Matter of Xavier F. (Yvette E.)

[*1] Matter of Xavier F. (Yvette E.) 2015 NY Slip Op 50959(U) Decided on June 26, 2015 Family Court, Kings County Wan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 26, 2015
Family Court, Kings County

In the Matter of a Proceeding Under Article 10 of the Family Court Act, Xavier F. JOSHUA D., Children Under Eighteen Years of Age Alleged to be Abused by YVETTE E. JOEY F., Respondents.



NA10810-11/12



Attorneys:

Jennifer Sadaka, Esq., Administration for Children's Services, for the petitioner

Ira Goldstein, Esq., for the father

Patricia Carrington, Esq., for the mother

Stephanie Shapiro Marden, Esq., Legal Aid Society, for the children
Lillian Wan, J.

On April 11, 2012, the Administration for Children's Services (hereinafter petitioner) filed an Article 10 petition alleging, inter alia, that the respondent mother, Yvette E., and the respondent father, Joey F. had abused the child, Xavier F. (age 5 months), in that Xavier had been diagnosed with bilateral subdural hematomas and retinal hemorrhaging of the right eye. The petition further alleges that neither parent had an explanation for the child's injuries, and the injuries were consistent with abusive head trauma. The petition also alleges that the subject child, Joshua D. (age 7), is derivatively abused and/or neglected. The fact finding hearing in this matter commenced on April 28, 2014 and concluded on April 7, 2015. The Court ordered counsel to submit written summations.

Based on all the evidence presented, the Court finds that the petitioner has established by [*2]a preponderance of the evidence that the respondent mother and respondent father abused the subject child Xavier as defined under §1012 of the Family Court Act (hereinafter F.C.A.). As a result of the abuse of Xavier, the subject child Joshua is abused or is in imminent danger of being abused, and a derivative finding of abuse is entered.

The petitioner presented the testimony of child abuse specialist Dr. Jamie Hoffman-Rosenfeld (hereinafter Dr. Hoffman-Rosenfeld) and various medical records. The respondents presented the testimony of their own child abuse specialist, Dr. Phyllis Dunn Weiner (hereinafter Dr. Weiner). Both the respondent mother and respondent father testified. Ultimately the court credits the testimony of the petitioner's expert and rejects the testimony of defense expert for the reasons set forth below.

To establish a fact by a preponderance of the evidence means that the petitioner must only prove that the fact is "more likely than not to have occurred." Matter of Beautisha B., 115 AD3d 854 (2nd Dep't 2014); Matter of Katrina W., 171 AD2d 250 (2nd Dep't 1991).

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

inflicts or allows to be inflicted 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.

F.C.A. §1046(a)(ii) provides that proof of injuries to a child that would ordinarily not be sustained in the absence of an act or omission of the caretakers shall be prima facie evidence of abuse or neglect. Therefore, a prima facie case of abuse may be established by evidence of the injury and evidence that the respondents were the caretakers of the child at the time the injury occurred. The statute authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitor. See Matter of Philip M., 82 NY2d 238 (1993). Once the petitioner has established a prima facie case, "the burden of going forward shifts to the respondents to rebut the evidence of parental culpability"; however, "the burden of proving child abuse always rests with the petitioner." Id. at 244. Furthermore, the identity of the individual who abused the child does not have to be established. For example, in Matter of Fantaysia L., 36 AD3d 813 (2nd Dep't 2007), the Appellate Division, Second Department found that the Family Court properly concluded that a prima facie case of sexual abuse was established against both the father and the paternal grandmother in one household, and the mother and the stepfather in a separate household because the three and a half year old child moved between the two households at the time she contracted a sexually transmitted disease. Once a prima facie case has been established, the respondents may rest without presenting any evidence and allow the court to decide the case on the strength of the petitioner's case alone, or the respondents may challenge the prima facie case by presenting evidence (1) that the child was not in the respondent's care at the time the injury occurred; (2) that the injury could reasonably have occurred accidentally; or (3) by countering the evidence of the child's injury or condition. Matter of Philip M., 82 NY2d at 245.

"Self-serving or contradictory denials or unreasonable explanations are insufficient to rebut a prima facie abuse claim." Matter of Benjamin L., 9 AD3d 153 (1st Dep't 2004).

A child does not have to actually sustain a serious injury to justify a finding of abuse as [*3]long as the evidence demonstrates that the respondents placed the child at substantial risk of serious injury. See Matter of Angelique H., 215 AD2d 318 (1st Dep't 1995); Matter of Nassau County Dept. of Social Servs. on Behalf of Joseph H., 191 AD2d 634 (2nd Dep't 1993). Furthermore, expert testimony is not required in order to determine that the injury sustained constitutes abuse under F.C.A. §1012(e). Matter of Matthew O., 103 AD3d 67 (1st Dep't 2012) (finding that evidence of ACS's failure to present expert testimony that the infant's injuries are consistent with the statutory definition of abuse not fatal to establishing a prima facie case of abuse).

The court preliminarily notes that the respondent father, Joey F., is the biological father of the infant Xavier and a person legally responsible for the care of the subject child Joshua in that he was living in the same home as Joshua. It is not disputed that the family composition at the time of the filing of the petition consisted of the mother, Mr. F., the child Xavier, and the child Joshua. As such, the court finds that Mr. F. is a person legally responsible for Joshua pursuant to F.C.A. §1012(g). Matter of Trenasia J., 25 NY3d 1001 (2015). See Matter of Yolanda D., 88 NY2d 790 (1996).

The petitioner established a prima facie case of abuse with the presentation of medical records and the testimony of Dr. Hoffman-Rosenfeld. The Jamaica Hospital records were received into evidence as Petitioner's Exhibit 2. Those records contain Xavier's birth records as well as an emergency room visit on January 28, 2012 at approximately 7:30pm. The birth records note that Xavier was a "well baby boy" with no birth injuries, and his head and neck were reported to be normal. On January 28, 2012, Xavier was two months old and presented with vomiting. The father provided the history to the hospital and he stated he was taking care of the child that evening while the mother was working and after feeding the child Enfamil, Xavier became irritable and was crying. The father noted to hospital staff that Xavier cries a lot and he got worried when Xavier became pale and limp for a few minutes. Xavier was noted to have two episodes of vomiting while in the emergency room and "bloody streaks" were seen in the child's vomit. An emergency department registered nurse also noted that Xavier "threw up bright red blood in small amount." Xavier was given a chest X-Ray at Jamaica Hospital, which was normal, and then discharged back to the parents at approximately 9:56pm.

The medical records of Dr. Habib Nazarian were received as Petitioner's Exhibit 5. Dr. Nazarian was Xavier's regular pediatrician. Xavier was seen by Dr. Nazarian for his one month well baby appointment on December 2, 2011, and for his two month well baby appointment on January 11, 2012. On January 31, 2012, Xavier was brought in to see Dr. Nazarian as a follow up to the Jamaica Hospital emergency room visit. The records indicate that the examination of Xavier's head was normal on that date. Dr. Nazarian referred the baby to a pediatric neurologist to rule out a seizure disorder. On March 14, 2012, Xavier was brought in for his four month immunizations. At that time, Dr. Nazarian entered the note "hydrocephalus in newborn" and made a referral to a neurologist because Xavier's head size had increased 1.5 inches in six weeks and the "anterior fontanel is bulged."

The parents took Xavier to see neurologist, Dr. Li Kan in the end of March 2012, and they also took Xavier to Beth Israel Medical Center on March 28, 2012 for a CT scan of the head. The results of the head CT showed "extra-axial collections along the frontal convexities which are nonspecific and may be compatible with subdural hemorrhages." Dr. Kan further noted that [*4]the ultrasound and the CT scan done of Xavier's head were highly suspicious for chronic subdural hematoma. Dr. Kan also noted that Xavier's head circumference was normal at birth, but had jumped to over the 95th percentile by the time he was four months old. Dr. Kan conferred with the radiologist at Beth Israel Hospital and noted that both he and the radiologist agreed to sending Xavier to the emergency room for further evaluation by a neurosurgeon. The parents took Xavier back to the pediatrician, Dr. Nazarian, on March 29, 2012. At that appointment, Dr. Nazarian recommended that the baby be taken to the hospital for "surgical intervention ASAP."

The North Shore LIJ Medical Center records (hereinafter LIJ records) were received into evidence as Petitioner's Exhibit 3. The records detail Xavier's hospital admission from April 2, 2012. At that time, Xavier, age four months, underwent an MRI which confirmed the presence of subdural hematomas. An ophthalmology consult was also done on April 3, 2012, and the ophthalmologist reported a finding of a retinal hemorrhage in the right eye. Xavier was admitted by pediatric neurosurgeon, Dr. Mark Mittler, for surgery to drain or evacuate the subdural hematomas. Xavier's surgery required general anesthesia and the drilling of bilateral burr holes to drain the subdural fluid. Dr. Mittler described the risks of the surgery to the parents, which included, but were not limited to, infection, bleeding, stroke, permanent neurological deficit, need for further surgery, and even death.

At approximately 8:00am on April 4, 2012, Dr. Hoffman-Rosenfeld performed a child abuse consult where she examined the child and interviewed both parents. The parents both reported that at the third pediatric primary care visit, the pediatrician said that Xavier's head size was increasing and made a referral to a pediatric neurologist. The parents denied any trauma to the infant or any fall. The parents also stated that the baby was not left alone with the seven year old brother, the subject child Joshua. During the interview, the respondent father reported to Dr. Hoffman-Rosenfeld that there was one incident where the baby was crying followed by limpness and he called 911. Dr. Hoffman-Rosenfeld noted that this history could be consistent with an event of inflicted trauma by shaking. After the surgery, Xavier remained at the hospital until April 13, 2012, at which time Xavier was discharged to ACS. On June 6, 2012, after Xavier was placed in foster care, he was again admitted to LIJ Medical Center for a surgical procedure to insert a left subdural to peritoneal shunt in order to drain subdural fluid. Dr. Mittler, who continued to see Xavier for follow up appointments after the April 4th surgery, reported that Xavier continued to have head enlargement, that his fontanelle was significantly distended, and repeat imaging study revealed an enlargement of the subdural space.

Dr. Hoffman-Rosenfeld testified on the petitioner's direct case as well as on the petitioner's rebuttal case. Dr. Hoffman-Rosenfeld was qualified as an expert in pediatrics and child abuse. Dr. Hoffman Rosenfeld is a child abuse pediatrician and employed by the North Shore Long Island Jewish Health System as the child abuse consultant and as the medical director of the Queens Child Advocacy Center. Dr. Hoffman-Rosenfeld has been board certified in pediatrics since 1989 and board certified in the sub-specialty field of child abuse pediatrics since 2009. Dr. Hoffman-Rosenfeld regularly examines children from birth to eighteen years of age, and most of her pediatric cases involve infants. Dr. Hoffman-Rosenfeld does child abuse evaluations and makes diagnoses and recommendations. Dr. Hoffman-Rosenfeld testified that Xavier was admitted to LIJ Cohen Children's Medical Center on April 2, 2012 and she was called [*5]on April 3, 2012 by pediatric neurosurgeon, Dr. Mark Mittler, to do a child abuse evaluation after neuroimaging or MRI revealed a subdural hematoma, a blood collection in the subdural region of the brain. Xavier was also diagnosed with macrocephaly, or a large head, and an intra-retinal hemorrhage in the right eye. Dr. Hoffman-Rosenfeld detailed the procedures that she follows when making a determination on a child abuse evaluation. She stated that she reviews all available emergency room records, EMS reports, hospital records, and specifically reviews imaging with a radiologist. She also stated that she talks to the medical team (which in this case included the pediatric nurse and Dr. Mittler), speaks to specialists (such as the ophthalmologist in this case) to review what testing needs to be done, examines the child, and takes a medical history from parents. In the instant case, Dr. Hoffman-Rosenfeld also reviewed Xavier's birth records, Dr. Habib Nazarian's records, the Jamaica Hospital records, and Dr. Li Kan's records.

Dr. Hoffman-Rosenfeld examined Xavier and interviewed both the respondent mother and the respondent father on the morning of April 4, 2012. She took a comprehensive history which included asking both parents about past medical history, any episodes of trauma, developmental history and social history, including who cares for the child. Dr. Hoffman-Rosenfeld stated that the baby was full term with no complications at delivery, there was no direct history of any traumatic event, and no history of any fall or drop. Both parents reported that the baby was noted to have an increasing head circumference, and that was the reason for evaluation by a pediatric neurologist. During the interview, the father recounted an incident in January 2012 where he was having difficulty getting the baby to take a bottle, the baby was crying and his face became red, and the baby suddenly became limp and pale for a few minutes. Dr. Hoffman-Rosenfeld's notes from the interview reveal that the respondent father described Xavier as "screaming his lungs off." The baby was also vomiting at home. The father called 911, and the baby was evaluated at Jamaica Hospital. In conducting her evaluation, Dr. Hoffman-Rosenfeld performed various tests to determine if there was an organic cause for the subdural hematomas. This included an extensive panel of hematologic tests designed to look for bleeding and coagulation abnormalities such as hemophilia and factor deficiencies. These tests all came back normal. Tests for inherited metabolic disease also came back normal.

Dr. Hoffman-Rosenfeld reviewed Xavier's CT scan from a week prior to the surgery, and she also reviewed Xavier's MRI with the chief of neurology, Dr. Alan Johnson. She described Xavier's subdural hematomas as widespread and not localized because there was bleeding found in the frontal, parietal, and temporal regions of the brain. Dr. Hoffman-Rosenfeld further stated that Xavier had a hemorrhage in the inner hemispheric fissure, which is the groove that separates the left and right hemispheres of the brain. Dr. Hoffman- Rosenfeld explained that subdural hematomas could be the result of two different kinds of head injury. The first is an impact type injury where something hits the head or the head hits something, which would be characterized by a localized subdural. The second is from acceleration, deceleration forces where the head moves back and forth through space, and the brain moves in the bony box which causes tension and shearing on the blood vessels, and results in more widespread subdural hematomas. Dr. Hoffman-Rosenfeld clarified that this can occur with shaking type force such as an infant being held and shaken so that the head is whipped back and forth, or impact against a soft surface such as a baby being shaken and then thrown so that the head strikes a pillow or soft mattress. Dr. Hoffman-Rosenfeld also described that inertia forces may result from motor vehicle crashes or [*6]from falls from high heights, such as falls out of windows. Dr. Hoffman-Rosenfeld testified that Xavier's widespread subdural hematomas were characteristic of acceleration, deceleration forces.

In terms of dating the subdural hematomas, Dr. Hoffman-Rosenfeld characterized them as "subacute to chronic." Dr. Hoffman-Rosenfeld clarified that the dating of subdural hematomas is not an exact science, but identified that "subacute to chronic" means "a few weeks to many weeks or even months." Furthermore, the fluid that was removed from Xavier's brain as a result of the surgery was consistent with what Dr. Hoffman-Rosenfeld saw on the CT scan and the MRI. She agreed on cross examination that the fluid was in fact "old" and that she would expect it to be "old" based on the imaging.

Dr. Hoffman-Rosenfeld further testified that Xavier had an ophthalmologic examination and was diagnosed with a retinal hemorrhage in the right eye. Dr. Hoffman-Rosenfeld explained that many different layers make up the retina and there are blood vessels that run through the retina. A retinal hemorrhage is blood that has escaped from a blood vessel that is in the retina itself. Xavier's retinal hemorrhage was in one single retinal layer. Dr. Hoffman-Rosenfeld relayed that some of the same things that can cause subdural hemorrhage in infants can also cause retinal hemorrhaging in infants. The causes include the normal birth process, coagulation abnormalities, blood abnormalities, leukemia, anemia, and trauma such as severe height falls, motor vehicle crashes, falls from household heights such as from the basement landing to the bottom, and some low height falls with impact to the back of the head. In Xavier's case, there was no underlying cause that would explain a retinal hemorrhage.

With regards to Xavier's head growth, Dr. Hoffman-Rosenfeld noted that Xavier's head circumference at birth was on the twenty-fifth percentile and by four and a half months, it was well over the ninety-fifth percentile. Dr. Hoffman-Rosenfeld opined that this was not a normal head growth velocity.

Dr. Hoffman-Rosenfeld further testified that the signs and symptoms of abusive head trauma are very variable because there is a broad spectrum of severity. Symptoms on the mild end of the spectrum would be subtle signs, such as fussiness, irritability, vomiting, or change in sleep patterns. On the severe end of the spectrum, symptoms include not breathing, seizures, loss of consciousness, coma, cardiopulmonary arrest, or death. Dr. Hoffman-Rosenfeld further stated that there could be a combination of those symptoms along that spectrum.

Dr. Hoffman-Rosenfeld concluded that given the constellation of historical factors and physical findings, which included the presence of widespread subdural hematomas in multiple regions of the brain that required evacuation surgery, a retinal hemorrhage, and a past history of an episode of acute unresponsiveness, that the baby was referred for evaluation for an abnormally large head, and that genetic or medical reasons for these injuries were ruled out, that it is more likely than not that the child experienced at least one episode of abusive head trauma.

The petitioner has established by a preponderance of the evidence that the subject child Xavier sustained physical injuries that would ordinarily not occur absent an act or omission of the respondents. These injuries necessitated brain surgery which carried the risk of death or permanent impairment. Furthermore, the injuries occurred while Xavier was residing in the continuous care of both his parents, and neither parent had an explanation for Xavier's injuries. Once the petitioner establishes its prima facie case, the burden of going forward then shifts to the respondents to provide a reasonable and acceptable explanation for these injuries. The court [*7]finds that the respondents failed to rebut the presumption of parental culpability.

The respondents case consisted of the testimony of Dr. Weiner and the respondents' testimony. Dr. Weiner was called as a witness by the respondent father. Dr. Weiner was qualified as an expert in pediatrics and child abuse. Dr. Weiner acknowledged that Xavier was diagnosed with subdural hematomas. Dr. Weiner further testified that based on her review of the records, there was no diagnosis of a retinal hemorrhage until April 6, 2012, two days after Xavier's surgery.

Dr. Weiner agreed with Dr. Hoffman-Rosenfeld that the fluid removed at surgery was not fresh blood and was "at least weeks" old. Dr. Weiner concluded that there is nothing that supports the diagnosis of abusive head trauma or shaken baby syndrome, and that it is more likely than not that Xavier had a condition known as benign subarachnoid space enlargement, which is an expanding head size. She further explained that benign subarachnoid space enlargement could lead to a subdural hematoma because the blood vessels that go from the brain to the collecting sinuses of the dura are stretched by the fluid that accumulates between the surface of the brain and the inner table of the skull, and normal movement can cause a vessel to leak or break. Dr. Weiner further opined that the vessels could even rupture spontaneously because of the pressure of the accumulating fluid. Dr. Weiner indicated that this is not considered a rare condition but it usually goes undetected and unnoticed. Throughout the many decades of her career, Dr. Weiner has only diagnosed this condition "two or three" times before.

In coming to this conclusion, Dr. Weiner stressed that Xavier did not have a skull fracture, his skeletal survey was negative, there were no bruises noted on Xavier, there was no contusion of the spinal chord, Xavier had consistent pediatric care with a primary care provider, there were no retinal hemorrhages, and Xavier was playful, responsive and alert in all the records she reviewed. Dr. Weiner further noted that there are no risk factors present in the respondents. On cross examination, Dr. Weiner acknowledged that "[i]f you're talking about shaken baby syndrome, there may be no bruises..." She also conceded that a contusion of the spinal chord is not always present. With regards to retinal hemorrhages, Dr. Weiner stated that in her experience with cases of shaken baby syndrome, multiple multi-layered retinal hemorrhages that go all the way out to the peripheral of the retina, are present. This was not the case with Xavier. Dr. Weiner conceded that she never met with or examined Xavier. She also never interviewed the parents.

While Dr. Weiner was qualified as an expert in pediatrics and child abuse, the court is not compelled to credit the expert's reliability as a matter of law, and the Family Court can reject an expert's testimony. See Matter of Christine F., 127 AD2d 990 (4th Dep't 1987); Matter of Anthony YY., 202 AD2d 740 (3rd Dep't 1994). Where competing medical experts present different or conflicting conclusions, the finder of fact is charged with assessing the credibility of the witnesses and the weight to be accorded to each expert. See Gray v. McParland, 255 AD2d 359 (2nd Dep't 1998); People v. Hamilton, 186 AD2d 581 (2nd Dep't 1992).

In the instant case, the petitioner's expert was a treating physician for the child. Notably, respondent's expert was retained for the purposes of litigation and testified based on her review of the available records, and never examined the child. See Matter of Ameillia RR., 112 AD3d 1083 (2nd Dep't 2013).

The court credits the testimony of the petitioner's expert, Dr. Hoffman-Rosenfeld and [*8]further finds that the testimony of respondent's expert, Dr. Weiner, was incredible and biased and must be rejected by the court. The attorney for the children and the petitioner point out in their summations that Dr. Weiner's testimony has been rejected both by this Court and another Family Court on prior cases. In Matter of John W., 7 Misc 3d 1020(A) (Queens County Family Court 2004), the Family Court found that Dr. Weiner was biased and acting as the respondent's advocate, instead of an expert testifying on the respondent's behalf. In John W., the Court found that Dr. Weiner's testimony that 200 of the infants that she treated in any given year for an ear infection were hospitalized for dehydration was patently incredible on its face. In Matter of Maria S., 43 Misc 3d 1218(A) (Kings County Family Court 2014), Dr. Weiner asserted that babies who have normal bone strength can sustain femur fractures without their parents noticing, through ordinary handling, such as being brushed up against someone while being held, or when the parent bends down with the baby in a Baby Bjorn baby carrier. This Court found that to be incredible and against the weight of the evidence. Furthermore, in Maria S., this Court found that Dr. Weiner repeatedly minimized the injuries that a young infant sustained, referring to an infant's skull fracture as a "very minor fracture" that was "short and tiny." Dr. Weiner also insisted that based on her review of the medical records in Maria S., that the infant did not have a torn frenulum, however the medical records clearly noted that the child did have a torn frenulum.

In the instant matter, Dr. Weiner's review of the LIJ records appears to be deficient in several respects. Most significantly, Dr. Weiner opined, based on her review of the medical records, that it was the surgery and drilling of two burr holes in Xavier's skull that caused the retinal hemorrhage and she did not see any notation in the medical record of a retinal hemorrhage prior to the surgery on April 4, 2012. Dr. Weiner stated that she only recalled an April 6, 2012 ophthalmology examination of the child. Dr. Weiner was asked on cross examination:

"Isn't it true that the records reflect that the retinal hemorrhage was found prior to the surgery?"

Dr. Weiner responded:

"Not the records that I read."

This is simply incorrect. This is contradicted both by the medical records and the testimony of Dr. Hoffman-Rosenfeld who was part of the treatment and evaluation team. The court's plain review of the LIJ records demonstrates that the retinal hemorrhage was diagnosed prior to the surgery. The first notation of a retinal hemorrhage was on April 3, 2012, at 11:00am. Dr. Suther performed an ophthalmology consult and noted a retinal hemorrhage in the right eye. Furthermore, when Dr. Hoffman-Rosenfeld performed her child protection consult on April 4, 2012, she noted in her consultation report that she explained to the parents that inflicted injury must be considered when there are subdural hemorrhages with the absence of any history of trauma, and that in the presence of the child's retinal hemorrhage, the concern of abusive head trauma is greater. Xavier's surgery did not begin until approximately 2:09pm on April 4, 2012.

Dr. Hoffman-Rosenfeld was also clear in her testimony that the retinal hemorrhage was diagnosed on April 3, 2012. Dr. Hoffman-Rosenfeld explained, on rebuttal, that she examined Xavier at approximately 8:00am on April 4, 2012. She noted that Xavier had been examined by an ophthalmology resident on the morning of April 3, 2012, and at that time, the retinal hemorrhage was seen and it was later confirmed by the ophthalmology attending physician.

Dr. Weiner also minimized Xavier's injuries consistently throughout her testimony, which [*9]made her less credible. She characterized the retinal hemorrhage that was found, in her view after the surgery, as a "speck" of retinal hemorrhage. Dr. Weiner stated that this is how the retinal hemorrhage was referred to in the LIJ records, however this court, in its review of the medical records, has not seen the word "speck" mentioned in the records. The retinal hemorrhage is described as a "small retinal hemorrhage" and as a "single intra-retinal hemorrhage" but not a "speck." Furthermore, while Dr. Weiner acknowledged that Xavier's subdural hematomas were found in the frontal, parietal, and temporal regions of the brain as well as in the inner hemispheric fissure, she denied that they were widespread, and emphasized that they were localized because it was all in the frontal area of the brain.

With regards to Xavier's symptoms on January 28, 2012 that led to the Jamaica Hospital emergency room visit, it was Dr. Weiner's opinion that he was not experiencing symptoms of abusive head trauma. She acknowledged that going pale and limp as well as vomiting with streaks of blood could be part of abusive head trauma if it was accompanied by a changing cry, listlessness, lethargy, poor feeding, lack of alertness, however she arrived at the conclusion that it could not have been abusive head trauma because Xavier was alert, had a good cry and a good suck, was moving all extremities and basically in good condition. Dr. Weiner classified Xavier's symptoms, including the blood streaked vomit, vomiting bright red blood, and going limp and pale, as "normal infant behavior." She testified that these symptoms are consistent with reflux.

Dr. Hoffman-Rosenfeld disagreed with Dr. Weiner's opinion that Xavier's symptoms on January 28, 2012, were consistent with reflux. Dr. Hoffman-Rosenfeld testified that it is unlikely that reflux, which is very common in infants and basically means "spitting up," would cause an episode of unresponsiveness and require a 911 call. The doctor further noted that reflux did not continue to be an ongoing and significant problem for Xavier after that, and it was not mentioned as part of the history when she interviewed the parents in April 2012. Furthermore, it is significant to note that the respondent mother testified that she did not have problems feeding Xavier his formula and that prior to January 28, 2012, she never noticed Xavier vomit when eating. She also testified that even from January 28, 2012, up until his hospital admission on April 2, 2012, she had seen Xavier spit up but he would not vomit. In Dr. Hoffman-Rosenfeld's opinion, Xavier's symptoms on January 28th were "compatible with symptoms that a baby might have after they've experienced an incident of abusive head trauma." Dr. Hoffman-Rosenfeld further noted in the medical records that it "could be consistent with an event of inflicted trauma by shaking (acceleration/deceleration)." Dr. Hoffman-Rosenfeld also testified that it is possible for a child to be undiagnosed for abusive head trauma, and that many children never come to medical attention and many never come to a diagnosis.

In rejecting a diagnosis of abusive head trauma, Dr. Weiner seemed to place a significant amount of weight on the fact that Xavier did not have any bruising or swelling on the scalp or head, and that Xavier was described as playful and alert. In direct contrast, Dr. Hoffman-Rosenfeld emphasized that the absence of bruising or swelling on the scalp in association with intracranial injury is a marker for abusive head trauma and that bruises or swelling are more commonly found in accidental head trauma. Dr. Hoffman-Rosenfeld further noted that she agreed that Xavier was alert and playful on April 4, 2012, but it was her opinion that babies do recover from abusive head trauma, and Xavier's presentation is compatible with the picture of a child who has suffered from an episode of abusive head trauma in the past and who has [*10]recovered.

Dr. Weiner also testified that based on her review of the hospital records, the condition of benign subarachnoid space enlargement or expansion was not considered and that in her opinion,

[t]here was no thinking toward what could have created this situation. The thinking ended with there's a subdural and a single retinal hemorrhage, it's concerning for abuse... end of story."

This statement is directly contradicted by the medical records and the testimony of Dr. Hoffman-Rosenfeld. Dr. Hoffman-Rosenfeld was a highly credible witness and she testified objectively in detail to her methodology in evaluating this child. In contrast, Dr. Weiner does not regularly examine patients. She stated that she is essentially retired from general practice and has confined her private practice to friends and relatives. She further acknowledged that she has not seen a patient that exhibited symptoms of abusive head trauma in ten years.

Dr. Hoffman-Rosenfeld's evaluation was thorough, included the review of all available medical records, discussions with specialists, interviews of the parents, and included a battery of tests to rule out any organic causes for Xavier's condition. According to Dr. Hoffman-Rosenfeld, she considered benign subarachnoid space enlargement when doing her evaluation of Xavier. Dr. Hoffman-Rosenfeld testified that there are several names for this condition including "benign hydrocephalus," "benign enlargement of the subarachnoid spaces," and "benign expansion of the subarachnoid spaces," but they are all referring to the same condition. Dr. Hoffman-Rosenfeld explained that this is when a baby's head grows too rapidly, and either an MRI or CT scan shows a subarachnoid space filled with cerebral spinal fluid, which is larger than it should be. She further stated that this is generally a benign condition in babies caused by the immaturity of the baby's system, and that it resolves on its own as the system matures. According to LIJ records, it is also clear that Dr. Hoffman-Rosenfeld considered benign subarachnoid space enlargement in her assessment. She noted that in her child protection consult note on April 9, 2012 at 9:00am:

[w]hile enlarged subarachnoid space, i.e. external hydrocephalus, may predispose to some bleeding in adjacent subdural spaces it would not explain the retinal hemorrhage. This constellation of findings is very concerning for trauma and suspicious for abusive head trauma.

Both Dr. Weiner and Dr. Hoffman-Rosenfeld testified that retinal hemorrhages are present in 85% of the cases of abusive head trauma, and that retinal hemorrhages are not present in 15% of the cases. Dr. Hoffman-Rosenfeld acknowledged literature that has suggested that benign subarachnoid space enlargement could possibly predispose a child to developing a subdural hematoma, and she did consider this in evaluating the child, however she was clear that subarachnoid space enlargement would not cause retinal hemorrhages. She emphasized that a retinal hemorrhage is a marker for trauma and the she would not make a diagnosis of benign subarachnoid space enlargement in the presence of a retinal hemorrhage.

Dr. Weiner opined that even if the retinal hemorrhage was diagnosed before the surgery, the increased intracranial pressure in Xavier's head could have caused the retinal hemorrhage. Dr. Weiner went on to testify that the intracranial pressure is the reason why Xavier's head expanded so rapidly after the fourth month. When discussing the causes of retinal hemorrhages, Dr. Hoffman-Rosenfeld stated that intra-cranial pressure was about fifteenth down on the list of the many things that could cause a retinal hemorrhage, but she clarified that it is rapid acute, [*11]sudden increase intracranial pressure, not the type of increased pressure that could be associated with benign subarachnoid space enlargement. Dr. Hoffman-Rosenfeld gave examples of sudden massive intracranial hemorrhage like an aneurysm or "TV topple" cases where a television fell on the baby's head, or "massive crush" injuries. While Dr. Hoffman-Rosenfeld acknowledged that the severity of the retinal hemorrhages does correlate with the severity of abusive head trauma, she highlighted that fifteen percent of cases of abusive head trauma do not have retinal hemorrhages, and retinal hemorrhages can clear very quickly, sometimes within hours to days, so if there was an event that happened weeks before, the full extent of the retinal hemorrhages would not be seen. Dr. Hoffman-Rosenfeld stated that you cannot date a retinal hemorrhage, and that Xavier's single retinal hemorrhage could have been what was left after resolution of a much more significant pattern of multiple retinal hemorrhages. Furthermore, Dr. Hoffman-Rosenfeld stressed that the absence of retinal hemorrhages does not preclude the ability to make a diagnosis of abusive head trauma.

Both respondents testified at the fact finding hearing. Their testimony was self-serving, and neither parent had a reasonable explanation for Xavier's injuries. The respondent father testified that he loves Xavier and has never seen anyone hurt or mishandle Xavier. The father indicated that prior to the filing of the petition, that he was working for a food company in Long Island in the shipping and receiving department and his hours were 7:00am to 4:00pm. The father stated that the babysitter, Laura watched the baby when the mother and father were at work, and he had no concerns about Laura's care of Xavier. The father further explained that on Saturday, January 28, 2012, he was alone in the home with Xavier and he was feeding Xavier a bottle in his arms. The respondent mother was at work. He stated that Xavier did not want to take his milk and was crying. The baby threw up twice while the father was holding the baby. He further stated that "[h]e just did this big loud scream and just passed out on me." The father further described that Xavier went limp on his arm while he was holding him and burping him, and that Xavier was barely breathing. The respondent father called 911 and then waited. The father stated that he placed the baby on the bed on his back and the baby remained non responsive. The father stated that he was trying to get a response from Xavier by lifting up his hands and they "just kept dropping." The respondent father also clarified that the ambulance took under ten minutes to arrive and the baby remained non responsive during that time. He described Xavier as gasping for air. He stated that the baby did not wake up until he was inside the ambulance truck. The father had no explanation for the subdural hematomas or the retinal hemorrhage.

The respondent mother testified that after Xavier was born, she took about two months off from work and then went back to work in or about February 2012. Her works hours were approximately 10:00am to 4:00pm. She confirmed that the father also worked Monday through Friday from 8:00am until 3:00pm or 4:00pm. The mother stated that the babysitter, her friend Laura Malpica, watched Xavier when the parents were both working. The mother never had any concerns about the care that Xavier was receiving with Laura. The mother further stated that she went to work around 9:30am on Saturday, January 28, 2012, and received a phone call from the father that the baby was not breathing and that he was calling 911. She left work at approximately 6:00pm or 7:00pm to go to the hospital. The mother denied ever doing anything to Xavier to hurt him, and she did not know what caused his injuries. She further stated that she [*12]has never seen the father or her son Joshua do anything to injure Xavier. The mother had no concerns about the care that Xavier was receiving with his father and she never saw the father shake Xavier. When asked if she has an explanation for how Xavier sustained these injuries, the mother responded "I have no idea what happened with the baby."

Counsel for the mother suggests in her summation that Xavier's babysitter Laura was not fully investigated by Dr. Hoffman-Rosenfeld or ACS, and there may be other plausible events that could have explained the child's injuries. This argument is unavailing. The mother and father both testified that they were never concerned with the care that Xavier received from Laura and they had no reason to believe that she would injure the child. The parents also both testified that they continued to use Laura as a babysitter after Xavier's emergency room visit to Jamaica Hospital up until the child's removal. Attempts of respondents to implicate each other or other individuals are not sufficient to rebut the prima facie case of abuse. See Matter of Brayden UU., 116 AD3d 1179 (2nd Dep't 2014); See Matter of Matthew O., supra; Matter of Seamus K., 33 AD3d 1030 (3rd Dep't 2006). In Matter of Brayden UU., the Second Department upheld the Family Court's finding of abuse in a case involving a five month old immobile infant who sustained a skull fracture and intracranial bleeding. The court found that the medical testimony established that the damage to the child's skull and brain was caused by significant force and could not have been accidentally caused in the manner suggested by the respondents. The court rejected the respondents' argument that other people who also cared for the child could have caused the injuries. Furthermore, it is not possible for the court to discern which parent is actually responsible for the child's injuries since neither parent admits to any wrongdoing. Matter of Seamus K., 33 AD3d at 1033.

In the instant case, neither respondent submitted evidence to establish that the injuries were sustained at a time where respondents were not caring for the child. Matter of Matthew O., supra; Matter of Seamus K., supra. Both parents were the primary caretakers of Xavier, and he suffered these injuries while he was in both their care.

During the course of the trial, counsel for the respondent father asked the court to enter a missing witness charge against the petitioner for their failure to call the child's treating pediatrician, Dr. Nazarian, as a witness. A negative inference or a missing witness charge is only appropriate if the uncalled witness would provide material, non-cumulative testimony and is under the control of and available to the opposing party. See Matter of Spooner-Boyke v. Charles, 126 AD3d 907 (2nd Dep't 2015); Matter of Adam K., 110 AD3d 168 (2nd Dep't 2013). The record before the court does not support such an inference or charge.

F.C.A. §1046(a)(I) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of...the respondent." The Second Department has stated that the focus of the inquiry in cases of derivative abuse or neglect "is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood." Matter of Dutchess County Dept. of Social Servs. on Behalf of Douglas E., 191 AD2d 694 (2nd Dep't 1993). Proof of injury to the sibling of the directly abused child is not necessary to sustain a derivative finding. See e.g., Matter of Anthony S., 280 AD2d 302 (1st Dep't 2001); Matter of Quincy Y., 276 AD2d 419 (1st Dep't 2000). The court notes that Joshua was seven years old at the time of the filing of the petition. Based on the evidence that the infant Xavier sustained serious physical injuries, [*13]including subdural hematomas and a retinal hemorrhage, that were deemed consistent with inflicted abusive head trauma and the respondents were responsible for the injuries sustained, the court finds that the respondents have such a fundamental defect in their understanding of parenting duties that it creates a substantial risk of harm to any other child in their care. Accordingly a derivative finding of abuse is warranted as to the child Joshua.

Finally, the court notes that the Article 10 petition contains an additional allegation that the respondents failed to provide adequate medical care for Xavier. The summation of the petitioner seeks only a finding of abuse based on the physical injuries that Xavier sustained. The petitioner does not seek a separate finding of medical neglect. Furthermore, while Dr. Nazarian's records contain some follow up phone calls to the parents in February 2012 to ascertain if they took Xavier to the neurologist, this in of itself is insufficient to sustain a separate finding of medical neglect. Since the record before the court does not support a finding that the respondents failed to provide adequate medical care for Xavier, that count of the petition is dismissed.

DATED: June 26, 2015

_________________________________Hon. Lillian Wan