Matter of Carlos P. (Rafael P.--Carolina M.-P.)

[*1] Matter of Carlos P. (Rafael P.--Carolina M.-P.) 2014 NY Slip Op 51903(U) Decided on December 23, 2014 Family Court, Bronx County Pitchal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2014
Family Court, Bronx County

In the Matter of Carlos P. and Carla P., Children under Eighteen Years of Age Alleged to be Neglected by

against

Rafael P. and Carolina M.-P., Respondent.



NA-xxxxx/xx; NN-xxxxx/xx



Alan W. Sputz, Esq.

Special Assistant Corporation Counsel

Administration for Children's Services

Family Court Legal Services

Bronx Family Court

900 Sheridan Ave., 6th Floor

Bronx, NY 10451

By:Kimberly Foreman, Esq.

Harold Meyerson, Esq.

131 E 83rd St, # 6A

New York, NY 10028

Counsel for Carolina P.

Ryan Napoli, Esq.

Bronx Defenders, Family Defense Practice

860 Courtland Ave.

Bronx, NY 10451

Counsel for Rafael P.

Helen Kloogman, Esq.

Legal Aid Society, Juvenile Rights Practice

900 Sheridan Ave. Bronx, NY 10451

Attorney for the Children
Erik S. Pitchal, J.

Following a mistrial before another jurist, this matter was re-assigned to the undersigned for a new fact-finding hearing. Trial commenced on September 3, 2013, as to both respondents concerning allegations in an amended petition dated September 28, 2011 (docket NA-30295/10), and a petition dated May 25, 2011 (docket NN-14783/11). The gravamen of the petitions is that the respondents physically abused 12-month-old Carlos P. and derivatively neglected his newborn sister Carolina. On February 11, 2014, the respondent-father, Mr. Rafael P., submitted to the Court's jurisdiction under Family Court Act § 1051(a), and, on consent of the parties, the Court entered a finding of neglect against him. The trial continued as to the respondent-mother, Ms. Carolina M.-P. thereafter.

The trial concerning Ms. M.-P. took place on the following dates: September 3, 2013; October 8, 2013; October 25, 2013; October 31, 2013; June 17, 2014; September 3, 2014; October 10, 2014; and November 20, 2014. The record included four witnesses for the petitioner (Nicola Martin, Rosa Rosado, Nancy Baranco, and Joan Torres) and Ms. M.-P.'s testimony on her own behalf. The record also included petitioner's Exhibits 1-13: Exhibit 1 was the prior testimony of Dr. Aaron Miller from the first trial, dated July 24, 2012, which was admitted on stipulation. Exhibit 2 was Dr. Miller's curriculum vitae. Exhibit 3 was the complete set of certified and delegated medical records from Lincoln Hospital concerning the child Carlos, and Exhibit 4 was a subset of Exhibit 3 (those portions deemed by petitioner to be particular relevant). Exhibits 5 through 13 were reports made to the state central registry of child maltreatment with the following dates: Ex. 5, October 22, 2010; Ex. 6, May 9, 2011; Ex. 7, May 12, 2011; Ex. 8, May 18, 2011; Ex. 9, March 21, 2011; Ex. 10, March 23, 2011; Ex. 11, April 14, 2011; Ex. 12, May 11, 2011; and Ex. 13, May 17, 2011. Finally, the Court took judicial notice of three prior court orders in this matter (April 27, 2011; May 16, 2011; and July 29, 2011). Based on this record, and for the reasons that follow, the petitions against Ms. M.-P. are hereby DISMISSED.

Dr. Miller testified that the child Carlos presented to the hospital with a spiral leg fracture on October 22, 2010. Mr. P. told him that the parents were in bed watching television while the child was in the crib, in their bedroom, standing and holding the crib rail. Mr. P. told Dr. Miller that he heard a crack and saw the child's leg caught between the slats. Ms. M.-P. told Dr. Miller the same story, though she did not mention hearing a cracking sound, only that she heard the baby crying, saw his leg caught in the slats, and a few minutes later noticed that something seemed wrong with his leg, so she pulled him out of the crib and the parents took him to the emergency room.

Dr. Miller also discussed an earlier visit to the hospital by the P.s with Carlos, on May 12, [*2]2010. At that time, the child presented with swelling to the right side of his forehead, and Mr. P. told Dr. Miller that the family had been at home in the Dominican Republic on May 8 when the child fell off the bed. They were scheduled to travel to New York around that time and kept their plans, and then brought the child to the hospital on May 12. Dr. Miller explained that this explanation was not consistent with the child's injury, and that the hospital called the State Central Registry for child maltreatment at the time. However, the SCR rejected the case because the child had no bruises and seemed well cared for. When the family returned in October, Dr. Miller asked them again about the injuries from May. Mr. P. stated that the child had been sitting on the floor and fell backwards, which was not consistent with the child's May injury to the front of his head. Independently, Ms. M.-P. gave the same explanation about the child falling backwards in May.

Dr. Miller explained that in nine years of practice in the Bronx he had never seen a spiral fracture caused in the manner described by the parents concerning Carlos's October injury. A spiral facture of the femur in a non-mobile infant, he explained, is usually caused by violent, forceful twisting in an abusive manner. He allowed, however, that accidental spiral fractures of the femur can indeed occur in non-mobile infants. For example, they could be caused by the child jumping in a jumper or walker and landing the wrong way. Critically, he could not exclude to a reasonable degree of medical certainty the possibility that Carlos sustained his injury in the manner described by the parents, with his leg caught in the crib slats. (Ex. 1 at 39; 47.) Indeed, it was the combination of the October injury and the parents' October explanations for the May injury that raised a concern of abuse for Dr. Miller.

The rest of the petitioner's witnesses testified credibly. Ms. Martin testified that on October 26, 2010, Ms. M.-P. gave her the same story about the October and May injuries that she had given Dr. Miller earlier that month. She also testified that Ms. M.-P. denied having told the hospital a different version of the May injury when the child was brought to the hospital in May.

Ms. Rosado testified that the P.s came to her organization, the Child Welfare Organizing Project, in May 2011 for advocacy assistance due to their children being in foster care. When she asked them why the children were in care, Ms. M.-P. tried to answer but Mr. P. cut her off and said he would answer, and Ms. M.-P. remained quiet thereafter. Any attempts by Ms. M.-P. to talk were met with Mr. P.'s cutting her off and telling her to be quiet. Six days later, Mr. P. called Ms. Rosado in a rage, threatening to kill the foster care agency case planner.

Ms. Baronco testified that on December 7, 2010, Ms. M.-P. called her, upset, to report that Mr. P. was telling her to lie in court, and that she could not take the pressure from him anymore. Ms. Baronco went on to describe a meeting at the foster care agency on December 8, 2010, during which Mr. P. encouraged Ms. M.-P. to "tell the truth" so that she can avoid being deported as a friend had been warning her about; Ms. M.-P. was upset and said that actually it had been Mr. P. himself who was threatening her with deportation. Ms. Baronco said that as the meeting progressed, Mr. P. put the blame for the child's injury squarely on Ms. M.-P., that she grabbed the child's leg to prevent him from falling, and that he himself was at work when it [*3]happened. Ms. Baronco said that Ms. M.-P. was upset and incredulous but eventually adopted his story and did not correct any details. She kept to this story until May 2014, when Ms. M.-P. told Ms. Baronco that in fact, the October 2010 injury happened when she was in the kitchen and Mr. P. was in the bedroom, and she heard the child scream.

Ms. Baronco also noted that during visits with Carlos, Mr. P. would yell at Ms. M.-P. and tell her to remain quiet; Ms. M.-P. had to seek Ms. Baronco out privately in order to ask questions about the child's well-being. Mr. P. repeatedly took pictures of both children during visits and would not accept innocent explanations for scratches they had from time to time, even after being ordered by the Court to stop taking photographs. Additionally, Ms. Baronco testified that Mr. P. would have the one-year-old Carlos say things to her on his father's behalf, including, "Don't fuck with me."

The record is replete with ORT's called in by Mr. P. accusing the foster parents of injuring his children. Ms. Torres, who was Carlos's foster mother from March 22, 2011 until the time she testified on October 31, 2013, stated that throughout the time she cared for the boy, Mr. P. harassed her making unfounded accusations. At one point it was so intolerable that she asked for the child to be re-placed. All of the child's injuries were innocent scrapes from ordinary childhood activities associated with learning to walk and the like.

In a res ipsa case of this nature, when the petitioner presents a prima facie case of abuse, the respondent must come forward with an explanation, though the petitioner retains the burden of proof and persuasion at all times. Family Court Act § 1046(a)(ii); Matter of Phillip M., 82 NY2d 238 (1993). Dr. Miller's testimony combined with the evidence of Ms. M.-P.'s shifting stories concerning the child's injuries amounts to a prima facie case.

Ms. M.-P. testified credibly in her own behalf about the October 2010 injury as well as the earlier May 2010 injury. Regarding the leg injury, she testified that she was in the kitchen while Mr. P. was in the bedroom with Carlos when she heard the child scream. She went to the bedroom and noticed that the child's leg did not look right, and Mr. P. said that he accidentally broke it. On the way to the hospital in a taxi, Mr. P. told her that they would have to lie about what happened — to say that the child accidentally broke his leg in the crib — or else he would call immigration authorities and have her deported. She was reliant on Mr. P. to have her legal residency extended from the two-year visa she had at that time. In her testimony, Ms. M.-P. explained that the initial version of the incident that she gave both to the hospital and child welfare workers was that the child accidentally broke his leg in the crib when both she and Mr. P. were in the bedroom with him; later, she said, under enormous pressure from Mr. P., she started to tell people that only she was in the room at the time and that Mr. P. was at work.

As for the May 2010 injury, Ms. M.-P. credibly testified that the injury actually occurred in New York at the home of Mr. P.'s mother and not in Santo Domingo, and that she was in the kitchen while the child was in a bedroom being supervised by a cousin. She said that she heard the child scream, ran to the bedroom, and saw a bump on the side of his forehead. Ms. M.-P. [*4]explained that she gave a different version to the hospital at the time of the injury because Mr. P. told her to. It makes sense that Mr. P. would believe that the story he fed Ms. M.-P. concerning the May 2010 injury would absolve him of potential liability and was a better story to present to the hospital. A layperson would no doubt believe that if a child were injured in foreign country and then traveled to New York, New York authorities would not be able to prosecute the responsible adult(s).

The argument by petitioner and the attorney for the children that Ms. M.-P.'s testimony is not credible because she left Mr. P. in 2012 and had two years free of his influence during which she could have presented her new story has a certain logic to it. Nevertheless, extracting oneself from the grip of a manipulative, emotionally abusive intimate partner is rarely done in one clean step. The record is filled with persuasive evidence that Mr. P. was such a partner. The fact that Ms. M.-P. left the marital home in 2012 and began to establish a life separate from Mr. P. at that time does not mean that she was emotionally capable at the same moment of disentangling herself from his years of manipulation. Sometimes it is only the crucible of testifying in open court under oath when people are finally able to cleanse themselves from a destructive relationship and the lies of the past. The Court concludes that is the case here.

The only significant factual discrepancy that tends to undermine Ms. M.-P.'s credibility is the assertion in her testimony that she tried to tell Dr. Miller the truth about Carlos's injury but was interrupted by Mr. P., whereas Dr. Miller testified that he spoke to each parent alone. Dr. Miller's testimony on this point is more credible, as it is consistent with sound forensic child abuse investigation practice for the physician to interview each parent separately. Nevertheless, the clear evidence in this case is that Mr. P. exerted significant and overwhelming control over Ms. M.-P. for an extended period of time, placing her in sincere fear of terrible consequences should she not comply with his demands. The Court concludes that he pressured her and influenced her statements to officials even when he was not present.[FN1]

In addition to Ms. M.-P.'s credible explanation under oath in open court for the child's injuries, the Court notes that it has already made a finding against the father, Mr. P., concerning the very same factual allegations which Ms. M.-P. faces (albeit, the finding against Mr. P. was for neglect, not abuse). Given the credibility of Ms. M.-P.'s explanation, the clear record of Mr. P.'s controlling, manipulative behavior, and the finding against him, the Court concludes that Ms. M.-P. is NOT responsible for the injuries to Carlos and therefore is not derivatively neglectful of Carolina. Either Mr. P. caused the injuries, see Matter of Vincent M., 193 AD2d 398, 403 (1st Dep't. 1993) (entering abuse finding against father but dismissing abuse charge against mother based on credible evidence that she was not caring for child at time of injuries), or it was a rare accident. Matter of Jose Luis T., 81 AD3d 406 (1st Dep't. 2011). The petitioner has failed to meet its burden in its case against her.

In light of the foregoing, IT IS HEREBY ORDERED:

Dockets NA-30295/10 and NN-14783/11 are DISMISSED AS TO RESPONDENT CAROLINA P..

Disposition as to Mr. P. has been held in abeyance since he submitted to the Court's jurisdiction on February 11. A dispositional hearing will be conducted in Part 2 on January 22, 2015, at 9:15am. In light of Ms. M.-P.'s status as a non-respondent parent who had de facto custody of the children at the time they were removed, the parties are directed to be prepared to present information concerning her suitability as a release resource. See Family Court Act §§ 1054(a) and 1055(a)(i); see also Matter of Telsa Z., 71 AD3d 1246 (3d Dep't. 2010); In re Sanders, 495 Mich. 394 (2014) (holding unconstitutional state law permitting court to deprive non-respondent parent of custody absent finding of unfitness). In the event Ms. M.-P. files an Article 6 custody petition, the parties are directed to be prepared to present evidence as to the extraordinary circumstances that would justify denying her custody of the children. Bennett v. Jeffreys, Matter of Jessica Marie C., 118 AD3d 601 (1st Dep't. 2014); Matter of Alfredo S., 172 AD2d 528 (2d Dep't. 1991).

Dated: December 23, 2014

_____________________________________

Hon. Erik S. Pitchal Footnotes

Footnote 1:While the Court does not condone Ms. M.-P.'s having lied to Dr. Miller and ACS, there was no evidence presented that her failure to accurately tell them what she knew about the child's injuries caused the child harm, at least not the type that is actionable under Family Court Act Article 10.