Matter of Heaven (K.C.)

[*1] Matter of Heaven (K.C.) 2013 NY Slip Op 50141(U) Decided on January 18, 2013 Family Court, Bronx County Sherman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2013
Family Court, Bronx County

In the Matter of Heaven A Child Under Eighteen Years Alleged to be Abused by K.C., Respondent.



NA-XXXXX-11



Michael Cardozo, Corporation Counsel of the City of New York, by Alan W. Sputz, Special Assistant Corporation Counsel, Administration for Children's Services, Bronx, New York (Liza Camellerie, Esq., of counsel) for Petitioner. Telephone: (718) 590-5438.

Indji Bessim, Esq., Attorney for the Child, 930 Grand Concourse, Suite 1B, Bronx, New York 10451. Telephone: (718) 410-7774.

The Bronx Defenders - Family Defense Practice (Scott Constantine, Esq. of counsel), for Respondent Mother. Telephone (718) 838-7878.

Carol R. Sherman, J.

On June 20, 2011, the Administration for Children's Services (ACS) filed a petition against K. C. (Respondent Mother) alleging that she derivatively severely abused the subject child Heaven by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child's five-year-old sibling Jamar resulting in his death (see Family Court Act § 1012 [j]; Social Services Law § 384-b 8 [a] [i]; [*2]Penal Law §10.00 [10]). The petition alleged that:

"HEAVEN (AGE 2) under the age of eighteen whose parent,K. C., subjected the child to reckless or intentional actscommitted under circumstances evincing a depravedindifference to human life, which resulted in seriousphysical injury to the child JAMAR as defined in subdivisionten of section 10.00 of the penal law in that:

1. On or about June 17, 2011 at approximately 7:57 pm,HEAVEN'S sibling, JAMAR (aged 5), was pronounced dead.

a. According to Dr. Kappen, Bronx Medical Examiner, anautopsy was performed upon the sibling child JAMAR. Thecause of death for JAMAR was found to be homicide by bluntimpact trauma.

b. According to Dr. Esther Pottoore, Emergency Room Physician

Supervisor at Montefiore Hospital in Bronx, NY, on or about June

17, 2011, the sibling child JAMAR was observed to have an abrasionto his left cheek, a small circular legion (sic) on the left side of thestomach area, a mark on his lower back resembling the shape

of a safety pin, scattered bruises to the child's lower back, several

contusions on both shins, a singular contusion on left thigh, scattered

bruises on JAMARs (sic)left arm.

c. According to the respondent mother, K.C., on or about

about June 16, 2011, the child JAMAR showed signs of weakness

and vomiting. The mother did not take the child for medicaltreatment. The mother stated that after the child JAMAR took a naphe was unresponsive. The mother stated that she then called 911.

d. According to New York City Police Detective Casey, the

respondent mother stated that she hit JAMAR approximately 4 times

on or about June 13, 2011. The respondent mother stated that she

hit JAMAR twice on the back and twice on the stomach because he

broke the television while playing with a Wii Video Game System.

The mother stated that this was the hardest she had ever hit JAMAR.

Detective Casey stated that the respondent mother stated that on June

16, 2011 in the late afternoon, JAMAR began vomiting and continued

to vomit throughout the night. The mother stated that she did not seek

medical attention at this time. The mother stated that on Friday, June

17, 2011, JAMAR slept on and off throughout the day and at one point

told the respondent mother that he felt weak. The respondent mother

did not seek medical attention at this time. The mother stated that while [*3]

JAMAR was sleeping, she felt his hand and it was cold. The mother

states that she attempted to wake JAMAR but he was unresponsive.

The mother stated that she then called 911 and with the direction of

the 911 operator, attempted CPR.

As a result of the above described severe abuse of the child JAMAR,the subject child HEAVEN is derivatively severely abused."

On June 20, 2011, the court remanded the child Heaven to the care and custody of ACS. She was placed in foster care with her paternal great aunt with whom she has remained.

The fact-finding hearing commenced on November 29, 2011 and continued on December 2, 2011, December 9, 2011, December 13, 2011, March 15, 2012, March 20, 2012, March 21, 2012, April 13, 2012, and July 9, 2012. ACS called as witnesses:

Carolyn Kappen, M.D. - New York City Office of the Chief Medical Examiner,

deemed an expert in forensic pathology.

Linda Cahill, M.D.- Director of the Montefiore Medical Center ChildAdvocacy Center, deemed an expert in pediatricmedicine with a specialty in child abuse.

Joshua Gradinger, Esq. - Assistant District Attorney, Office of the Bronx

County District Attorney.

Neither Respondent Mother nor the Attorney for the Child called any witnesses.

The court admitted into evidence the following:

Petitioner's Exhibit 1 - Duly certified and delegated

Autopsy Report of Jamar, New York City Office of theChief Medical Examiner dated June 18, 2011.

Petitioner's Exhibit 2 - Curriculum Vitae of Carolyn Kappen, M.D.

Petitioner's Exhibits 3-12 and 19-29 - Autopsy photographs of Jamar,

from the New York City Office of the Chief Medical Examiner.

Petitioner's Exhibit 13 - Videotaped statement of Respondent

Mother K. C. recorded on June 18, 2011 at the New York CityYork City Police Department 47th Precinct.

Petitioner's Exhibits 14-18 - Written statements signed byRespondent Mother taken by the New York City PoliceDepartment on June 18, 2011 at 15:50 hours, 17:00 hours,19:05 hours, 20.00 hours and a non-dated, non-Mirandized

statement.

Petitioner's Exhibit 30 - Curriculum Vitae of Linda Cahill, M.D.

Neither Respondent Mother nor the Attorney for the Child offered any documents for admission [*4]into evidence. All counsel submitted written summations to the court.

ACS Case

Dr. Carolyn Kappen and Autopsy Report of Jamar

Dr. Kappen testified that she had been with the New York City Medical Examiner's Office for fourteen years. On June 18, 2011, she performed an autopsy on the child Jamar, five years old. Dr. Kappen did an external and an internal examination of the child's body. The child's body was sent to her office directly from the hospital. She received a two page report prepared by the investigator in her office. Dr. Kappen also spoke with Respondent Mother.

Dr. Kappen found the cause of death of Jamar to be "blunt impact of torso with visceral injuries and peritonitis" and the manner of death to be "homicide (beaten by others)." The autopsy report stated:

"1. BLUNT IMPACT OF TORSO: A ¾" purple contusion is near

the right costal margin. Two ¼" purple contusions are at the left

costal margin. A 1" x ¼ intramuscular hemorrhage is on the right

costal margin.

A 1" contusion with corresponding intramuscular hemorrhage is at

the left suprascapular region. There are approximately ten ½" to 1"

pink purple contusions on the lower lumbar region. A 1" patterned

curved abrasion is on the left paralumbar region. A ½" and ¾" purple

contusion is on the lateral right posterior torso. A 1" pink purple

contusion is on the lower aspect of the right side of the buttock. A ½"

pink purple contusion is on the lower left buttock.

Approximately 550 cc of brown turbid and purulent material is in

the abdominal cavity. There are areas of brown purulent materials

adherent to loops of small and large intestine. There are multiple

areas of yellow green fibrinous material adherent to the small and

large intestine, omentum and stomach. There is a 1" hemorrhage

on the inferior aspect of the greater curvature of the stomach. A 2"

hemorrhage is over the anterior and inferior aspect of the pancreas,

the most proximal portion of the small intestine has a 5/8" laceration

with 1 " surrounding hemorrhage. The contents of the small

intestine are leaking from the laceration. Approximately 4" distally

from the laceration is a 1¼" group of approximately ¼" - ½"

contusions of the serosa of the small intestine.

2. BLUNT IMPACT OF EXTREMITIES: A ¼" purplecontusion is on the right arm, a ¾" contusion is on the rightarm with subcutaneous hemorrhage. Two ½" pink contusions

are on the dorsal aspect of the right wrist. [*5]

Three ¼" and five ½" contusions, some with subcutaneous

hemorrhage, are on the left elbow. A ¾" contusion is on the dorsal

aspect of the left forearm. A ¼" pink contusion is on the dorsal aspect

of the left wrist. A ½" purple-pink contusion is over the knuckle of

the index finger of the left hand.

A ½" pink contusion is below the right knee. A ½" purple contusion

is on the right shin. A 1" x 1" curved, pink-red abrasion is on the

posterior right thigh. Four ¼" contusions are above the posterior

aspect of the right knee.

A 1" x ¼" patterned abrasion is on the superior and posterior

aspect of the left leg. A ¾" purple contusion with corresponding

subcutaneous tissue hemorrhage and intramuscular hemorrhage is

on the posterolateral aspect of the left thigh.

3. BLUNT IMPACT OF HEAD: A ½" oval open abrasion

surrounded by ¾" pink abrasion is on the left cheek. A 3/8"

abrasion is on the upper lip. Four abrasions are on the lower lip;

two on the left side and two on the corner of the right side of the

mouth.

A ¼" abrasion is below the left ear and a 1-½" area of multiple

small abrasions is on the posterior and left side of the scalp in the

hair."

Dr. Kappen testified that Jamar had over 30 contusions throughout his body. He had eight internal hemorrhages in the distal portion of the intestine including the bowel, which was lacerated, the kidney, pancreas and stomach. These hemorrhages were caused by blunt impact injury. There was a laceration to his small intestine caused by a forceful and fatal blow. The laceration caused a hemorrhage in the intestine and the contents of the intestine, including green/yellow turbid purulent fecal fluid and pus, spilled into the abdominal cavity resulting in the inflamation and peritonitis that caused the child's death. Dr. Kappen testified that peritonitis is an inflamation of the lining of the abdominal cavity and it is "not compatible with life." Dr. Kappen testified that the internal contusions, lacerations and hemorrhages were caused by multiple forceful blows inflicted to the lower abdomen and back of the child causing blunt impact trauma to the organs. Dr. Kappen testified to a reasonable degree of medical certainty that each contusion, laceration and hemorrhage was caused by a corresponding separate direct forceful blow such as a punch or kick from an adult, not from a child. None of these injuries could have been caused by Jamar having fallen down in the playground or by a mere slap of the

hand.

Dr. Kappen stated she was aware of Respondent Mother's statement that she hit Jamar on Monday, June 13, 2011 and her claim that he had no symptoms until his death on Friday, June [*6]17, 2011. Dr. Kappen testified that at the time she performed the autopsy, the peritonitis was advanced and had been developing from one to three days. The injuries would have been inflicted four to five days prior to the child's death. Dr. Kappen testified that Jamar would have been in extreme pain from the time of the blow or blows that caused the laceration to his intestine to the time of his death. He would have been vomiting and dehydrated. Dr. Kappen testified, to a reasonable degree of medical certainty, that Respondent Mother's statement that Jamar did not experience pain for four days was incredible and that he would have been in immediate and continuous severe pain.

Dr. Kappen testified to her observations of over 30 external injuries, scars, and abrasions on the child's body. She stated there were multiple recent and old injuries and they were not in places one would expect them to be in an "active child." Many were large and many were patterned. Jamar had an abrasion surrounded by a contusion on the left side of his face. He had a contusion on his abdomen that was purplish-pink and acute that had occurred from a few hours to a few days before his death. Jamar exhibited contusions on his left side near his ribs, on his left arm and left elbow, on his left leg near his knee, on his lower abdomen and on his wrist. He had multiple contusions and abrasions on his lower back near the lumbar spine. The child had multiple scars including a large, unusual scar on his thigh and a pattern scar near his buttocks. He had scars on his neck, his right torso and his right arm. He had four linear scars on his posterior left side.

On June 18, 2011, Respondent Mother telephoned Dr. Kappen. Dr. Kappen questioned Respondent Mother about the large number of recent injuries and scars she found on Jamar's body. Respondent Mother responded that Jamar was an "active child" and he had fallen in the park the previous Tuesday which caused the injury to his cheek. Dr. Kappen testified that the Respondent Mother's explanation for the injury to the child's cheek was inconsistent with the injury. The injury was a deep abrasion in a soft, recessed area and not a scrape, and therefore, was unlikely to have been caused by a child's fall. Dr. Kappen testified that in her medical opinion the multiple scars and contusions on Jamar's body were significant based on their excessively large number and that many were in places on the body that were unlikely to be the result of an "active" child's falling in play. Further, many of the contusions were pink and purple in color and therefore were recently inflicted from a few hours to a few days before the child's death.

Assistant District Attorney Joshua Gradinger

Assistant District Attorney (ADA) Joshua Gradinger testified on December 2, 2011. He testified that on June 18, 2011 he was notified that a five-year-old child had died and an individual was in custody in the 47th Police Precinct in the Bronx. He identified Respondent Mother K. C. as the individual he interviewed at about 10:30 pm on June 18, 2011. He said that he informed Respondent Mother of her "Miranda" rights and interviewed Respondent Mother in the presence of a NYPD Detective. Respondent Mother's statement was videotaped. ADA Gradinger testified that no one threatened Respondent Mother and no one made her any promises. He authenticated the videotape as a complete, true and accurate recording of the statements made by Respondent Mother in his presence on June 18, 2011 and pointed to his [*7]initials and the date on the tape. The videotape recording was admitted into evidence without objection and played for the court on the record.

Videotaped Statements and Written Statements of Respondent Mother

On June 18, 2011 at about 10:30 PM, in the videotaped statement recorded at the 47th Police Precinct in the Bronx, Respondent Mother waived each and every one of her rights pursuant to Miranda v. Arizona, 384 US 436 (1966). She said she lived at 634 East 227th Street, Apt 2E, Bronx, New York. She stated that on Monday, June 13, 2011, at that location at about 12:00 Noon, her son Jamar was playing a video game on the televison and he broke the television with the remote control device. Respondent Mother said she became upset and hit Jamar with an open hand two times in his stomach and two times in his back. Respondent Mother said Jamar tried to run from her. She said he would not stand still and she held him by his arm. She said she hit him hard with the palm of her hand on his lower back and on his belly. She said she was aiming for his buttocks. Respondent Mother stated she then told Jamar to lay down on his bed and that she was sorry. She said the child Heaven was present in the home at the time she hit Jamar.

Respondent Mother said that Jamar stayed in his room and did not complain. He seemed "normal." Respondent Mother said that later that day she rode the bus with Jamar and Heaven to the home of the maternal grandmother and then returned to her home. She said Jamar went to bed that night without complaining.

Respondent Mother said that on Tuesday, June 14, 2011, she saw the bruises on Jamar's lower back and stomach but he seemed "normal" and he did not complain. Respondent Mother said that on Wednesday, June 15, 2011, Jamar's behavior continued to be normal and he still did not complain of any pain.

Respondent Mother stated that on Thursday, June 16, 2011, Jamar complained once or twice that his stomach hurt and he vomited two or three times but he did not complain of pain. Respondent Mother said she thought he had a stomach virus and she gave him ginger ale, lemon juice and Pepto Bismal. Jamar did not eat or drink and vomited again. He went to sleep, but he got up two to three times during the night and vomited. Respondent Mother said she did not think Jamar was seriously ill. She did not call 911 and did not seek any medical treatment for the child.

According to Respondent Mother's videotaped statement, Jamar woke up the morning of Friday, June 17, 2011 and although he was still vomiting, he seemed "fine." He walked around the apartment and then lay down. Respondent Mother gave him ginger ale and some bread and then Pepto Bismal. According to Respondent Mother, Jamar said his stomach hurt but did not say he was in pain. He told Respondent Mother he felt weak and lay down on his bed to sleep. Respondent Mother said Jamar did not wake up, did not respond to her and his hand was cold. She said she called an ambulance and tried to administer CPR. Respondent Mother went to the hospital with Jamar and was told that he had died. She went to the police precinct and to the Medical Examiner's office to identify the body.

Respondent Mother executed several written statements at the police station. ADA Gradinger authenticated each of Respondent's statements and testified that each statement was a fair and accurate representation of the written statement that Respondent Mother authenticated [*8]for him on June 18, 2011. The statements were admitted into evidence. On June 18, 2011, the first statement was taken at 3:50 PM (Petitioner's Exhibit 14). Prior to signing the statement, Respondent Mother avowed that she had been read and waived her rights pursuant to Miranda v Arizona, 384 US 436 (1966). In the first statement, Respondent Mother said that on Monday she had home schooled Jamar, played a video game and went to the home of the maternal grandmother. Respondent Mother said that on Tuesday she took Jamar to the park and he fell and hurt his face. She home schooled Jamar on Wednesday and Thursday. He vomited on Thursday night. On Friday he lay in bed, and she gave him fluids and Pepto Bismal. Jamar became unresponsive, and Respondent Mother called 911. In the videotape, Respondent Mother stated that when she wrote her first statement she had not included hitting Jamar because she was afraid.

Respondent Mother authenticated a second written statement that was taken on June 18, 2011 at 5:00 PM (Petitioner's Exhibit 15). In that statement, she admitted she hit Jamar on his lower back with an open hand four times. She said she tried to hit his butt but Jamar was moving around. Respondent Mother stated she did not admit hitting Jamar in the stomach in her second statement because she was afraid. Respondent Mother authenticated a third written statement taken at 7:05 PM on June 18, 2011 (Petitioner's Exhibit 16). She said Jamar broke the television. She admitted that she hit Jamar on his lower back four separate times with a open hand. Respondent Mother authenticated the fourth written statement, which was taken at10:00 PM on June 18, 2011 (Petitioner's Exhibit 17). She wrote that Jamar broke the television. For the first time, she wrote that she accidentally hit Jamar in the stomach, saying she hit him one time in the stomach and three times in the back. When asked by ADA Gradinger in the videotape about the discrepancies between her written statements and the videotaped statement as to how many times she hit Jamar in the stomach, Respondent Mother said she hit him twice in the stomach and twice in the back. Respondent Mother also made a non-Mirandarized written statement which she gave when she first arrived at the precinct on June 18, 2011 (Petitioner's Exhibit 18). She did not write anything about hitting Jamar. She said he began vomiting Thursday night and she gave him fluids. Respondent Mother said Jamar was in bed most of Friday. He lay down and then was unresponsive. She called 911 and tried to administer CPR.

In the videotaped statement recorded at 10:30 PM on June 18, 2011, Respondent Mother said she wanted to make a videotaped statement and admitted she had at first not been truthful with the police because she was afraid. She said she did not mean to hit Jamar in his stomach and back. She said she did not think his condition was severe and she would have sought medical attention if she knew he was so sick. Respondent Mother said she had not thought her hitting Jamar was related to his illness or caused any serious injury.

Dr. Linda Cahill

Dr. Cahill testified that on June 7, 2011, she was notified that a child had been brought to the Emergency Room at Montefiore North, and that he was dead when he arrived and had bruises on his body. Dr. Cahill did not personally examine Jamar. She reviewed the Montefiore Medical Center records and the Medical Examiner's records and report and the photographs taken at the autopsy. The Medical Examiner's records and report included findings of old and recent bruises on the child's back, chest, face and extremities, a ruptured intestine, injuries to the kidneys, a hematoma on the pancreas and infection in the abdomen, lung and the blood. The final diagnosis [*9]for Jamar's cause of death was intestinal laceration with peritonitis. Dr. Cahill testified that Jamar had a laceration to the duodenum of the intestine that is usually caused by blunt impact with significant force to the abdomen. She opined that it would be the equivalent of a five-year-old child crashing his bicycle into a tree and impaling his stomach on the handlebars. Dr. Cahill stated that Jamar would have been in immediate pain from the time of the impact.

It was Dr. Cahill's opinion to a reasonable degree of medical certainty that Respondent Mother's slapping Jamar with an open hand two times in the front of his body and two times on his back was insufficient force to cause a rupture of the duodenum (small intestine). Further he had hematomas of the pancreas, kidneys, bowel and stomach. These injuries to Jamar would require severe punches and/or kicks to those areas of his body. Dr. Cahill explained that if hit with great force the duodenum of the intestine could hit the spine and then split apart.

Dr. Cahill testified that the autopsy found peritonitis. She described peritonitis as an infection of the lining of the abdomen caused by the rupture of the gastro-intestinal tract and the spilling of bacteria and germs into the abdomen. A child suffering from peritonitis would find any physical activity difficult. The child would exhibit malaise, fever and lethargy and would be vomiting. He would be in severe pain when he had to move. Respondent Mother's statement that Jamar went to the park on Tuesday and ran and played was incredible.

Dr. Cahill testified that the lab results from Jamar indicated that the bacterial infection from Jamar's gastro-intestinal tract had spread to his lungs through the blood stream. The blood showed overwhelming infection. She testified that it takes usually twenty-four to forty-eight hours for the bacteria to build up and overwhelm the abdominal cavity. The body cannot fight it anymore and then it is carried by the blood to other organs such as the lungs. Dr. Cahill opined to a reasonable degree of medical certainty that Respondent Mother's statement that she hit Jamar on Monday, June 13, 2011 at noon and that he did not show any symptoms until Friday, June 17 at 5:00 PM - 6:00 PM was incredible. Jamar would feel worse and worse as the days went on and probably develop a fever. He would have exhibited worsening symptoms every day from June 13 to June 17. Over the five days, he would have deteriorated, vomited, become dehydrated and eat and drink less and less. The inflamation of his intestine and abdomen would be extremely painful and he would have complained of pain. His condition would progressively decline and he would never recover without medical attention.

Dr. Cahill described the difference in the symptoms between a stomach virus and peritonitis. She stated that a stomach virus in a five-year-old usually lasts twenty-four hours and might involve a few hours of vomiting and diarrhea. However, it is not severe and after six hours a child would begin to feel better. In contrast, peritonitis has a progressive downhill course and the patient does not recover if it is untreated. The abdominal muscles spasm and the abdomen becomes hard. Any movement would be extremely painful. Within twenty-four to forty-eight hours, the patient would not be able to walk. Unlike a stomach virus, the vomit would include stomach content. The child would be extremely sick, run a high fever and be in great pain.

Dr. Cahill testified to a reasonable degree of medical certainty that if Jamar had received medical attention at any point after he was injured on Monday, June 13 to Thursday June 16,

he could have been appropriately treated and was likely to have survived. A lacerated gastro-intestinal tract would require an operation in which the laceration would be sewn up, dying tissues removed and the healthy ends reattached. If he had been taken to the hospital, he would [*10]have been given large quantities of antibiotics and necessary treatment. However, as the days went on, Jamar's possibility of survival decreased. Prior to Jamar's death, Respondent Mother did not arrange for any medical treatment for Jamar whatsoever. However, as the days went on, Jamar's possibility of survival decreased. Thus he had no chance of survival.

Further, Dr. Cahill found the numerous bruises, marks and scars on Jamar's body to beindicative of inflicted injuries. Based on the post-mortem photographs of Jamar's body,

Dr. Cahill testified that the injuries on the left side of the body and on the upper part of the hipbone and on his left cheek were similar. Dr. Cahill testified that these injuries resembled the imprint of a disposable cigarette lighter - either placed hot on the skin or stamped in a branding way on the skin (Petitioner's Exhibits 4 and 21). Dr. Cahill also observed a scar which was a pattern injury of four hypo-pigmented lines on the child's left thigh between the left buttocks and left knee. She opined that this could have been caused by a hot fork held against the child's skin in a branding manner (Petitioner's Exhibit 22). Dr. Cahill testified these three injuries were inflicted. She also testified that patterned injuries on the child's torso, back, abdomen, arms and legs were healed or in a healing state and were inflicted over a period of time. These injuries were marks on the skin in the shape of the object that struck the child. For example, there was a loop mark on the child's upper right side under the right arm and on his back that would indicate that Jamar was hit with a looped object such as a cord or belt buckle (Petitioner's Exhibits 10 and 20). Dr. Cahill testified about the abrasions on the child's upper and lower lips (Petitioner's Exhibits 11a and 11b) which she believed were likely to be inflicted injuries as a result of a punch to the child's mouth or his being forcefully pushed to the ground face forward. Dr. Cahill testified that the large numbers of marks on the child's skin, both fresh, partly healed and healed were strongly suggestive of a pattern of inflicted injuries and child abuse that is separate from and in addition to the fatal injuries inflicted by Respondent Mother on this child.

Dr. Cahill concluded that Jamar was an abused child and suffered a slow and painful death.

Legal Analysis

The issues to be determined in this matter are whether Petitioner ACS has met its burden of proving by clear and convincing evidence that the subject child Heaven is a derivatively severely abused child based on the aggravated circumstances that led to the death of her sibling, five-year-old Jamar, as defined in Family Court Act §§ 1012 (j) and 1051 (e) and Social Services Law § 384-b (8) (a) (i). Respondent Mother failed to testify in this matter and the court draws a strong inference against her (see Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73, 79 [1995]; Matter of Chelsey B. [Michael W.], 89 AD3d 1499, 1500 [4th Dept 2011]).

The threshold inquiry in this matter is whether the deceased child Jamar is an "abused child," and whether aggravated circumstances of "severe abuse" were present. The Family Court Act defines an abused child, in pertinent part, as follows:

"(e) Abused Child' means a child less than eighteen years

of age whose parent or other person legally responsible for

his care

(i) inflicts or allows to be inflicted upon such child

physical injury by other than accidental means which causes [*11]

or creates a substantial risk of death, or serious or protracted

disfigurement, or protracted impairment of physical or emo-

tional health or protracted loss or impairment of the function

of any bodily organ, or(ii) creates or allows to be created a substantial risk of physicalinjury to such child by other than accidental means which wouldbe likely to cause death or serious or protracted disfigurement, or

protracted impairment of physical or emotional health or protractedloss or impairment of the function of any bodily organ, or . . ."(Family Court Act § 1012 [e] [i], [ii]).

Social Services Law § 384-b defines a severely abused child as one who has been found to be abused "by his or her parent if (i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law" (Social Services Law § 384-b [8] [a] [i]).[FN1] Penal Law § 10.00 (10) defines "serious physical injury" as a 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." If the family 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" (Family Court Act §1051 [e]).

Family Court Act §1046 (a) (ii) establishes the doctrine of "res ipsa loquitor" and it permits the court to find a prima facie case of child abuse based on evidence that "(1) an injury to the child which would ordinarily not occur absent an act or omission of the respondents and (2) the respondents were the caretakers of the child at the time the injury occurred" (Matter of Philip M., 82 NY2d 238, 243 [1993]). To meet its burden of proof pursuant to Family Court Act § 1046 (a) (ii), Petitioner ACS must present expert testimony, within a reasonable degree of medical certainty, that will lead the court to find that: (1) the subject child suffered a physical injury that was inflicted, not accidental, resulting in serious physical injury to the child or risk of serious physical injury, and that (2) the child was in the general control and custody ofRespondent Mother during the relevant time of the injury (see Matter of Kayla C., 19 AD3d 692 [2d Dept 2005]; Matter of Infinite G., 11 AD3d 688 [2d Dept 2004]). Upon the establishment of a prima facie case of child abuse, "the burden of coming forward shifts to the respondents, who are then required to offer a satisfactory explanation for the injuries" (Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d 533, 534 [1997] citing Matter of Philip M., 82 NY2d at 244; Matter of Marcus S., 123 AD2d 702[2d Dept 1986]; Matter of Shawniece E., 110 AD2d 900 [2d Dept 1985]). Proof of these elements permits the court to reasonably infer that the child's injuries were inflicted or allowed to be inflicted by the respondent and supports a finding [*12]of a prima facie case of child abuse (see Matter of James P., 137 AD2d 461, 462 [1st Dept 1988] reversing the family court's finding of neglect and holding that the medical testimony supported a finding that the deceased child was an abused child within the definition of Family Court Act § 1012 [e], and the surviving child derivatively was found to be an abused child). The court is required to weigh "the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances" (Matter of Philip M., 82 NY2d at 246).

In this matter, Petitioner ACS established through the testimony of the Medical Examiner Dr. Carolyn Kappen, Dr. Linda Cahill, ADA Joshua Gradinger, and documentary evidence, including the Medical Examiner's Autopsy Report dated June 18, 2011, the post- mortem photographs of the body of Jamar and the videotaped statement of Respondent Mother and her written statements, that the child Jamar suffered pervasive and painful inflicted injuries that created a substantial risk of death and which ultimately caused his death. In the expert opinions of both Dr. Cahill and Dr. Kappen, Jamar's injuries resulted from direct trauma caused by his being hit, kicked and punched. Jamar's internal injuries included a lacerated intestine and hemorrhages and contusions to the bowel, kidney, pancreas and stomach caused by blunt impact inflicted injuries which led to peritonitis. The Medical Examiner found that the cause of death was "blunt impact of torso with visceral injuries and peritonitis" and the manner of death to be "homicide (beaten by other)." Respondent Mother failed to present any evidence whatsoever as to an alternate accidental causation for these fatal internal injuries. Based on the expert testimony, the court finds by clear and convincing evidence that Respondent Mother's videotaped statement that she hit Jamar with an open hand and this led to Jamar's injuries is not a credible explanation for the injury. Both Dr. Kappen and Dr. Cahill testified that the child was punched and/or kicked with great force to his stomach and back many times and these assaults caused his intestine to lacerate and severe damage of his other internal organs. Again, both Dr. Cahill and Dr. Kappen testified, based on a reasonable degree of medical certainty, that Respondent Mother's statement that Jamar did not exhibit pain and appeared "normal" was incredible.

Further, the evidence and testimony of Dr. Kappen and Dr. Cahill established that Jamar sustained more than 30 contusions, bruises, abrasions and scars in both acute, healing and healed stages. Dr. Cahill testified to a reasonable degree of medical certainty that these injuries were evidence of a pattern of severe child abuse over an extended period of time. These scars and marks, which included injuries caused by placing a lit cigarette lighter and a hot fork against Jamar's skin, were evidence that the injuries were inflicted. Both doctors testified that Respondent Mother's explanation that these injuries were caused by Jamar being an "active child" and falling in the park on Monday, June 13, 2011, was not credible and did not in any way explain the injuries.

In addition, in the five day period in question, Respondent Mother stated that the children were always in her sole care. Respondent Mother presented no evidence that other persons, other than two-year-old Heaven, were present in the apartment at the time she hit the child Jamar and he sustained his injuries. Nor did Respondent Mother present any evidence that the child was in the care of others at any time during the period of time the child suffered his fatal injuries. Further, no evidence has been presented that the child had a prior condition that was related to [*13]his injuries.

Accordingly, the court finds that the compelling medical evidence of Jamar's injuries, the expert testimony of Dr. Kappen and Dr. Cahill, and the lack of any credible explanation by Respondent Mother for the child's extensive and fatal injuries, and the undisputed fact that the five-year-old was in her sole custody, more than sufficient to meet ACS's burden of proof to sustain the abuse petition against Respondent Mother by clear and convincing evidence. Due to her acts or omissions, Respondent Mother inflicted extensive taumatic injuries upon the child Jamar, creating a substantial risk of protracted impairment of his physical health, which resulted in his death. Accordingly, the court enters a finding by clear and convincing evidence that the child Jamar is an abused child as defined in Family Court Act § 1012 (e) (i) and (ii), and he has been abused by Respondent Mother (see Matter of Samuel L., 52 AD3d 394 [1st Dept 2008] holding that medical evidence concerning a five-month-old child "with injuries, including a bulging fontanel, bilateral subdural hematoma, skull fracture, and retinal hemorrhages" established that such injuries were non-accidental in nature and would ordinarily not be sustained except by acts or omissions of the parent citing Family Court Act § 1012 [e] [i], [ii];

§ 1046 [a] [ii]).

Further, as to the charge of severe abuse, the uncontroverted findings of Medical Examiner Carolyn Kappen, M.D., provided clear and convincing evidence that the child Jamar suffered "serious physical injury" as defined in Penal Law 10.00 (10). Dr. Kappen determined that the child's death was a homicide that resulted from blunt force trauma to the intestine and resultant peritonitis. Moreover, the evidence is clear and convincing that Respondent Mother acted recklessly and intentionally, with culpability, in complete disregard to the substantial risks posed by Jamar's extensive injuries (see Penal Law § 15.05). Both doctors testified that the blows to Jamar by his mother were done with great force, likely punching or kicking the child numerous times and each injury was caused by a separate blow. She was indifferent to the plight of the child Jamar who, according to Dr Cahill and Dr. Kappen, would have been in severe pain and whose condition worsened over the five day period until his death. Further, Respondent Mother admitted that she never sought medical attention nor any help whatsoever for this child until five days after his injury, when he was unresponsive. Thus, clear and convincing evidence indicates that Respondent Mother acted with depraved indifference to human life, to the life of her son Jamar, as she failed over a five day period to seek medical attention for Jamar as he suffered excruciating pain and discomfort (see Matter of Dashawn W. [Antoine N.], 73 AD3d 574, 575 [1st Dept 2010], lv dismissed 16 NY3d 767 [2011] overturning family court's dismissal of a charge of severe abuse due to insufficient evidence of depraved indifference, holding that respondent's conduct, which caused a five-month-old baby to sustain multiple broken bones, evinced a depraved indifference to the life of the child sufficient to make a finding of severe abuse,citing People v Goodridge, 251 AD2d 85 [1st Dept 1998] holding that a parent's violent shaking of an infant constituted recklessness involving a depraved indifference to human life; cf. Matter of Jezekiah, R.-A. [Edwin R.-E], 78 AD3d 1550 [4th Dept 2010]).

Dr. Cahill testified that if Respondent Mother provided Jamar with medical attention, especially within the first three to four days of the injury, Jamar, very well, may have survived. As she stated, this child suffered a slow and agonizing death. The court finds that Petitioner ACS has satisfied its burden of proving by clear and convincing evidence "aggravated [*14]circumstances" of severe abuse in that Respondent Mother, as a result of reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, severely abused the five-year-old child Jamar who sustained serious and fatal physical injuries. Accordingly, the court finds by clear and convincing evidence that Jamar is a severely abused child and Respondent Mother severely abused him (Family Court Act §§ 1012 [ j]; 1051 [e]; Social Services Law § 384-b [8] [a] [i]; Penal Law §§ 10.00 [10]; 15.05).

Further, as to the charge of derivative severe abuse of the subject child, surviving sibling Heaven, ACS is not required to show that the child sustained physical injury or "serious physical injury" as defined in Penal Law § 10.00 (10), in order for the court to make a finding of derivative severe abuse as to Heaven. Family Court Act § 1046 (a) (i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent." The statute does not require proof of physical injuries with respect to siblings of an abused child (see Matter of Jorela L., 222 AD2d 282 [1st Dept 1995] citing Matter of Vincent M., 193 AD2d 398 [1st Dept 1993]; Family Court Act § 1046 [a] [ i ]). "As the concern is the skewed family dynamic, it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child" (Matter of Marino S., 181 Misc 2d 264, 276 [Fam. Ct., New York County 1999] citing Matter of Patricia J., 206 AD2d 847 [4th Dept.1994] explaining the bases for derivative findings in Article 10 child protective proceedings). The Court of Appeals stated in the Matter of Alijah C. that:

"In drafting these sections [Social Services Law 384-b (8)

(a) and (b)], the Legislature clearly demonstrated an intent to

bring deceased children within the ambit of the Family

Court Act in order to protect the health and safety of

children whose siblings have died at the hands of a parent

or caretaker . . . Clearly siblings of a child killed by abuse

are within the class of children the Legislature sought to

protect in enacting Social Services Law § 384-b, enhancing

the protective purposes of Article 10 of the Family Court

Act" (Matter of Alijah C., 1 NY3d 375, 379-380 [2004]).

A derivative finding of severe abuse is " predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well'" (Matter of Marino S.,100 NY2d 361, 374 [2003], cert. denied 540 US 1059 [2003] quoting Matter of Marino S., 181 Misc 2d at 276 [citation omitted]). The First Department, in reversing the family court, has held that "[a] finding of derivative abuse must be sustained where " [e]vidence of the physical abuse of one child logically supports the conclusion that the parents have a faulty understanding of the duties of parenthood' sufficient to infer an ongoing danger to their other children" (Matter of Tiffany F., 205 AD2d 429, 431 [1st Dept 1994] quoting Matter of Christina Maria C., 89 AD2d 855 [2d Dept 1982]).

In the instant case, this court finds that the parental defects that led to Respondent

Mother's heinous acts against the child Jamar continue to exist and her impaired parental judgment creates a substantial risk of harm for the surviving sibling Heaven in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the child Heaven (Matter of [*15]Kayden E. [Luis E.], 88 AD3d 1205 [3d Dept 2011], lv denied 18 NY3d 803 [2012]; Matter of Justice T., 305 AD2d 1076, 1077 [4th Dept 2003]; Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d at 534 finding that respondent parent caused two-month-old infant to sustain three non-accidental bone fractures, which showed an "impaired level of parental judgment as to create a substantial risk of harm for any child" in the parent's care). Based on the court's finding that Respondent Mother recklessly and viciously assaulted Jamar and then took no action to relieve his suffering and obtain medical care to save his life, and, further, that she abused the child Jamar causing over 30 acute, healed and partially healed abrasions, scars and injuries all over his body, the court finds by clear and convincing evidence that Respondent Mother's parental judgment is so defective and that she exhibits such an inability to control her angry and violent behavior that the child Heaven is likely to be severely abused by Respondent Mother. Therefore, the court makes a finding of derivative severe abuse as to the subject child Heaven based on the clear and convincing evidence of the heinous and serious physical injuries that led to the death of her sibling Jamar. These injuries were caused by the reckless acts and omissions of Respondent Mother, which evinced a depraved indifference to human life, and which continue to exist and pose an imminent and substantial risk of harm to the subject child Heaven and any child in Respondent's care (Family Court Act § 1012 [j]; Social Services Law § 384-b [8] [a] [i]).

The Legislature expressly incorporated the definition of "severely abused" set forth in Social Service § 384-b 8 (a) in the Article 10 definition of "aggravated circumstances" (see Family Court Act § 1012 [j]). In addition, the Legislature amended Article 10 to permit the court to make a finding of "severe abuse" in a child abuse proceeding based on the standard of clear and convincing evidence and made such a finding admissible in a proceeding to terminate parental rights (see Family Court Act §§ 1046 [b] [ii]; 1051 [e]). The legislature acted "to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramountin termination of parental rights proceedings as to surviving children" (Matter of Alijah C.,1 NY3d at 379 citing Family Court Act § 1051 [e]).

At the dispositional hearing the court will determine whether reasonable efforts to reunite the surviving child Heaven with Respondent Mother are required or will be terminated in accordance with Family Court Act § 1039-b (b) (1). The Legislature authorized the court to determine whether "reasonable efforts" to reunite the child and parent should continue to be required when a parent has subjected a child to "aggravated circumstances " as defined in Family Court Act § 1012 (j) (see Family Court Act § 1039-b [b] [1]). If the court determines that such efforts are no longer required, ACS or the foster care agency may immediately file a petition to terminate Respondent Mother's parental rights (see Family Court Act § 1039-b [c]).This constitutes the decision of the court. [*16]

The court directs the appearance of counsel and parties at dispositional and permanency hearings in NA 16543/2011 on February 25, 2013 at 2:00 PM and February 27, 2013 at 2:00 PM. The court directs that ACS transmit the permanency hearing report and an investigation and report to the court, parties and counsel by February 19, 2013.

Notify counsel and parties.

E N T E R:

Dated: Bronx, New York

January 18, 2013

______________________

Carol R. Sherman, Judge

Family Court, Bronx County Footnotes

Footnote 1: Social Services Law § 384-b (8) (a) (ii) and (iii) alternatively define a severely abused child as one whose parent has committed or knowingly allowed to be committed a felony sex offense as defined in penal law or whose parent has been convicted of one of a number of delineated criminal offenses.