature from the Journal of Thrombosis and Thyrombolysis; Massive Upper Gastrointestinal Hemorrhage Due to Adenosquamous Carcinoma of the Pancreas: Case Report and Literature Review from the Journal of Gastrointestinal Oncology; and Pseudoxanthoma Elasticum: A Case of Total Gastrectomy for Gastric Hemorrhage, from the American Journal of Surgery.

During Dr. Scordi-Bello's testimony, medical records from the New York City Office of the Chief Medical Examiner, which included the autopsy report (Petitioner's Exhibit 7), and thirteen autopsy photographs (Petitioner's Exhibit 8) were entered into evidence. The autopsy [*5]report is dated October 6, 2014. The Final Diagnoses include the following: Blunt impact injuries of torso with (a) multiple mesenteric lacerations, anamnestic hemoperitoneum (1000cc), (b) small bowel evulsion with ischemia, (c) right adrenal hematoma, and (d) right abdominal wall soft tissue hemorrhage. The cause of death is listed as "blunt force trauma of abdomen with mesenteric lacerations, small bowel evulsion and hemoperitoneum." The manner of death is listed as "homicide (abdominal injuries inflicted by other)." Dr. Scordi-Bello testified that the autopsy was conducted on February 8, 2014, but her final report was not finalized until October 2014, approximately eight months later. Dr. Scordi-Bello clarified that in pediatric cases, it is not unusual for it to take six months to a year to issue a final autopsy report. In this particular case, Dr. Scordi-Bello indicated that she consulted with several other medical examiners in her office as these cases are rare, so when a case like this does come in, it is a case that is discussed and presented with many other medical examiners. The doctor also noted that in this case there was a lot of histologic examination and looking at tissues under a microscope.

The subject child Jayden was two years and nine months at the time the autopsy was performed. Dr. Scordi-Bello testified that she did both an external and internal examination of Jayden, and she noted that an autopsy was initially started at Maimonides so she observed that there had already been an incision on the child's body. She further testified that Dr. Li, a pathologist at Maimonides, removed the heart and lungs and noted that there was a large amount of blood evacuated from the abdominal cavity. She described that somewhere between a liter and a liter and a half of blood was removed. She noted that a child of Jayden's size and age has somewhere between a liter and a liter and a half of blood in the entire body to begin with. Dr. Scordi-Bello explained that this case was initially turned down by the Medical Examiner's office because the history provided did not suggest any suspicious circumstances. The case was again referred to the Medical Examiner's office after Dr. Li commenced the autopsy and discovered the large amount of blood in the abdomen, and it was accepted upon the second referral. Dr. Scordi-Bello testified that Jayden's injuries were not visible and that they were all internal injuries that could not be diagnosed without radiographic imaging, such as a CAT scan or MRI. Coney Island Hospital did not work Jayden up for internal injuries and they initially diagnosed him with sepsis and dehydration before transferring him to Maimonides for a higher level of care.

Dr. Scordi-Bello further testified that the main findings in the internal examination include a number of mesenteric lacerations. She explained that a laceration is a tear and the mesentery is a membrane, an organ in the abdomen that supports and attaches the small bowel and also provides blood to the small bowel. She further described that there was a segment of the small bowel which had been evulsed or torn from the mesentery. Further findings included a hematoma, which the doctor described as a collection of blood, in the right adrenal gland which is the gland that sits on top of the kidney on the right side. The doctor further noted that there was hemorrhage or bleeding that was present on the right side of the body, deep in the psoas muscle, which is a muscle that runs from the abdomen down towards the leg. Dr. Scordi-Bello testified that Jayden's death was caused by "hemoperitoneum." She described the peritoneum as the abdominal cavity, and "hemo" stands for blood so it refers to the presence of blood in the peritoneal cavity. Thirteen photographs depicting Jayden's internal injuries were displayed to the court and explained in detail by the doctor. Dr. Scordi-Bello described each [*6]photograph allowing this Court to see the mesenteric lacerations, the blood in the abdomen, the blood in the adrenal gland, and the torn segment of the small bowel.

The doctor testified to a reasonable degree of medical certainty that Jayden's injuries were not accidental or self-inflicted and that the manner of death was ruled a homicide. Dr. Scordi-Bello further stated that as part of the autopsy, she evaluated possible metabolic causes for Jadyen's death and ultimately concluded that there were no metabolic causes. The doctor had not viewed the videotaped statement of the respondent mother, but when asked hypothetically whether the mother throwing the child onto a couch causing him to land on an exposed wooden bar could be the cause of the injuries, she replied that it would be consistent with the injuries depending on how the child landed on the couch, from what distance he was thrown and how forcefully he was thrown. The doctor further clarified that it would require a "significant amount of force" but she was not able to quantify the force beyond that. Dr. Scordi-Bello further testified that she did not believe that a blow to just the child's back caused the injuries, however a blow to the back could have contributed to Jayden's injuries. She further noted that the trauma to Jayden was more to the front and right flank or right side as opposed to the back. The doctor noted that Jayden did not have any observable external injuries and that the presence of bruising on the back is a possibility with a blow to the back, however she also noted that bruising is not always present.

Dr. Scordi-Bello further noted that Jayden's condition would have worsened from February 2nd to February 6th, and that at the initial stages he would have exhibited some nausea and vomiting, and in the later stages of the injury there would have been heavy breathing, elevated heart rate and low blood pressure. Dr. Scordi-Bello also testified that some of Jayden's symptoms, such as fever, nausea, and vomiting resembled flu-like symptoms, however she did not believe that these injuries would have caused diarrhea.

Dr. Scordi-Bello further testified that Jayden's injuries could have been repaired if he had received prompt medical attention. She based this opinion on the literature and case reports of mesenteric lacerations that have been successfully repaired surgically. Dr. Scordi-Bello stated that there was no history that Jayden suffered any accidental or inflicted trauma prior to his hospitalization. Dr. Scordi-Bello stated that if any history of trauma was disclosed to medical personnel, given Jayden's symptoms, including low blood pressure and elevated heart rate, bleeding would have been on the clinician's differential, and the child would have been taken to the operating room for surgical intervention. The doctor further opined that in the process of suturing up the mesenteric lacerations, the surgeons would have seen the part of the small bowel that was evulsed and either repaired it or removed it.

The doctor testified to a reasonable degree of medical certainty that Jayden's injuries were caused by blunt force trauma. Dr. Scordi-Bello further stated that the evulsed or torn small bowel was the result of "severe" blunt force trauma. The doctor further elaborated that there were "at least two, if not more" incidents of blunt force trauma. Dr. Scordi-Bello based this conclusion on her observations of the tissues under the microscope, where she could see evidence of repair and healing, a process that takes place over days, and the large amount of fresh blood that was found in Jayden's abdomen on February 6, 2014. The doctor further considered Jayden's presentation at the hospital and his rapid decompensation. With regards to exactly which day Jayden sustained his injuries, Dr. Scordi-Bello acknowledged that dating these injuries is a very [*7]inexact science especially in children, however she did conclude within a reasonable degree of medical certainty that "some" of the medical findings are consistent with the injuries being sustained on February 2, 2014.

Dr. Scordi-Bello rejected the proposition that this was one injury that bled slowly over a number of days. She described the large amount of fresh blood in the abdomen as "an acute event." Dr. Scordi-Bello concluded that the blood was fresh and had no time to clot. The doctor further rejected the theory that this was a slow bleed because something that is oozing or bleeding very slowly and takes four or five days to accumulate will have a different presentation and would not be liquid blood. Dr. Scordi-Bello described that this was liquid fresh blood that was removed from the child's body and that fresh hemorrhage was also observed under the microscope. Dr. Scordi-Bello stated that the initial injury was injury to the small bowel, specifically, the small bowel was partially torn and that segment of the small bowel started to "die off." In Dr. Scordi-Bello's opinion, this explained a lot of Jayden's symptoms because when the intestine died off, bacteria exited the bowel and entered Jayden's blood stream, leading to infection. The doctor further noted that while the initial injuries involved a very significant or large amount of force, the second incident could have been from a smaller amount of force because the injured tissue was weak and susceptible to more injury. The doctor testified to a reasonable degree of medical certainty that this was not an accident, and this could not have been anything other than inflicted trauma.

The Respondent Mother's Case

The respondent mother's case consisted of the testimony of Jada's current foster mother, Patricia G., foster care agency case records (Respondent mother's Exhibit A), and a certificate of conviction from February 11, 2010 (Respondent mother's Exhibit B), establishing that Mr. M. was convicted of criminal possession of a weapon in the second degree. The foster care agency case records cover the time period January 2012 to November 2012, when the children were in foster care pursuant to the prior Article 10 case against the mother. These records contain approximately twenty one entries from caseworkers, Keisha Sprott and Michael Castro, and they relate to the caseworkers' observations of the interactions between the mother and the children during the course of agency supervised visitation. The mother had visits with the children on Mondays, Thursdays and Fridays from 4:00pm to 6:00pm. During this time period, the mother had one hour of unsupervised time with the children, where she would often take the children to the park, and then an hour of visitation supervised by either the caseworker or the visitation specialist. The entries all describe positive interaction. The sum and substance of these entries are that the mother was appropriate with the children, she cared for the basic needs of the infants, including diapering and feeding, she played with the children, and was concerned for their well-being. No safety concerns were raised by any of the visits. The records also contain two entries from event dates January 8, 2014 and January 24, 2014. These entries relate to the mother's case as a voluntarily placed foster child. A caseworker went to the respondent's home on both these dates and observed that the mother's home had window guards, a working smoke and carbon monoxide detector, and the mother had food in the home. The children were dressed appropriately and had no marks or bruises.

Ms. G. testified that she has been Jada's foster mother for about a year. She was also the prior foster parent when both Jayden and Jada entered foster care at three-months-old, in or about [*8]August 2011. The respondent mother came to live with Ms. G. and the subject children on December 7, 2012, and the mother resided in her home until the mother moved out with the children on June 25, 2013. Ms. G. testified that she brought both children for weekly visits with their mother at the foster care agency, and she observed the interaction between the children and the mother. She noted that the mother was attentive to the children, that she never saw the respondent mother lose her patience with the children, and never saw her yell or hit the children. Ms. G. further stated that when the mother moved in with her, she had no concerns about the mother's care of the children and she observed that the respondent always tried to keep the children safe, and that she always held the children's hands when they were outside the home. After the mother and the children moved out of her home in June of 2013, Ms. G. visited the mother at her home two or three times between June 2013 and February 2014, and she observed the children to be nice and clean and she had no concerns about the children. Ms. G. further testified that she did not have any contact with the mother and children between February 2, 2014 and February 6, 2014, and she had no knowledge of the events that transpired between those days.

Discussion

In the instant case, the petitioner has plead in the alternative, alleging both severe abuse, abuse and neglect of Jayden, and derivative severe abuse, abuse and neglect as to Jada. The deceased child, Jayden is named as a subject child on the petition. The Court of Appeals has made it clear that an Article 10 petition can be brought on behalf of a deceased child. Matter of Alijah C., 1 NY3d 375 (2004). Turning first to the abuse count, the petitioner has established by a preponderance of the evidence that Jayden is an abused child as defined in F.C.A. §1012(e). 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, 854 (2nd Dep't 2014); see also Matter of Katrina W., 171 AD2d 250 (2nd Dep't 1991). 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 upon 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, or creates 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 caretaker 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 respondent was the caretaker 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 [*9]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. 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 respondent 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 respondent 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, 155 (1st Dep't 2004).

In the instance case, the petitioner has established by a preponderance of the evidence that the subject child Jayden sustained injuries that would ordinarily not occur absent an act or omission of his caretaker. The petitioner's medical expert, Dr. Scordi-Bello, credibly testified to a reasonable degree of medical certainty that Jayden's injuries were not accidental, and she was unequivocal in her testimony that Jayden's death was a homicide, meaning his death was caused by another individual. Dr. Scordi-Bello's final diagnosis was that Jayden suffered numerous blunt impact injuries of the torso, including the multiple mesenteric lacerations or tears to the membrane that attaches the small bowel and also provides blood to the small bowel, as well as small bowel evulsion, a hematoma in the right adrenal gland and right abdominal wall soft tissue hemorrhage. Dr. Scordi-Bello further testified that some of Jayden's injuries were consistent with trauma being inflicted on February 2, 2014. Dr. Scordi-Bello further explained that the mother throwing the child on the couch, causing the child to land on a wooden bar, is consistent with the child's injuries, depending on how the child landed on the couch, from what distance he was thrown and also how forcefully he was thrown. Although Dr. Scordi-Bello was unable to quantify the specific amount of force used, she testified that it had to be a "significant" or "large" amount of force that was applied. Notably, Dr. Scordi-Bello testified to a reasonable degree of medical certainty that Jayden sustained "at least two, if not more" incidents of blunt force trauma to the abdomen. Dr. Scordi-Bello was clear that some of the tissues that she examined under the microscope were in the process of repair and healing, but that the large amount of fresh liquid blood found in Jayden's abdomen was the result of "an acute event." Dr. Scordi-Bello ruled out any possible metabolic causes for Jayden's death during the course of the autopsy. She spent eight deliberate and careful months reviewing medical records and histological slides, and consulting with other medical experts in reaching her final diagnosis.

The respondent mother's statements to the ACS caseworker and her videotaped statement at the 61st Precinct established that the respondent mother was the primary caretaker for both children when Jayden's injuries were sustained. Once the petitioner satisfied its prima facie burden, the burden of going forward to rebut the evidence of abuse shifted to the respondent mother. Matter of Philip M., 82 NY2d at 244. The Court finds that the respondent mother failed [*10]to rebut the petitioner's prima facie case. First, the respondent mother did not present any medical evidence, testimonial or documentary, to rebut the Medical Examiner's testimony. The only witness for the respondent mother was Patricia G., the current and former foster parent of Jada. While the Court found Ms. G. to be a credible witness who seemed sympathetic to the respondent mother, her testimony ultimately had little relevance to the Court's determination of whether the mother's actions constituted abuse or severe abuse. The foster mother could not speak to the allegations in the petition because she was not present in the home from February 2nd to February 6th, and she had very little contact with the mother and the children in the eight months leading to the filing of the instant petition. Similarly, the agency case records add little to aid the Court in its analysis of whether the mother's conduct constitutes abuse and/or severe abuse. There was nothing in those records to suggest that the mother would physically harm the children in any way, nor was there any way of predicting the events that led to the filing of this current severe abuse petition. It is not disputed that the mother had positive interaction with the children in the year 2012. In fact, the petitioner and the attorney for the children consented to an ACD on the mother's prior neglect case, and the court in fact entered the ACD order on December 7, 2012, and the children were released to the care of the mother under six months of ACS supervision. It is also not disputed that there were no significant safety concerns for the children during the ACD supervision period. ACS did not file a petition seeking to violate or extend the ACD order, and supervision expired in June of 2013.

Contrary to the respondent mother's argument on summation, evidence that shows that the respondent mother was observed to be a caring and appropriate parent during the course of agency supervised visits, does not serve as a defense to the petitioner's prima facie case of abuse. Notably, the twenty one entries related to the mother's interaction with the children were all recorded in the limited context of a highly controlled supervised setting at a foster care agency, a setting where the mother knew she was being watched and evaluated. The Court cannot conclude that this is not the type of parent who could commit such serious acts of abuse. There is no prototype for a parent who abuses a child.

The respondent mother further argues, on summation, that Mr. M.'s conviction for criminal possession of a weapon in the second degree four years prior to the filing of the petition makes it more likely than not that Jayden's injuries were inflicted by Mr. M., and not the respondent mother. The mother also argues that since Mr. M. was present in the home during the time frame in which Jayden's injuries were sustained, that he is the one who abused Jayden. These arguments are without merit and do not rebut the petitioner's prima facie case of abuse. Mr. M.'s conviction has no bearing on the Court's determination as it relates to the mother. The Court notes that Mr. M. is not even charged with the abuse of Jayden. ACS clarified on the first day that the petition was filed that Mr. M. is only being charged with medical neglect of Jayden and derivative medical neglect of Jada. Only the mother is charged with abuse and severe abuse. Appellate courts have ruled that 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 Dep't 2012); Matter of Seamus K., 33 AD3d 1030 (3rd Dep't 2006).

Turning specifically to the severe abuse count of the petition, based on the Court's review of the current case law surrounding the issue of severe abuse, and the totality of the evidence before the Court, the Court finds that the petitioner has established that the mother's actions [*11]towards Jayden constitutes severe abuse under Social Services Law (hereinafter S.S.L.) §384-b(8)(a)(i), and that a derivative finding of severe abuse should be entered as to the surviving sibling Jada.

The Court can enter a finding of severe abuse in addition to a finding of abuse under F.C.A. §1012(e), however if the Court makes an additional finding of severe abuse, "the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence." S.S.L. §384-b(8)(a)(i) states, in relevant part, that a severely abused child is a child who has been found to be abused as a result of a parent's reckless or intentional acts "committed under circumstances evincing a depraved indifference to human life, which results in serious physical injury to the child according to New York State Penal Law §10.00." Section 10.00 of the Penal Law defines serious physical injury as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." The distinction between a finding of abuse pursuant to Family Court Act §1012(e) and a finding of severe abuse under the Social Services Law §384-b(8) is a critical one as a finding of severe abuse as defined under the Social Services Law is a statutory basis for terminating parental rights. See S.S.L. §384-b(4). Furthermore, F.C.A. §1051(e) provides that a severe abuse finding "shall be admissible in a proceeding to terminate parental rights." F.C.A. §1051(e).

A severe abuse finding also constitutes "aggravated circumstances" under F.C.A. §1012(j). A finding of aggravated circumstances is also a basis for a motion pursuant to F.C.A. §1039-b, whereby the agency could request a finding that reasonable efforts to return the child to his or her home are no longer required. Such a finding relieves the agency of their affirmative obligation to work with a parent towards reunification with the child.

In Matter of Dashawn W., 21 NY3d 36 (2013), the Court of Appeals clarified the meaning of "depraved indifference to human life" under the Social Services Law §384-b(8)(a)(i). The Dashawn W. Court drew a distinction between the definition of depraved indifference under the Penal Law and depraved indifference under child protective statutes. The Court noted that under the Penal Law, a crime requiring proof of an intent to kill can never be committed with depraved indifference. Furthermore, the Court noted, in the criminal context, that it is only in a few rare circumstances where a defendant may be convicted of depraved indifference murder in a one-on-one situation, however acts of child abuse necessarily involve one-on-one violence. The Court emphasized that the Social Services Law definition provides that a child can be found to be severely abused as a result of reckless or intentional acts of the parent. The Dashawn W. Court ultimately held the following:

In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law §384-b(8)(a)(i). For purposes of that statute "circumstances evincing a depraved indifference to human life" refers to the risk intentionally or recklessly posed to the child by the parent's abusive conduct. Id. at 49.

The facts of Dashawn W. involved multiple injuries to a five-month-old baby, including a fractured collarbone and fractured ribs. The petitioner's expert testified that the most likely cause of the fractured collarbone was a direct blow to the shoulder and that the broken ribs were most [*12]likely an inflicted injury caused by a direct force to the middle of the chest or blunt trauma to the side of the chest. The respondent's explanation for the injuries, which included that the two-year-old sibling of the baby pulled the child's arms, was deemed as medically implausible. The Court of Appeals found that the petitioner established severe abuse by clear and convincing evidence. The Court noted that the respondent had to have been aware of the life threatening risks he created when he applied brute force to a baby's chest and shoulder. The Court further noted that the respondent delayed in seeking medical care for the child until the early evening hours even though he noticed the child suffering from 11:00am on. It was also significant that the respondent offered unbelievable explanations for the child's injuries to medical personnel and he did not testify at the fact finding hearing.

In Matter of Amirah L., 118 AD3d 792, (2nd Dep't 2014), a case decided after Matter of Dashawn W., the Second Department, reversed the Family Court's decision dismissing the severe abuse count of the petition. Amirah L. involved the death of a nineteen-month-old child who sustained extensive bruising to the face, chest, abdomen and back. Injuries included a fractured jaw, a perforation of part of her intestine, blood around her heart, air in her abdomen and liver area, and multiple rib fractures in various stages of healing. The petitioner's expert determined that the cause of death was multiple trauma due to child abuse. The case was filed against the mother and her paramour for the surviving sibling. The case as to the paramour resolved after he submitted to the jurisdiction of the court pursuant to F.C.A. §1051(a) and consented to a finding of abuse. The matter proceeded to trial as to the respondent mother only. The Family Court entered a finding of abuse based on a "res ipsa" analysis under F.C.A. §1046 (a)(ii) since the child sustained inflicted injuries that led to the child's death, while in the care of the mother. However, the Family Court declined to enter a severe abuse finding by clear and convincing evidence because the child was in the care of both the mother and her paramour during the relevant time period and the evidence did not show who committed the act of child abuse.Matter of Amirah L., 952 N.Y.S.2d 397 (Family Court Queens County 2012), reversed, Matter of Amirah L., 118 AD3d 792 (2nd Dep't 2014).

The Second Department reversed the trial court and found that the respondent mother's actions constituted a depraved indifference to human life by clear and convincing evidence. The appellate court found it significant that the mother's medical expert opined that on two separate occasions prior to the child's death, significant force was intentionally applied to cause rib fractures and a jaw fracture and the child would have experienced pain and inability to chew. Despite this, the respondent mother delayed in seeking medical attention for the child for two hours by choosing to take a taxicab to a hospital in Manhattan, bypassing several closer hospitals to her home in Queens. The mother testified at trial that she decided to take a taxi to Mt. Sinai Hospital because that was the hospital where a pediatrician last saw the children. Matter of Amirah L., 952 N.Y.S.2d at 408. She further told the Court that she did not want to go to Elmhurst Hospital because her paramour had a bad experience at that hospital. Id. The respondent's intentions for doing this were not relevant to the Second Department's analysis of severe abuse. The Second Department also noted that the mother provided false information about the circumstances of the child's injuries to hospital personnel who were trying to save the child's life. Most notably, the Court explained that even if they were to accept the mother's explanation that she did not inflict or witness the infliction of the child's injuries, and that it was [*13]the paramour who inflicted the injuries, the Court still found that the mother's reckless conduct, under the circumstances, evinced a depraved indifference to the child's life. 118 AD3d at 794.

In Matter of Vivienne Bobbi-Hadiya S., 126 AD3d 545 (1st Dep't 2015), the Appellate Division, First Department, affirmed the Family Court's finding that both the respondent mother and respondent father severely abused their three-month-old infant. The evidence in that case established that the infant suffered four fractured ribs, a fractured collarbone, a fractured femur, and subdural hematomas as a result of being squeezed, shaken and possibly thrown. The Court found that the father caused the child's injuries under circumstances evincing a depraved indifference to human life, and that the mother recklessly allowed such injuries to be inflicted under circumstances evincing a depraved indifference to human life. The Court reasoned that the father had a prior manslaughter conviction for recklessly killing his two month old son under similar circumstances. The mother knew of the father's manslaughter conviction but left the child in his care and used him as a primary caretaker while she worked. The First Department found that the mother acted recklessly by leaving the child in the father's care and allowing the abuse to be inflicted. The Court further reasoned that the Family Court properly based its findings on indirect evidence, and the parent's inability to explain the child's injuries. Id.

In the instant case, the Court does not base the finding of severe abuse solely on the mother's statement that she "tossed" Jayden on to her wooden couch. The medical examiner unequivocally testified that Jayden's injuries were the result of at least two separate incidents of blunt force trauma inflicted on the child. The mother's act of "tossing" Jayden on the couch on February 2, 2014 does not account for all of Jayden's injuries, particularly the massive amount of fresh blood that was discovered in Jayden's abdomen that Dr. Scordi-Bello attributed to an "acute" event. Based on the characteristics of the blood, Dr. Scordi-Bello rejected the theory that this could have been one initial injury that bled slowly over the course of a number of days. After reviewing the mother's videotaped statement in conjunction with the testimony of the medical examiner, it is this Court's view that the mother minimized her actions towards Jayden, that her account of the events from the evening of February 2nd to the morning of February 6th was self-serving, and that there is information that she omitted from her statement to the assistant district attorney.

The mother's account of events minimizes the amount of force that she used in "tossing" the child. The mother's demonstration of how she "tossed" Jayden once, contained in the videotaped statement, displaying outstretched hands setting the child down, is contradicted by the medical examiner's testimony of the significant force that was used to cause Jayden to sustain multiple internal injuries. After the mother "tossed" Jayden on the evening of Sunday, February 2nd, she watched Jayden get progressively sicker and sicker over the course of four days, and then delayed in seeking medical treatment for her child until it was too late. Dr. Scordi-Bello testified to a reasonable degree of medical certainty that Jayden's mesenteric lacerations could have been repaired if he received prompt medical attention. Jayden was not eating, was continuously vomiting and having "a lot of diarrhea" and fever for multiple days and the mother did not take the child to a doctor, did not call a pediatrician, did not call the prior foster mother Ms. G., and did not call 911 until well into Thursday morning, when Jayden had deteriorated to the point that he could not event sit up or stand and was "tilting over." When she finally called 911, and the child was taken to the hospital, she made no mention to EMS, medical personnel at Coney Island [*14]Hospital, or medical personnel at Maimonides that she had "tossed" her two-year-old son on to a wooden couch. She was the only one who possessed that information and she did not provide it to those who were trying to save her son's life. Even if the child's internal injuries were not visible to a lay person, and not discernible to medical personnel until radiological imaging was performed, the child's medical care during those crucial hours would have been different if the mother had relayed the truth and communicated with the doctors that she had "tossed" the child on to a wooden couch. Based on Dr. Scordi-Bello's experience from other trauma cases and past autopsies, it was the doctor's expert opinion that given Jayden's presentation, including low blood pressure, low heart rate, vomiting, fever, and lethargy, had any history of trauma been disclosed to hospital personnel, Jayden would have been taken to the operating room immediately for surgical intervention. In the course of repairing the mesenteric lacerations, the injury to the small bowel would have been seen and either repaired or removed.

The respondent mother argues that the Court should also consider the evidence that the mother is a loving and caring parent in determining whether the petitioner has established that the mother severely abused Jadyen by clear and convincing evidence. In support of this argument, the respondent mother cites to a number of cases that involve facts completely distinguishable from the case at hand. For example, In Matter of Tyler S., 103 AD3d 731 (2nd Dep't 2013), the Family Court's finding of abuse was reversed as the Second Department found that the petitioner's prima facie case of abuse was successfully rebutted by the respondent's expert witness, a board-certified diagnostic pediatric radiologist who testified that the child's subdural hematoma and orbital fracture was consistent with accidental trauma as described by the mother. In Matter of Julia BB., 42 AD3d 208 (3rd Dep't 2007), the Third Department concluded that the agency failed to prove severe abuse by clear and convincing evidence. The child at issue in that case had injuries including fractures of the ribs, forearm and tibia. The Julia BB. court rejected the testimony of the petitioner's experts, finding that one expert had limited training or experience and that the other expert witness had "personal animus" towards the respondent and had "engaged in a crusade to deprive respondents of their children." Id. at 221. The Court further noted that the respondents presented the testimony of expert witnesses who concluded that the child suffered from a variant of Osteogenesis Imperfecta and was not the victim of child abuse. Id.

In Matter of Brandyn P., 278 AD2d 533 (3rd Dep't 2000), the Third Department affirmed the Family Court's dismissal of the abuse petition. Brandyn P. involved a child who suffered a spiral fracture of his right tibia while under the care his father. The father claimed that the child's leg got caught in a couch. An orthopedic surgeon testified during the trial and concluded that the fracture was highly suspicious for potential abuse, but he did acknowledge that if the child's foot was trapped and twisted, it was possible for enough force to be exerted on the leg to cause a spiral fracture. The Family Court found that the petitioner established a prima facie case of abuse but dismissed the petition at the close of all the proof after accepting the respondent's explanation that the child's injury occurred accidentally. In that case, the respondent father as well as five other family members who were present in the home when the child was injured, testified to support that the child sustained an accident. Id.

In the instant case, the respondent mother presented no expert testimony and no factual witnesses to support her theory that Jayden's injuries were accidental. Moreover, the respondent [*15]mother's argument that a severe abuse finding cannot lie in this case because there was another individual in the house during the relevant time period was clearly rejected by the Amirah L. Court. The Second Department is clear that the parent does not even have to be the one who commits the serious physical injury to be held responsible for severely abusing the child.

Finally, the Family Court is entitled to draw the strongest negative inference from the respondent mother's failure to testify. Matter of Alanah M., 96 AD3d 757 (2nd Dep't 2012); Matter of Sanaia L., 75 AD3d 554 (2nd Dep't 2010); Matter of Amanda Ann B., 38 AD3d 537 (2nd Dep't 2007); Nassau County Dept. of Social Servs. v. Denise J., 87 NY2d 73 (1995). A negative inference drawn from the respondent's failure to testify does not violate the respondent's Fifth Amendment rights in a concurrent criminal case. Matter of Leah M., 81 AD3d 434 (1st Dep't 2011); Matter of Nicole H., 12 AD3d 182 (1st Dep't 2004).

Based on the record before the Court, the Court finds that the respondent mother acted recklessly, under circumstances evincing a depraved indifference to Jayden's life, and thereby caused Jayden's death. Accordingly, the Court finds by clear and convincing evidence that the respondent mother severely abused Jayden within the meaning of Social Services Law §384-b(8)(a)(i).

The record further supports a finding of neglect against the respondent mother based on failure to provide adequate medical care pursuant to F.C.A. §1012(f)(i)(A). To establish neglect, the petitioner must demonstrate by a preponderance of the evidence that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and that the harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. Nicholson v. Scoppetta, 3 NY3d 357 (2004). Furthermore, parental behavior must be evaluated objectively and a court must consider how a reasonably prudent parent would have acted under similar circumstances. Id. at 370. The Second Department has held that failure to seek timely medical attention can constitute medical neglect. See Matter of Richard S., 130 AD3d 630 (2nd Dep't 2015). The Court's focus must be on whether the parent has provided an acceptable course of medical treatment for their child in light of all surrounding circumstances. Id. In the instant case, the mother clearly failed to act as a reasonably prudent parent. The respondent mother indicated in her video taped statement and to the ACS caseworker that she did not seek any medical attention for Jayden until approximately 4:00am on Thursday, February 6, 2014. The mother stated that she first noticed symptoms on Monday, February 3, 2014 and that these symptoms "escalated." Jayden had a high fever, was vomiting all food and liquids and having diarrhea, and she failed to even call the pediatrician or Ms. G. As the Court has already noted, the mother did not call 911 until Jayden was having difficulty breathing and was not able to sit up without "tilting over." Dr. Scordi-Bello indicated that Jayden's injuries could have been surgically repaired if she had sought medical treatment sooner.

Derivative Findings Against the Mother as to Jada

The Court finds that a derivative finding as to the surviving sibling Jada is warranted on all petition counts. 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 [*16]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, 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 Jada was Jayden's twin sister and she was a vulnerable two-year-old child at the time of Jayden's death. Based on the evidence that Jayden sustained fatal internal injuries that were the result of blunt force trauma to the abdomen, and the respondent mother was responsible for inflicting these injuries, the Court finds that the respondent has such a fundamental defect in her understanding of parenting duties that it creates a substantial risk of harm to any other child in her care. See Matter of Daniel W., 37 AD3d 842 (2nd Dep't 2007) (derivative abuse finding upheld given nature of direct abuse, its duration and the circumstances of its commission); Matter of Marino S., 100 NY2d 361 (2003) (sustaining derivative finding of severe abuse; noting that Family Court properly construed the Social Services Law to permit a finding of severe abuse as to the sibling). Accordingly, derivative findings of severe abuse, abuse and medical neglect are entered as to the surviving sibling Jada.

Person Legally Responsible Mr. Avrum M.

With regards to Mr. M., as a threshold matter, the petitioner has established by a preponderance of the evidence that Mr. M. is a person legally responsible within the meaning of F.C.A. §1012(g). The Court of Appeals has held that the determination of who is a person legally responsible is a discretionary, fact intensive inquiry which varies according to the particular circumstances of each case. Matter of Trenasia J., 25 NY3d 1001 (2015); Matter of Yolanda D., 88 NY2d 790 (1996). The non-exhaustive factors to be considered include the frequency and nature of the contact; the nature and extent of the control exercised by the respondent over the child's environment; the duration of the respondent's contact with the child, and the respondent's relationship to the child's parent. Matter of Yolanda D., 88 NY2d at 796.

The credible testimony of Mr. Maharaj established that Mr. M. spent one to three nights per week at the home of the children and that he would visit every day. Mr. M. told Mr. Maharaj that the children called him "daddy" and he took part in disciplining the children. Furthermore, from February 2, 2014 to February 6, 2014, he left work and spent those nights at the mother's home. On February 6th, when the respondent mother went to the hospital with Jayden, Mr. M. stayed home to watch Jada. Given that Mr. M. is a person legally responsible for the children, he had an obligation to act as a reasonably prudent parent or caretaker under similar circumstances. It was not reasonable for Mr. M., who had daily contact with the children, to have sought no medical attention for Jayden over the course of four days as the child got sicker and sicker to the point where he could not stand or sit up. See Matter of Richard S., supra. Dr. Scordi-Bello testified that Jayden's symptoms would have deteriorated between February 2nd and February 6th and that Jayden could have survived his injuries if he had prompt medical attention. Mr. M.'s conduct clearly contributed to the neglect of Jayden. Furthermore, this court draws the strongest negative inference from Mr. M.'s failure to testify at the fact finding hearing. See Matter of Alanah M., 96 AD3d 757 (2nd Dep't 2012); Matter of Sanaia L., 75 AD3d 554 (2nd Dep't 2010); Matter of Amanda Ann B., 38 AD3d 537 (2nd Dep't 2007); Nassau County Dept. of Social Servs. [*17]v. Denise J., 87 NY2d 73 (1995). Accordingly, a finding of neglect against Mr. M. as to the child Jayden is supported by the record before the Court. Furthermore, a finding of derivative neglect is warranted as to Jada as Mr. M.'s actions demonstrated an impaired level of judgment that creates a substantial risk of harm to any child in his care. See Matter of Daniel W., supra.

Conclusion

Based on all the evidence presented, the Court finds that the petitioner has established by clear and convincing evidence that the respondent mother severely abused Jayden as defined under Social Services Law §384-b(8)(a)(i). Furthermore, the petitioner has established by a preponderance of the evidence that the respondent mother abused and neglected Jayden as defined under F.C.A. §1012. Accordingly, derivative findings of severe abuse, abuse and medical neglect will be entered against the mother as to the surviving sibling, Jada. The petitioner has also established by a preponderance of the evidence that Mr. M. neglected Jayden. Accordingly, a derivative finding of medical neglect will be entered against Mr. M. as to Jada.

DATED: November 24, 2015

__________________________________

Hon. Lillian Wan Footnotes

Footnote 1:F.C.A. §1022 provides that the Family Court may enter an order directing the temporary removal of a child before the filing of an Article 10 petition if (A) the parent or person legally responsible is absent or, though present was asked and refused to consent to the temporary removal of the child and was informed of an intent to apply for a removal; and (B) the child appears to suffer from abuse or neglect, that removal is necessary to avoid imminent danger to the child's life or health; and (C) there is not enough time to file an Article 10 petition and hold a preliminary hearing under F.C.A. §1027.

Footnote 2:Counsel for the respondent mother asked the court to take judicial notice of the prior ACD order and any subsequent order of dismissal. The Court took judicial notice of all orders on the prior Article 10 case.

Footnote 3:At the time the ACD order was issued, the respondent mother was herself voluntarily placed into foster care pursuant to Docket L29657/11.

Footnote 4:A photograph of the couch was not introduced into evidence.