Matter of Brandon G. (Carmela A.--Navil G.)

[*1] Matter of Brandon G. (Carmela A.--Navil G.) 2013 NY Slip Op 51550(U) Decided on September 23, 2013 Family Court, Kings County Beckoff, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2013
Family Court, Kings County

In the Matter of Brandon G., MIGUEL G., SARAY G., JOSHUA A., LUIS A., and JENNIFER N., Children Under the Age of Eighteen Years Alleged to be Abused/Neglected by

against

Carmela A. and NAVIL G., Respondents.



NA16258-66/12

Alan Beckoff, J.

This case involves the unfortunate death of three-month-old Brandon G. He was found unresponsive shortly after his babysitter put him down for a nap, and a subsequent medical examination revealed that he also had four fractured ribs and a fractured tibia that were one to two weeks old. The New York City Administration for Children's Services ("ACS") brought this child protective proceeding under Article 10 of the Family Court Act, alleging that both Brandon's mother and babysitter were responsible for acts of abuse and neglect against him and, by extension, his siblings and the babysitter's children.

This Court held an extensive fact-finding hearing, during which ACS and the attorney for Brandon and his siblings presented conflicting medical evidence regarding the cause and effect of Brandon's fractures. Both respondents also testified. [*2]The other issue was whether Brandon's death by apparent suffocation was due to any deliberate or negligent act by his babysitter. For reasons that will be explained, this Court has determined that Brandon was an abused child as defined in F.C.A. § 1012(e)(ii) because of the fractures to his ribs and tibia. The cause of Brandon's death, however, remains unresolved. Therefore, it is not part of the basis for the Court's finding.

Background

On June 7, 2012, ACS commenced this proceeding by filing a petition alleging that Brandon G., age 3½ months, was an abused child because Carmela A., his babysitter, inflicted physical injury or created a substantial risk of death or physical injury to him by placing him on her bed and surrounding him with pillows, which restricted his breathing. ACS further alleged that after Brandon was taken to Maimonides Hospital, an examination revealed that he had four posterior lateral rib fractures that were more than one but less than two weeks old. Because of Brandon's condition, ACS claimed, Carmela's own children — Luis, age 7; Jennifer, age 4; and Joshua, age 1½ — were derivatively abused or neglected.

In a companion petition, both Carmela A. and Brandon's mother, Navil G., were named as respondents. The allegations were otherwise the same, except that Navil's other children — Miguel, age 2½ and Saray, age 3½ — were also alleged to be derivatively abused or neglected. Through an apparent flaw in drafting, the petition did not make specific allegations against Navil.

At intake, the presiding judge remanded all of the children to ACS custody, with Miguel and Saray to reside with a maternal great-uncle and aunt, and Luis, Jennifer, and Joshua to reside with a maternal great-aunt. Later in the proceedings, Luis, Jennifer, and Joshua were released to the temporary custody of their father, Fernando D., who was not a respondent. Both respondents were permitted to have supervised visits with their children.

On June 8, Brandon died.

On June 13, on the application of the attorney for Brandon, Miguel, and Saray, which was then joined by counsel for Navil, this Court held a hearing pursuant to F.C.A. § 1028 for the return of Miguel and Saray to their mother. This Court then denied the application. [*3]

On July 3, ACS filed an amended petition that clarified the allegations against both respondents and reflected the fact that Brandon had died. As in the original petition, Carmela A. was alleged to be a person legally responsible for Brandon as defined in FCA § 1012(g) because of the amount of time she cared for him. The amended petition described Brandon's rib fractures in more detail and added that he also had a fractured tibia. It also included the determination of his treating physician that his injuries were consistent with child abuse and that neither Navil G. nor Carmela A. had an explanation for them. The amended petition reiterated the allegation regarding Carmela leaving Brandon on a bed surrounded by pillows and his being found unresponsive by her shortly afterward. Finally, all of the other children were alleged to be derivatively abused or neglected.

The Medical Examiner's Report

On October 26, 2012, the Office of the Chief Medical Examiner of the City of New York ("ME") provided its completed autopsy report on Brandon. The final diagnoses were:

I.NORMALLY DEVELOPED PREVIOUSLY HEALTHY 15 WEEKS

OLD (sic) INFANT FOUND UNRESPONSIVE IN UNSAFE SLEEPING ENVIRONMENT (ADULT BED WITH PILLOWS) IN PRONE POSITION ON 06/04/12

A. STATUS POST RESUSCITATION

B. ACUTE DIFFUSE ANOXIC-ISCHEMIC ENCEPHALOPATHY.SEE NEUROPATHOLOGY REPORT

C. MULTI-ORGAN FAILURE AND DIABETES INSIPIDUS(CLINICAL)

D. PATCHY ACUTE BRONCHOPNEUMONIA, SEE REPORT OFMICROSCOPY

II.BLUNT IMPACT INJURIES OF TORSO WITH ANTEMORTEM FRACTURES OF LEFT 3RD - 7TH RIBS WITH CALLUS FORMATION AND HEALING FRACTURE OF DISTAL RIGHT TIBIA

A. SEE ANTHROPOLOGY REPORT

CAUSE OF DEATH: UNDETERMINED

MANNER OF DEATH: UNDETERMINED [*4]

The report further indicated that the fractures did not contribute to Brandon's death.

Shortly after receipt of the ME's report, the attorney for Brandon, Miguel, and Saray moved to vacate the Court's 1028 order pursuant to F.C.A. § 1061 or, alternatively, for a new 1028 hearing. In a letter to Brandon's mother, Navil G., from Dr. Charles Hirsch, the Chief Medical Examiner, which was annexed to this motion as Exhibit B, he explained that the autopsy on Brandon "was unable to determine a disease or condition which resulted in your baby's death." He informed the mother that the ME's office runs a Sudden Infant and Child Death Resource Center, which has staff to help bereaved parents.

The Court found that this new information did not establish good cause to vacate its 1028 order and denied the motion.

The Fact-Finding Hearing

A. Petitioner's Case

The fact-finding hearing commenced on February 4, 2013.[FN1] Preliminarily, the Court marked a number of Petitioner's exhibits that were then placed into evidence: three Oral Report Transmittals (one from Dr. Ingrid Walker-Descartes of Maimonides Hospital and two from Nadia McLeod, the ACS caseworker), Brandon's records from Lutheran Hospital and Maimonides Hospital, and the ME's report. The Lutheran Hospital records showed that Brandon was brought there by ambulance, that he was unresponsive, and that after preliminary tests, including a CT scan, he was transferred to Maimonides Hospital. The Maimonides Hospital records showed a much more thorough examination and tests that revealed "multiple left rib fractures, likely subacute" as well as a "corner fracture of the distal right tibia, consistent with a twisting." At Maimonides, Brandon went into cardiac arrest and was declared brain dead.

The first witness was Nadia McLeod, who testified that she first spoke to Navil [*5]G. on June 5, 2012 at Maimonides Hospital.[FN2] Ms. McLeod then took the mother for a joint interview with a Special Victims Unit detective at the Children's Advocacy Center ("CAC"). Navil said that on the morning of June 4 she had dropped off Brandon at Carmela's home after receiving a call to report to work. She worked assembling piñatas two or three times a week and often got called to report to work on short notice. Carmela had babysat Brandon at least fifteen times and occasionally watched Miguel and Saray too, but on this particular day, Navil took them with her to work. Navil said that she got a call later that morning from Carmela saying that Brandon was sick. She went to Lutheran Hospital, where, she said, Brandon was "practically dead."

Navil also had said that in her own home all of the children slept with her in one bed, but that in Carmela's home Brandon slept on a baby swing in the living room or in Carmela's bed. Ms. McLeod said that when she went to Navil's home on June 5, she observed that there was indeed no crib or basinet. There was also another bedroom that she was told was rented out to another family but she did not see it.

Ms. McLeod spoke to Navil again on June 7, when there was a child safety conference at the ACS field office. Navil again said that she had dropped off Brandon at Carmela's home on the morning of June 4 and then received a phone call from Carmela that Brandon was in the hospital. She said that Brandon was asleep when she left him, that he had no signs of bruises, and that the last time Carmela had babysat him was on June 1. Navil said that she did not know until the child safety conference that Brandon also had fractured ribs. Asked at the conference if she could account for that, she said that they were from Emergency Medical Services ("EMS") trying to revive Brandon on the way to the hospital.

Ms. McLeod further testified that she spoke to Carmela at her home, also on June 5. Carmela said that when Navil dropped off Brandon on the morning of June 4, she was at the gym but that her sister Veronica was home. Veronica was usually at work when Brandon was there. When Carmela got home a short time later, Brandon was in the swing. She changed his diaper and then put him in her bedroom, on his back on the bed. Carmela said that the bed is against the wall and had a crib bumper and adult size pillows. She said that Brandon slept on his back but moved around. She left to take her son Luis to school, leaving Veronica with the other [*6]children, and checked on Brandon periodically after she returned again. At one point she noticed that Brandon had rolled over and looked white. She called Navil.

At the child safety conference held at the ACS field office on June 7, Carmela also said that when she put Brandon on the bed, she took her children Jennifer and Joshua out of the room so they wouldn't hurt him, although they had never done anything to him before. She said she put two pillows on each side of Brandon and one under his head.

Ms. McLeod said that she was present when Jennifer and Luis were interviewed at the CAC. Jennifer said that she was "in charge" of Brandon when he was at her home. She also said that Brandon was on the floor and bleeding from his nose when he was found. Luis said that Joshua would "fight" with Brandon.

Finally, Ms. McLeod said that Carmela, upon learning that Brandon had some fractures, had no explanation. Carmela said that she never saw Brandon crying or in discomfort prior to June 4.

The next witness was Dr. Ingrid Walker-Descartes from Maimonides Hospital. Her curriculum vitae was placed into evidence as Petitioner's Exhibit 7 and the parties stipulated to the Court's qualifying her as an expert in pediatrics and child abuse. Dr. Walker-Descartes said that she had reviewed all of Brandon's medical records as well as the ME's report but also was personally familiar with Brandon's case because the pediatric intensive care unit at Maimonides had called on her for a consultation when Brandon was still in pediatric intensive care.

Dr. Walker-Descartes said that before she examines a child such as Brandon, it is customary to talk to the parent or caregiver to get a full history of the child from pregnancy through birth and what led up to the hospitalization. Here, she spoke to Navil through a Spanish interpreter. She was told that Brandon was born after a full-term pregnancy, with no complications at delivery, and that he was developing normally, feeding well, and had no health problems. According to what the mother told her, Brandon slept in a crib at home but at his babysitter's home he slept in a swing or on a bed with pillows and bumpers to keep him in place. A review of Brandon's pediatric and immunization records showed no signs of infection.

Dr. Walker-Descartes said that Brandon had been transferred from Lutheran Hospital on June 4 as unresponsive. When she saw him on June 5, he was still unresponsive and also intubated. Lutheran had performed a CT scan on Brandon and a skeletal survey was done at Maimonides. Because of Brandon's positioning on his back and the intubation, a full posterior exam, an MRI, and x-rays could not be performed. The skeletal survey showed that Brandon had four healing rib fractures and a healing fracture of the distal tibia (the lower part of the bone in the leg, below [*7]the knee and at the ankle), also known as a corner fracture. The CT scan showed that Brandon's brain was swollen due to lack of oxygen, a condition known as ischemic encephalopathy. Dr. Walker-Descartes said that this condition was not related to the fractures and her opinion, within a reasonable degree of medical certainty, was that it could cause death.

Dr. Walker-Descartes described Brandon's rib fractures as posterior and lateral, meaning to the rear of the body but close to the sides, and noted that the ME's report said the rib fractures were anterior, or to the front of the body. She said that based on callus formation, the fractures were more than one but less than two weeks old. Some kind of blunt force or compression would have caused these fractures, she said, and it was unlikely that a seven-year-old (the age of the oldest child with the opportunity to be close to Brandon) would have big enough hands to do it. Also, the amount of force required to fracture Brandon's ribs would take adult strength because a child's bones are more pliable than an adult's, making more force necessary.

The doctor also said that with rib fractures there would not necessarily be visible bruising or even a manifestation of pain that would be distinguishable from another reason why a baby would cry. And she acknowledged that a routine wellness examination by a pediatrician would not necessarily detect rib fractures or even brain trauma in a child Brandon's age.

Dr. Walker-Descartes further testified that she considered and rejected organic causes such as osteogenesis imperfecta, a genetic disorder that causes bones to break easily. She said these rib fractures would be consistent with being in a car accident, but such an event was not given as part of Brandon's history. Dr. Walker-Descartes said that in Brandon's case it was "mishandling" that caused his rib fractures as well as the distal tibia fracture, which she attributed to his leg being forcefully grabbed and twisted. As with the rib fractures, she considered and rejected organic and accidental causes for the tibia fracture, which also appeared to be around two weeks old and showed signs of healing.

Dr. Walker-Descartes stated that a fall would not have caused either the rib or the tibia fractures, that EMS resuscitation would not have caused the rib fractures, and that, in this case, neither did birth trauma. She said that Brandon's rib fractures, left untreated, would have healed in about six weeks. The tibia fracture would have healed on its own as well. Also, she said that even though the ribs protect the lungs, fractures such as Brandon's would have caused him discomfort but would not have restricted his breathing. But Dr. Walker-Descartes firmly rejected the proposition advanced by Brandon's attorney that Brandon had not, in the words of F.C.A. § 1012(e)(i) and (ii), sustained substantial risk of protracted loss or impairment of the [*8]function of any bodily organ: she said that the force required to fracture four ribs on a child his age risks injury to internal organs such as the heart, spleen, and/or gastrointestinal tract.

Dr. Walker-Descartes said that Brandon's suffocation was likely non-accidental because he wouldn't be able to go facedown by himself. She had been told that Brandon was put down on the bed on his back and that he was not able to roll over. In her opinion, again within a reasonable degree of medical certainty but which she acknowledged was not in line with the ME's, Brandon did not die of Sudden Infant Death Syndrome. She also said that she had ruled out as possible causes of death two medical conditions that were mentioned in passing in the ME's report but for which Brandon had not been tested: Stickler Syndrome, a malformation of bones in the face that can constrict breathing, or Pierre Robin Syndrome, a malformation of the roof of the mouth that also causes breathing problems.

Asked to explain the ME's finding of diabetes insipidus, Dr. Walker-Descartes explained that this is a condition where the body cannot properly get rid of waste through the urine. It is usually caused by some kind of trauma to the brain "or the brain just not functioning properly" that in turn causes the kidneys to malfunction. Diabetes insipidus was not related to Brandon's fractures, she said, but would be consistent with "this infant being mishandled." It would also not be detected during a routine wellness examination.

Regarding the ME's finding of bronchopneumonia, Dr. Walker-Descartes said this is caused by fluid buildup in the lungs due to infection or insufficient air intake. This condition was also not linked to the fractures.

Brandon's medical records and the ME's report also showed that he had subdural and intradural hemorrhaging to the brain. Dr. Walker-Descartes explained that the former is a rupturing of blood vessels between the dura, a lining over the brain, and the brain itself. In a child Brandon's age, this would be caused by vigorous shaking. Intradural hemorrhaging is to a different area of the brain, she said, and is linked to suffocation and lack of oxygen to the brain. Either kind of bleeding can cause death.

Finally, Dr. Walker-Descartes said that she disagreed with the ME's final determination that Brandon's cause of death could not be determined. However, she said that she did not make her own diagnosis as to cause of death. In her opinion, Brandon had been mishandled on several occasions in the two weeks prior to his death but she could not say which particular episode of mishandling had been fatal. The mishandling, whether through shaking or being deprived of oxygen, had resulted in bleeding to the brain. [*9]

At the close of Petitioner's case, the attorneys for the subject children and counsel for both Respondents moved for dismissal of the petition on the grounds that ACS failed to establish a prima facie case of abuse or neglect. After hearing oral arguments, the Court denied the motion in its entirety.

B. Attorney for the G. Children's Case

Dr. Katherine Grimm, the medical director of the New York Center for Children, testified as a witness for the attorney for Brandon, Miguel, and Saray. Her curriculum vitae was placed into evidence as Attorney for the Children's Exhibit 1 and, as with Dr. Walker-Descartes, the parties stipulated to the Court's qualifying her as an expert in pediatrics and child abuse.

Dr. Grimm said that she was familiar with Brandon's case, having reviewed the hospital records, ME's report, and the petition. She said that the ME's report was the most objective and would be the most accurate. Asked about Dr. Walker-Descartes's hypothesis that Brandon's fractures were the result of mishandling by an adult, Dr. Grimm stated that in her opinion it was possible but that other mechanics were also possible: Brandon could have been sat on, even by another child; something could have fallen on him, or it could have been from resuscitation, although that was unlikely here. She said that Brandon was babysat in a "chaotic home" where he was not properly supervised and there were other adults around beside Carmela.

Dr. Grimm explained that rib fractures such as Brandon's are usually discovered as incidental during X-rays for something else. Brandon's rib fractures happened at different times because they were at different stages of healing. She agreed with the ME's report that his rib fractures were anterior, or toward the front, and not posterior, as Dr. Walker-Descartes had said. Anterior rib fractures, she said without elaboration, are less typical of abuse. Dr. Grimm also said that it was "highly unlikely" that a lay person — such as the child's mother — would notice rib fractures. Dr. Grimm agreed with Dr. Walker-Descartes that such fractures usually heal by themselves. But she said that according to medical literature, Brandon's rib fractures were unlikely to cause death, disfigurement, or protracted loss or impairment of a bodily function or even substantial pain.

Regarding the fracture to Brandon's right lower leg, the distal tibia fracture, Dr. Grimm said that this would be caused by the force of yanking hard and that another child could have the strength to do it. As with the rib fractures, she said that it was also unlikely for a child's mother to notice this kind of fracture and for it to have any harmful consequences on the child's health.

Dr. Grimm agreed with Dr. Walker-Descartes that the diabetes insipidus found by the ME in Brandon was the result of loss of oxygen to the brain. Unlike Dr. [*10]Walker-Descartes, who could not pinpoint a specific act that caused Brandon's death, Dr. Grimm's opinion as to Brandon's cause of death was accidental suffocation due to his being left in an unsafe sleeping situation.

C. Respondents' Cases

Both respondents testified through a Spanish interpreter.

Carmela A., the mother of Jennifer, Luis, and Joshua, testified that she lived with her children as well as her sister Veronica, her husband, and a 20-year-old nephew. She said that before Brandon was born, Navil and Navil's other children lived with her and then continued to reside in her home for a little over a month after Brandon's birth in February 2012. After Navil moved out, Carmela babysat for Brandon once or twice a week in April, then more frequently in May. The last time she babysat Brandon before June 4 was on June 1.

Carmela testified that on June 4, Navil dropped off Brandon in the morning while she was out but her children and Veronica were home. She said that she did not know that Navil was bringing Brandon over that day. When she got home, Brandon was asleep in a swing. She left again to take her son Luis to school and when she returned a few minutes later, Brandon was still sleeping. But then he woke up and started crying, so she gave him a bottle and put him in her bed. She said that she placed him on his back in the middle of the bed with pillows around him, and that there was also a crib bumper on the side of the bed against the wall. Then she went into the kitchen but checked on Brandon every ten to fifteen minutes. He hadn't moved, but when she looked in on him shortly before 1:00 PM, he was facing down. She said that she had seen him use his feet to move down a little on the bed but not turn over. This was the first time he had done that.

Carmela also said that when Brandon was in her home, she was his primary babysitter for the five to six hours that he was there. She would not ask her sister, husband, or nephew to babysit him, but one of them might keep an eye on him for a minute if she went into the kitchen. Carmela said that she did not remember telling Ms. McLeod that she wanted to keep her children away from Brandon, but they were never left alone with him anyway. She also said that Jennifer did not tell the people at CAC that she is in charge of Brandon. In any event, she said, she never saw Jennifer play or do anything with Brandon and Jennifer could not have known if Brandon had fallen on the floor or was bleeding from his nose because she was in the living room when Carmela found him.

Finally, Carmela said that she did not remember being told by Ms. McLeod that Brandon had rib fractures. Even though she had babysat him approximately twice a week in the weeks leading up to June 4, she had no explanation for how he had [*11]fractured ribs.

Navil G., the mother of Miguel, Saray, and Brandon, testified that she and her children had been living with Carmela for around two months when Brandon was born. They moved out when he was around a month old. Carmela babysat Brandon occasionally when they were living with her and continued to babysit him after they moved out. Navil said that she never had a problem with Carmela's care of Brandon.

Navil also said that Brandon was a healthy baby and that she had taken him to the doctor two to three times for his immunizations and wellness examinations. Brandon slept in a rocking seat but would sometimes sleep in the same bed as herself and the other children. She never saw him turn over, just move down a little with his hands and feet.

Regarding Brandon's fractures, Navil said that she never observed Brandon to have any bruises or discomfort and would not even cry when she held him. She also never observed any change in his behavior after picking him up from Carmela's home. She thought that the rib fractures were probably caused by the EMS attempt to resuscitate him but she could not account for the leg fracture. Finally, she denied hurting him and said that she never saw anyone else hurt him.

Legal Analysis

A child is abused, within the definition of F.C.A. § 1012(e)(i), when a parent or other person legally responsible for the child's care "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."

For a finding of abuse to be made against a respondent, a child does not have to actually sustain a serious injury if the evidence demonstrates that the respondent "created or allowed to be created a substantial risk of physical injury...by other than accidental means which would be likely to cause...protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ." F.C.A. § 1012(e)(ii); see Matter of Michael S., 224 AD2d 277 (1st Dept., 1996) (modifying the Family Court's order finding that the subject seven-month-old child with multiple injuries was neglected by entering a finding of abuse). As the Monroe County Family Court said in Matter of X.B., 11 Misc 3d 1074(A) (Fam. Ct., Monroe County, 2006): The caselaw repeatedly holds that when a responsible person deliberately inflicts an injury on a child, it meets the statutory definition of abuse even if the injury itself is not [*12]obviously serious and does not last for weeks or months or years (i.e., may not seem "protracted" in the common meaning of the word). The intentional nature of the injury-producing actions is more important than the fact that a person luckily did not actually do worse damage.

See also Matter of Angelique H., 215 AD2d 318 (1st Dept., 1995); Matter of Nassau County Dept. of Social Services on behalf of Joseph H., 191 AD2d 634 (2nd Dept., 1993); Matter of C. Children, 183 AD2d 767 (2nd Dept., 1992) (all holding that even if the intentionally-inflicted injury to a child is not serious, the child is nevertheless abused if the evidence shows that the respondent placed the child at risk of a serious injury).

Family Court Act § 1046 (a)(ii) provides that "proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of the child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible." This statute permits a finding of abuse based upon evidence of an injury to a child which would not occur absent acts or omissions of the responsible caretaker, and authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur. See Matter of Philip M. 82 NY2d 238 (1993). "[O]nce a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability"; however, "the burden of proving child abuse always rests with petitioner." Id. at 244; see also Matter of Keone J., 309 AD2d 684 (1st Dept., 2003).

Once a prima facie case is established, there is a rebuttable presumption of parental culpability, which the court may or may not accept based upon all the evidence in the record. 82 NY2d at 246. In response to a prima facie case, a respondent may rest without attempting to rebut the presumption and permit the court to decide the case on the strength of the petitioner's evidence, or, alternatively, a respondent may challenge the establishment of the prima facie case by presenting evidence (1) that the child was not in the respondent's care at the time of the injury, (2) that the injury could reasonably have occurred accidentally, or (3) by countering the evidence of the child's injury or condition. Id. at 245. "It is generally not sufficient for a respondent merely to deny that he or she caused the injury or knows how it occurred, or to allege generally that others had access to the child...Only a credible explanation for the injury can rebut the presumption." Matter of T.A., 34 Misc 2d 1236(A) (Fam. Ct., New York County, 2012). [*13]

Moreover, in accordance with res ipsa loquitur principles, courts have held that where a child is injured and it is unclear who caused the injuries and when and where the injuries occurred, a prima facie case of abuse or neglect can be established with respect to any legally responsible person who was caring for the subject child during the time period within which the injuries or condition arose. The identity of the actual abuser does not have to be established. For example, in Matter of Fantaysia L., 36 AD3d 813 (2nd Dept., 2007), the Appellate Division, Second Department, affirmed the Family Court's finding of abuse against the father and paternal grandmother of a 3½-year-old child who had contracted gonorrhea. The record showed that the child regularly went back and forth between the homes of her mother and father, who each had other adults residing with them. Even though the identity and household of the abuser could not be determined, the Appellate Division held that ACS still had established a prima facie case and the Family Court had properly applied the res ipsa loquitur doctrine in making a finding against the father and paternal grandmother as well as the mother and stepfather.

More recently, in Matter of Matthew O., 103 AD3d 67 (1st Dept., 2012), the Appellate Division, First Department, affirmed the Family Court's finding of abuse against both parents and the nanny of a five-month-old child who had sustained multiple fractures. The Appellate Division said that "the inability of ACS to pinpoint the time and date of each injury and link it to an individual respondent [is not] fatal to the establishment of a prima facie case against all three respondents." Id. at 73. The Court distinguished the situation in Matthew O. with that in Matter of Veronica C. v. Carrion, 55 AD3d 411 (1st Dept., 2008), which involved an administrative determination by the New York State Office of Children and Family Services that a nanny had mistreated a child. The nanny was one of three caretakers — the parents being the other two — of the child in the 24 hours preceding the child's injury. The First Department annulled the State's determination, holding that there was not substantial evidence to support it because the record did not determine which individual was the child's caretaker at the time of the injury. The difference between the two cases, the Court said, was that in Veronica C. allegations of abuse were brought against only one of the child's multiple caretakers — the nanny and not the parents — and the evidence of abuse against the nanny was insufficient.

Another distinguishable situation is presented in Matter of Zachary MM., 276 AD2d 876 (3rd Dept., 2000). In this case, a three-month-old child sustained a skull fracture while at the home of his child care provider. When he was brought to the hospital, he was found to also have multiple fractures to his ribs, legs, and wrist. The Sullivan County Department of Family Services brought an Article 10 proceeding [*14]against the caretaker and both parents. After trial, the Family Court dismissed the petition against the parents. The Appellate Division, Third Department, affirmed the Family Court's determination to credit the testimony of the parents and their expert on the cause and timing of the child's injuries and place responsibility for the abuse solely on the caretaker.

*****

The medical evidence adduced at the fact-finding hearing presented the Court with three conflicting opinions regarding Brandon's cause of death. The ME's report had a curious contradiction: it said that Brandon was "found unresponsive in [an] unsafe sleeping environment" yet concluded that the cause and manner of his death was "undetermined." Dr. Grimm went further and said that in her opinion, Brandon indeed died of accidental suffocation due to his being left in that "unsafe sleeping environment." Dr. Walker-Descartes disagreed with the ME's conclusion that Brandon's cause of death could not be determined but because, in her opinion, Brandon had been "mishandled" so much in the days prior to his death, she could not say exactly what caused it either.

Much of the lay testimony at the fact-finding hearing also focused on the circumstances surrounding Brandon's suffocation and ultimate death. Dr. Grimm's opinion would support a finding of neglect based on improper supervision, and in at least one reported case this was the basis for such a finding. See Matter of Melanie S., 28 Misc 3d 1204(A) (Fam. Ct., Kings County, 2010). However, giving deference to the ME's final determination here, this Court declines to make such a finding and instead bases its determination that Brandon was abused solely on his multiple fractures.

The evidence showed that Brandon had sustained multiple rib fractures and a fracture of the distal tibia. All were inflicted by blunt force and were in various stages of healing. Dr. Walker-Descartes testified definitively that these injuries were caused by "mishandling" and not by organic or accidental means. Dr. Grimm hesitated to use the word "mishandling," saying that it was not a medical term, but she agreed with the conclusion that Brandon was not handled carefully. While Dr. Walker-Descartes said that only an adult would have the strength to cause Brandon's fractures, Dr. Grimm was more speculative. She agreed that Brandon's injuries were not accidental, but said that another child could have been strong enough to break Brandon's bones, either by hand or sitting on him. Ultimately, Dr. Grimm attributed Brandon's injuries to his being babysat in a "chaotic home"where there were other adults and children around and he was not properly supervised. [*15]

This Court unequivocally rejects the argument made at trial by the attorney for Brandon, Miguel, and Saray that a three-month-old child with four fractured ribs and a fractured tibia is not abused because he fortuitously did not sustain more serious or protracted injuries. To accept that idea would give license to any parent or person legally responsible for a child's care to break particular bones just enough to cause the child only mild discomfort and require only minimal recuperation time. Although the medical evidence in this case demonstrated that Brandon's fractures, by themselves, did not cause his death or serious impairment to any of his bodily organs, Dr. Walker-Descartes was clear that the force required to fracture the ribs on a child Brandon's age created a substantial risk of impairment of the function of internal organs such as the heart, spleen, and/or gastrointestinal tract.

The other consideration for this Court, of course, is its evaluation of the credibility of the respondents. Being in the unique position to observe their demeanor and assess their testimony, this Court finds that even accounting for their use of a Spanish interpreter, the testimony of both respondents was evasive and vague. The Court finds that neither respondent presented any credible alternative explanation for Brandon's injuries sufficient to rebut the presumption of culpability that was established by the prima facie case presented by ACS.

Also, there is no dispute that both respondents shared child care responsibilities for Brandon during the relevant time period. In the two weeks leading up to June 4, 2012, the date of his hospitalization, Brandon lived with his mother, Navil, but spent a number of days at the home of his regular babysitter, Carmela. So, although the precise days and locations that Brandon sustained the fractures to his ribs and tibia are not known, the presumption of culpability extends to both respondents, both of whom cared for the child during the period in which the medical evidence showed these injuries occurred.

The Court's finding against Carmela is further based on her being a "person legally responsible" for the care of Brandon as defined in F.C.A. § 1012(g). The concept of a "person legally responsible" under this statute includes any person having parental responsibility for a child or who serves as the functional equivalent of a parent in a household or family setting. See Matter of Yolanda D., 88 NY2d 790, 795-796 (1996); Matter of Jessica C., 132 Misc 2d 596 (Fam. Ct., Queens County, 1986). "Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case." Yolanda D., 88 NY2d at 796. The factors to be considered include the nature of the contact between the child and [*16]the respondent, the extent of the control by the respondent over the child's environment, and the relationship between the respondent and the child's parent.

By this standard, Carmela's status as a "person legally responsible" for Brandon's care is clearly established. Other than his own mother, Brandon's child care was provided exclusively by Carmela in her home on a frequent number of occasions during the period prior to June 4.

Accordingly, this court finds that ACS has established by a preponderance of the credible evidence that Brandon was an abused child as defined by F.C.A. § 1012 (e)(ii) and that both respondents are liable for his condition.

*****

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." In Matter of Dutchess County Department of Social Services on behalf of Douglas E., 191 AD2d 694 (2nd Dept., 1993), the Appellate Division, Second Department said: In cases of derivative abuse or neglect, there is no per se rule that the child of a parent who abuses one sibling is automatically a derivatively abused or neglected child. The focus of the inquiry...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. Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused one child will place his or her other children at substantial risk of harm (citations omitted).

See also Matter of Kristina R., 21 AD3d 560 (2nd Dept., 2005); Matter of Ramsay M., 17 AD3d 678 (2nd Dept., 2005). The Court of Appeals, in Matter of Marino S., 100 NY2d 361 (2003), a termination of parental rights case, endorsed the notion that derivative findings of abuse may be "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." Id. at 374.

It is not necessary to show that the other children in the household were also injured for a court to enter a derivative finding of abuse or neglect with respect to those children. See, e.g., Matter of Anthony S., 280 AD2d 302 (1st Dept., 2001); Matter of Quincy Y., 276 AD2d 419 (1st Dept., 2000). [*17]

Here, the Court is finding that Miguel and Saray are derivatively abused by their mother, Navil G., and that Joshua, Luis, and Jennifer are derivatively abused by their mother, Carmela A. At the time of the filing of the petition a little over a year ago, they ranged in age from 1½ years to 7. Even though these children were all older than Brandon, this Court's finding that both respondents are responsible for the injuries sustained by that child indicates a problem with their respective parental judgment and impulse control that places these children at similar risk of harm.

DATED:BROOKLYN, NEW YORK

SEPTEMBER 23, 2013

ENTER:

_____________________________________

ALAN BECKOFF, JFC Footnotes

Footnote 1:

This Court, sitting as the Emergency Hearing Part in Kings County, conducted the 1028 hearing although the case was assigned to a different judge for all other purposes. On July 27, 2012, that judge denied the motion of the attorney for Brandon, Miguel, and Saray for an expedited fact-finding hearing because of the large number of pending cases on the trial calendar and the difficulty in accommodating the schedules of the six attorneys on the case. Ultimately, the case was reassigned back to this judge when that judge transferred to another county.

Footnote 2:

Over the course of the fact-finding hearing, the testimony of some witnesses was taken out of turn to accommodate their availability or the Court's schedule. For the sake of clarity, testimony will be summarized as if presented in order.