Matter of Yahmir G. (Tanisha N.)

[*1] Matter of Yahmir G. (Tanisha N.) 2015 NY Slip Op 51255(U) Decided on August 7, 2015 Family Court, Bronx County Hettleman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2015
Family Court, Bronx County

In the Matter of Yahmir G. (DOB 7/3/2014), Nahzzear G. (DOB 1/11/2012), Jahniya W. (DOB 5/30/2007), Elyjah W. (DOB 1/20/2005), Children Under Eighteen Years of Age Alleged to Be Abused and Neglected by Tanisha N., Respondent.



NA XXXX-X/14



For the Administration for Children's Services:

Siobhan McHale, Esq.

Bronx Family Court Legal Services

NYC Administration for Children's Services

900 Sheridan Avenue, 6th Floor

Bronx, New York 10451

For the Respondent Mother:

Erin Cloud, Esq. and Scott Constantine, Esq.

Family Defense Practice

The Bronx Defenders

360 E. 161st St.

Bronx, New York 10451

For the Children Yahmir and Nahzzear:

Melinda Oliver, Esq. 910 Grand Concourse No.1C

Bronx, New York 10451

For the Children Jahniya and Elyjah:

Jesse Diamond, Esq.

Legal Aid Society — Juvenile Rights Practice

900 Sheridan Avenue 6C-12

Bronx, New York 10451
Robert D. Hettleman, J.

In this case, I held a combined hearing, encompassing both (1) a fact-finding trial on the allegations in the Article 10 petition and (2) a hearing on the Respondent Mother's application, pursuant to Family Court Act §1028, for the return of the two older children, Jahniya and Elyjah. For the reasons described below, I find that all four children are neglected and abused by their mother under various counts in the petition, and I also deny the §1028 application.[FN1] However, I find that ACS has not proven, by a preponderance of the evidence, the allegation of excessive corporal punishment, nor have they established, by clear and convincing evidence, that the mother's actions constituted "severe abuse" under Social Services Law §384-b(8)(i).

I. PROCEDURAL POSTURE

The Administration for Children's Services ("ACS") filed this abuse petition on July 24, 2014, alleging that the Respondent Mother, Ms. Tanisha N., abused and neglected her children by (1) burning the hands of the then two-year-old child Nahzzear with boiling water on or about July 23, 2014, causing severe burns requiring hospitalization; (2) failing to seek proper medical treatment for those burns for a period of several hours; (3) using excessive corporal punishment on then seven-year-old Jahniya by hitting her with a belt and causing marks to her arm in June of 2014; (4) failing to meet and follow up with the educational needs of Elyjah and Jahniya; and (5) derivative abuse and neglect of all of the children for each of these allegations. In addition, ACS served notice that they sought a finding of "severe abuse" under FCA §1012(e) and SSL §384-b(8)(i), asserting that Ms. N.'s actions relating to the burns of Nahzzear evinced a depraved indifference to human life and caused Nahzzear to suffer a serious physical injury.

At intake on July 24, 2014, I remanded the younger children, Nahzzear and then three-week-old Yahmir, to the care and custody of ACS, and I issued no decision about the status of the two older children, Jahniya and then nine-year-old Elyjah. On July 25, 2014, ACS began a hearing, pursuant to §1027, seeking a remand of the two older children, but the hearing did not finish on that day and continued on July 30, 2014. While the §1027 hearing was pending, I [*2]permitted Jahniya and Elyjah to remain with Ms. N, with several safety conditions and orders in place. On August 1, 2015, with the §1027 hearing scheduled to continue, Ms. N and her attorney withdrew their opposition and consented to the remand of Jahniya and Elyjah. I then remanded those two children to the care and custody of ACS, finding an imminent risk of harm should they return to their mother's care, based upon the evidence relating to (1) the burns to Nahzzear, including Ms. N.'s wholly implausible explanation for how they occurred; (2) Ms. N. having improperly influenced the child Jahniya in order to prevent her from speaking with the investigating authorities; (3) Ms. N. refusing to permit ACS to inspect her bedroom, in direct violation of my order that ACS visit and examine the home while the §1027 hearing was pending; (4) Ms. N. refusing to identify an adult male who was in the home when ACS came to visit during the pendency of the §1027 hearing; and (5) Ms. N.'s apparent and obvious difficulty with impulse control and despondency, both of which were displayed before me and ACS in the days following the filing of the case.

On December 18, 2014, we began a combined fact-finding trial and §1028 hearing — the fact-finding for the allegations in the petition, and a §1028 seeking the return of only Jahniya and Elyjah. The combined hearing continued on January 8, 2015; February 6, 2015; February 9, 2015; March 19, 2015; March 24, 2015; April 16, 2015; April 22, 2015; April 23, 2015; April 28, 2015; and May 4, 2015. On May 4, the attorneys gave their summations relating only to the fact-finding portion of the case; and on May 11, 2015, ACS offered into evidence one additional document for the §1028 portion of the case only, and the attorneys summed up on the §1028 hearing.

II. WITNESSES AND EVIDENCE AT THE COMBINED HEARING

At the hearing, ACS called the following witnesses: (1) Ms. Marjorie Pope, a school nurse at Jahniya's school; (2) Ms. Shanika Johnson, Jahniya's first grade teacher; (3) Mr. Laquan Graham, Elyjah's second grade teacher; (4) Dr. Lara Gordon, a physician and expert in burns and child abuse from Cornell Weill Hospital in Manhattan; (5) Mr. Daniel Barckhaus, a supervisor from the foster care agency, Abbott House; (6) Ms. Patricia Gerlak, a child protective specialist ("CPS") at ACS; (7) Ms. Kadijah Austin, a case planner at Abbott House; and (8) Ms. N., the respondent mother.

In addition, ACS introduced the following exhibits into evidence: (1) the subject children's birth certificates; (2) school records for Jahniya; (3) school records for Elyjah; (4) a curriculum vitae for the expert witness, Dr. Lara Gordon; (5) pictures of the child Nahzzear's burns taken at the hospital; (6) a Permanency Hearing Report from February 6, 2015; a report from Abbott House dated February 6, 2015; and reports from service providers from January and February of 2015 ( for the §1028 hearing only); (7) a report from a service provider dated January 22, 2015 (§1028 only); (8) medical records for Nahzzear from Cornell Weill Hospital; (9) Orders of Fact-Finding, Disposition, and Permanency from 2013, relating to Ms. N.'s prior Article 10 case, Dkt. NN-02888-90/12; (10) a mental health evaluation of Ms. N. done by the Court's Mental Health Services, from February of 2015 (§1028 only); (11) a report from Dr. Terri Houston, dated April 16, 2015 (§1028 only); (12-14) mental health reports relating to Jahniya and Elyjah (§1028 only); (15) a letter from Ms. N.'s service providers (§1028 only); and [*3](16) an email from Dr. Houston (§1028 only).

Ms. N. stated that she would call only one witness, Dr. Terri Houston, a therapeutic visitation resource and an expert in psychology, but she withdrew this witness on the last day of the §1028 hearing in favor of Petitioner's Ex. 16, the email from Dr. Houston. Ms. N. also introduced the following exhibits into evidence: (A) pictures of bug bites on the child Jahniya (§1028 only); (B) a certificate verifying that Ms. N. completed a parenting program, dated December 22, 2014 (§1028 only); and (C) a picture of medical supplies Ms. N. claimed she purchased in order to treat Nahzzear's burns on the day of the incident.

The attorneys for the children did not call any witnesses or introduce any exhibits.

III. FINDINGS AND ANALYSIS

A. The Combined Hearing

Although the evidentiary rules, standards, and purposes of a fact-finding on an Article 10 petition and a §1028 hearing are different, case law makes clear that a judge may combine them into one proceeding. See In re Kristina R., 21 AD3d 560 (2nd Dept. 2005); see also Matter of Kimberly Z., 88 AD3d 1181 (3rd Dept. 2011) (combined fact-finding hearing and §1027 hearing); Matter of Crystal S., 74 AD3d 823 (2nd Dept. 2010) (combined fact-finding and dispositional hearing); Matter of Miguel M., 36 AD3d 613 (2nd Dept. 2007) (same). In the instant matter, the severe and pervasive nature of the alleged abuse and neglect against Ms. N. were important factors in deciding the §1028 issue, so it would have been redundant, counter-productive and overly time-consuming to do the two proceedings separately.

I note that throughout the combined hearing, I was always mindful and vigilant of what was, and was not, admissible for each different proceeding — for testimony, exhibits, and arguments — as well as the appropriate legal standards for each proceeding.

B. The Fact-finding on the Allegations in the Petition

1. Educational Neglect

The school records for the older children, Petitioner's Exs. 2 and 3, establish an uncontroverted history of excessive absences and lateness for both children. In the 2013-14 school year, Jahniya was absent 61 times and late 50 times, and Elyjah was absent 62 times and late 51 times. The majority of the children's report cards consisted of 1's and 2's (out of 4). And although both children received a 3 in a very few areas, the records also revealed that they both were reading at a very low level for their grades.

Jahniya's teacher from first grade, Ms. Johnson, testified that Jahniya was frequently absent or late to school, and that when she was late, it was often as much as one to two hours or more. She noted that Jahniya began the year far below an appropriate reading level for her age and that this did not improve over the entire school year. In math, Jahniya actually regressed [*4]over the course of the year. Ms. Johnson described that Jahniya was assigned to receive special educational services, but because of her failure to attend school regularly and on-time, Jahniya was unable to progress at all.

Elyjah's teacher from second grade, Mr. Graham, testified that Elyjah began the 2013-14 school year already a grade-level behind and that Elyjah had an Individualized Education Plan ("IEP") in place. However, Elyjah's reading did not progress from Level E that entire year, and he missed assignments and tests that were needed for him to learn. Notably, Mr. Graham described that Elyjah seemed "frustrated" and "wanted to learn," but that his poor attendance prevented him from succeeding in school.

Both teachers testified that they spoke to Ms. N. at a parent-teacher conference during the year and described the problems that the children were having. They testified that they advised Ms. N. about the need for the children to attend school as well as possible strategies or services that could help the children. And Mr. Graham described that Ms. N. only gave vague responses, indicating that she understood what they were saying and would "work on" things with the children. However, both teachers stated that they saw no improvement in the children's attendance or learning skills, and that Ms. N. never reached out to them at all or sought more information or help for the children. Notably, they acknowledged that they did not make any other specific efforts to engage Ms. N.

I found both teachers to be credible, straightforward in their demeanor, and corroborated by each other and by the other evidence in the case. They knew the children and their history well. Moreover, they did not seem biased in any way against Ms. N., and indeed they conceded without hesitation quite a bit of information quite favorable to Ms. N. relating to the §1028 portion of the case.

For purposes of this allegation, FCA §1012(f) defines a "neglected child" as a child:

whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care (A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of [the education law.]

FCA §1012(f)(1)(A). Educational neglect "may be premised upon proof that a child has a significant rate of unexcused absences from school which detrimentally affects the child's education, and that the requisite education was not provided from a source other than the public school." Matter of Ashley X., 50 AD3d 1194, 1995 (3rd Dept. 2008) (citing cases). In the instant matter, the testimony of the witnesses, combined with the school records, easily prove educational neglect by a preponderance of the evidence. The children missed huge amounts of school due to unexcused absences and lateness, and their failure to attend had a direct and clear impact on their ability to progress and learn. Matter of Annalize P., 78 AD3d 413 (1st Dept. 2010) (24 absences during a school year sufficient to establish neglect, even without evidence of actual impact on the child) (citations omitted); Matter of Ember R., 285 AD2d 757 (3rd Dept. 2001 (38 absences and many latenesses, resulting in a significant decrease in grade point average).

Indeed, Ms. N. did not really dispute this neglect in her summation, instead arguing that even if she did neglect Jahniya's and Elyjah's educational needs, it would not amount to derivative neglect of the younger children, Nahzzear and Yahmir. However, derivative findings of educational neglect are appropriate where the evidence "demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in respondent's care." Ember R., 285 AD2d at 759 (citing cases). Although Nahzzear and Yahmir were not school-aged at the time of the allegations in the petition, Ms. N.'s almost-complete failure to get the two school-age children to school or to engage in their specific educational needs, while aware that they were failing and not progressing at all, warrants a derivative finding. Matter of Danny R., 60 AD3d 450 (1st Dept. 2009) (citing Ember R.). Accordingly, I find that Ms. N. derivatively neglected Nahzzear and Yahmir as alleged.

2. The Burning of Nahzzear

The extent of Nahzzear's injuries was not disputed at the trial. On July 23, 2014, Ms. N. brought the child to Lenox Hill Hospital with severe burns to both of his hands. Later that same day, staff at Lenox Hill recommended that Nahzzear be transferred to Cornell Weill Hospital for more specialized treatment, and Ms. N. accompanied the child to Cornell. There, the child was seen and treated for second and third degree burns to both hands. The burns, depicted in Petitioner's Ex. 5 and described by several witnesses, covered the back of both of the child's hands, extending from just below the fingertips to the wrists. Importantly, the fingertips and majority of the child's palms were not burned, nor were there burns to any other part of Nahzzear's body.

Ms. N.'s statements about what happened remained essentially unchanged — to ACS, to the doctors, and in her testimony here in court. She described that in the morning hours of July 23, 2014, the children Jahniya and Elyjah left home to spend the day, or perhaps go camping overnight, with a family friend. That left Ms. N. at home with Nahzzear and Jahniya. Ms. N. said that she put a pot of water on the stove to boil in order to make oatmeal, and then she noticed that she was bleeding from her vagina. She went to the bathroom, undressed, and began to shower. At some point, she heard something that alarmed her, and she came back to the kitchen. There, she saw Nahzzear and the pot on the floor, and she quickly realized that the child's skin was damaged and peeling off. She did not call the child's pediatrician, 911, or anyone else for assistance. Instead, she took Nahzzear and Yahmir to a store in the plaza outside of her building, where she purchased pads, a wrap, and some ointment, and then they returned to the apartment. Ms. N. put ointment on one or both of Nahzzear's hands, although she only bandaged one of them — at trial, she stated that she only bandaged the hand from which she observed that the skin had peeled. She also acknowledged that she waited many hours — as many as ten or twelve — before taking Nahzzear to the hospital. Even then, she did not call for an ambulance or doctor, but rather took the children on a bus to Lenox Hill.

In contrast, Dr. Gordon testified that, in her expert opinion, (1) Ms. N.'s version of events is completely inconsistent with the evidence in the case; and (2) the nature of the burns suggest that they were inflicted by someone pouring scalding water on the child's hands, and not as a result of some accident. I found Dr. Gordon to be a very credible witness. She is an established [*5]and experienced expert in burns and pediatrics, having spent years treating and consulting on hundreds of such cases. See Petitioner's Ex. 4, Dr. Gordon's CV. Additionally, she did not know any of the parties in the case and appeared unbiased. And perhaps most importantly, her opinions are supported by common sense and my own observations of the injuries that even a layperson could perceive.

All of the evidence in the case — although ACS surely would have been better served by providing more specifics about the height of the child, the height of the stove, pictures of the apartment, the kitchen, the stove, and the pot — supports Dr. Gordon's opinion that these burns did not come from Nahzzear grabbing a pot and spilling it on himself, nor did they come from the child sticking his own hands into boiling water. Importantly, the testimony of all of the witnesses described a normal-sized, two-year-old child who would have had to reach up to even approach the height of the stovetop, much less the height of a pot perched on top. Moreover, at the time of the incident, Ms. N. had almost no furniture of any kind in the kitchen that would have allowed the child to climb up towards the pot of boiling water. This was described by CPS Gerlak, who noted that she had to sit on a crate in the apartment when she visited the home around the time of the incident, and Ms. N. did not deny it. So it is completely improbable that Nahzzear would have, or even could have, been able to reach up, grab the pot, and spill water on himself. But even if he had, Dr. Gordon's testimony and common sense make clear that an accidental spill, certainly by a young child, would have yielded more haphazard burns and splash marks on the child's body, rather than the patterns depicted in the pictures and records. Indeed, Nahzzear had no other burns at all. Moreover, Dr. Gordon opined that had a two-year-old somehow done this to himself, it is extremely unlikely that the burns would be the same areas on both hands.

Likewise, Dr. Gordon's testimony and expert opinion credibly establish that if Nahzzear stuck his hands directly into the water, his burns would have been more precise — looking almost like a "glove" that would cover the entire submerged area. On cross-examination, Dr. Gordon did concede the remote possibility that if the child had submerged his own closed fists into the water, and if the child had exactly a certain size of hand and fingers, this burn pattern might happen — that is, burns to the outside of the hands but sparing the palms and fingertips. But given the other evidence described above, for Nahzzear to have submerged his own fists into the boiling pot, he would have had to get up to the level of the stovetop, then get even higher in order to reach over the top of the pot and then put them both down into the water at the same time. And then, since Ms. N. said she observed the pot on the floor next to Nahzzear, he would have had to have caused the pot of boiling water to spill onto the floor while completely avoiding getting any of it on any other part of his body. This tortured scenario is beyond implausible and is completely contradicted by all of the evidence in the case.

In contrast, Dr. Gordon's opinion is credible and supported by the evidence that these burns were inflicted by pouring water on the child's hands. In light of all of the evidence in the case, there is simply no other explanation for Nahzzear's burns, other than that Ms. N. intentionally caused them.

Next, Dr. Gordon described that with burns this severe, any delay or improper treatment places someone at significant risk of infection and more severe damage. Even Ms. N. [*6]acknowledged that she immediately knew the severity of the injuries — the blistering and peeling of the skin. Under these circumstances, any delay, must less one of up to twelve hours, was far below the minimum standard of care that a parent must provide to her child. Even if Ms. N. did, in fact, purchase bandages and ointment and think that she could treat the burns herself, she was wrong. Indeed, any reasonable parent, upon seeing these burns to a two-year-old — and likely hearing the agonizing cries of her child, according to Dr. Gordon — would have called a pediatrician, 911, or immediately sought out professional treatment.

And finally, Dr. Gordon testified that these were second degree burns that would most likely leave permanent scars on Nahzzear, and that he would require different forms of therapy and skin grafting to even try to regain a full range of motion in his hands and wrists.

With regard to the burns, I found Ms. N.'s testimony incredible. It is plain that she cares about her children and loves them very much. She was detailed and specific about them and about parts of July 23, 2014. And, to her credit, she essentially conceded that she could have, and should have, taken Nahzzear to the hospital much sooner. However, as described above, her version of events is completely implausible and wholly contradicted by the other evidence in the case.

Moreover, her testimony about various portions of the day were extremely suspicious. First, her description of sending Jahniya and Elyjah off with a family friend was vague and strange. She stated that she had put them on a bus to go spend the day "camping" with a family friend, but at various times during both direct and cross-examination, she could not say how long she expected them to be gone, when she expected them back, where they would be staying, or any plan to retrieve them. Indeed, she stated that she did not pack clothes or provisions for them at all. This elusiveness was enhanced when she refused to provide to ACS the name or contact information of the family friend. Of course, many people are hesitant to provide information about others to ACS or law enforcement, but her failure to do so for such important facts that would support her version of event undermines her credibility.

Later, Ms. N.'s explanation of why she delayed seeking medical treatment further highlighted the evasiveness of her testimony on the topic of the older children. She described that before going to a hospital or doctor, she wanted to get Jahniya and Elyjah back home. She could not articulate why this would be, and it defies common sense to think that she would delay her young child's treatment for hours in order to create an additional logistical nightmare for herself. If the older children were already in the care of a responsible adult who could have kept them overnight, it would have made much more sense to let Jahniya and Elyjah stay with that adult. It seems that this would have allowed Ms. N. greater flexibility to take Nahzzear and Yahmir to the hospital with far less expense and hassle. I can only surmise as to why Ms. N. would be so evasive about Jahniya and Elyjah being outside of her home at the time of the incident — perhaps to avoid seeming neglectful of them as well, perhaps to avoid those children being removed by ACS, or perhaps a host of other reasons. But in any event, this testimony was not credible at all.

I also found suspicious her description of how she chose to treat the burns. Again, rather than calling a doctor for advice or 911 for an ambulance — which would have come straight to her building — she chose to lug both of the young children out of her building and to a discount [*7]store located in the plaza of her building complex. There, she claims to have purchased pads, a bandage, and ointment — notably omitting any effort to even ask a store employee for assistance or advice. Then, instead of continuing on to a cab or bus to seek help, she lugged the children back up to her apartment. She testified that she then applied ointment to Nahzzear's hands and put a bandage on only one of his hands, and at some point in the day, she changed that bandage. Equally troubling is Respondent's Ex. C, the picture taken by Ms. N. of the items she purchased at the store. She described taking this picture the next day, in response to ACS's focus on the issue of what treatment Ms. N. provided. However, the items in the picture look almost completely unused or unopened. Even if the picture was taken in such a manner as to not highlight the openings or usage, it is hard to believe that if Ms. N. had used these items on her child's hands, including changing the bandage at least once, that the items would appear in such pristine condition a day later.

And finally, Ms. N. herself corroborated most of the other evidence in the case relating to the burns — the timing, the delay in treatment, the lack of furniture in the kitchen, etc. Importantly, even she did not state that there was any other furniture in the kitchen, nor that on July 23rd she found any stool or crate near the child or the stove that could have explained how Nahzzear would have climbed up to the stovetop. For all of these reasons, I find Ms. N.'s explanations as to the causation of the burns and her treatment of them to be completely incredible and implausible.

Next, the testimony of Mr. Barckhaus, from Abbott House, is illuminating on the source of the burns. I found this witness to be straightforward, credible, and unbiased. He knew of this family and of Nahzzear because he interacts with some families during the course of his duties, but his only substantive involvement in the case was being in the agency elevator with Nahzzear on October 14, 2014. Mr. Barckhaus testified that while in the elevator, he saw Nahzzear's burns and bandages — still present a full three months after the incident — and asked the child what happened. In response, Nahzzear replied that "mommy put it in the water." Mr. Barckhaus then asked the child to repeat what he said so that Mr. Barckhaus could be sure he was not misunderstanding, and the child repeated the same statement one or two times more.

I am not sure why Mr. Barckhaus asked the child about the injuries — perhaps he was seeking information for the case, or perhaps he saw a child with bandages and simply asked out of concern. But either way, Nahzzear's otherwise uncoached statements are persuasive and corroborative of Dr. Gordon, as well as in direct opposition to Ms. N.'s entire version of events. Surely, as Ms. N. argued in summation, Mr. Barckhaus did not provide much context for this statement, and Nahzzear's speech ability at the time was not strong. But Mr. Barckhaus did not seem biased in any way against Ms. N., nor did Ms. N. offer any reason or motive that Mr. Barckhaus would have to come into court to fabricate or exaggerate about this particular case.

Additional evidence relevant to these allegations in the petition are the findings and orders from Ms. N.'s 2012 Article 10 case. There, she was found neglectful of her children, including (1) failing to properly care for Nahzzear's feeding and health needs, and failing to follow up with appropriate medical treatment for him; and (2) Ms. N. displaying bizarre and irrational behaviors, including stating that Nahzzear was a prophet. In that case, her children were removed from her care, and she was ordered to complete a variety of parenting and mental [*8]health services. While these findings, orders, and conditions pre-date the time frame charged in the petition, they still carry some weight with respect to the allegations charged here.

Under FCA §1012(e), a child is an "abused child" when a respondent:

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 the physical or emotional health or protracted loss or impairment of the function of any bodily organ; or

creates or allows to be created a substantial risk of injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement, or protracted impairment of the physical or emotional health or protracted loss or impairment of the function of any bodily organ.

FCA §1012(e)(i),(ii).

Considering all of the evidence in this case together, the proof — by far more than a mere preponderance — proves that Ms. N. intentionally inflicted these injuries on Nahzzear, thereby causing both (1) a substantial risk of serious or protracted disfigurement, protracted loss or impairment of the function of his skin, a bodily organ, and (2) actually causing such injury to the child. This is abuse under the Family Court Act. See, e.g., In re Angelique H., 215 AD2d 318 (1st Dept. 1995) (intentional burn to the child's hand is abuse, whether or not an actual long-lasting injury was caused); In re C. Children, 207 AD2d 888 (2nd Dept. 1994) (intentional scald burns to hand constitutes abuse); Matter of AJ, 17 Misc 3d 631 (Fam. Ct., Qns Co. 2007) (burns and other injuries). Further, I find that under all of the circumstances in the case, the evidence proves derivative abuse of the other children — both Yahmir, an infant who was definitely home at the time, and Jahniya and Elyjah, who are older and may or may not have been home. Id.; see also Matter of Marino S., 100 NY2d 361, 374 (2003); Matter of Amirah L., 118 AD3d 792 (2nd Dept. 2014). The burning of her child, combined with Ms. N.'s failure to secure medical treatment for her own child, and her failure to acknowledge or express remorse for her actions, demonstrate that because her "judgment and impulse control are so defective as to harm one child [in her care, it] is likely to harm others as well." Marino S., 100 NY2d at 374 (internal quotations and citations omitted); see also Amirah L., 118 AD3d at 793 (citing Marino S.).[FN2]

Likewise, Ms. N.'s failure to seek prompt treatment for these obvious burns constitutes medical neglect in its own right. Under FCA §1012(f)(i)(A), a child is neglected where the respondent fails to provide medical care to a child "though financially able to do so . . . or other reasonable means to do so . . . ." FCA §1012(f)(i)(A). "Adequate medical care does not require a parent to call a doctor every time a child is injured[, but rather] the law requires that [12] a physician be consulted when such course would be undertaken by an ordinarily prudent and loving parent, solicitous for the welfare of his child and anxious to promote [the child's] recovery." Matter of Lester M., 13 Misc 3d 1222(A) (Fam. Ct., Richmond Co. 2006) (internal quotations and citations omitted). A failure to seek prompt medical care has been found to be neglect in many different circumstances. See, e.g., In re Samantha M., 56 AD3d 299 (1st Dept 2008) (child vomiting and ill for two weeks was enough to put ordinarily prudent parent on notice that medical attention was required); Matter of Seamus K., 33 AD3d 1030 (3rd Dept. 2006) (evidence of shaking injury to child would have been noticeable within 24-48 hours). Here, even though the delay was only approximately 10-12 hours, compare Matter of Miranda O., 294 AD2d 940 (4th Dept. 2002) (five hour delay in getting treatment for burns, without more, not neglect), all of the testimony in the case makes clear that Ms. N., or any reasonable parent, would have known that these burns were severe and required immediate medical care. Amirah L., 118 AD3d at 794 (upon noticing the "obviously grave injuries" the child had suffered, respondent delayed seeking medical treatment for approximately two hours, including electing to take a taxicab to a particular hospital rather than getting more prompt care); Lester M., 13 Misc 3d at 1222(A) (citing Matter of Nyomi, 10 AD3d 684 (2nd Dept. 2004) (failure to take child for medical appointment day after burn supported neglect finding); In re Richard S., 204 AD2d 636 (2nd Dept. 1994) (neglect found where, despite professed concern for well-being of child, parent failed to get medical attention for burned child). Indeed, Dr. Gordon opined that the child would have been in great distress and pain, and Ms. N. herself noticed that Nahzzear's skin was peeling off and blistering.

Accordingly, I find that Ms. N. neglected Nahzzear, and derivatively neglected the other children, by failing to promptly seek medical care for the burns.

3. Excessive Corporal Punishment of Jahniya

The evidence adduced at trial on this count did not resemble the allegation in the petition at all. Ms. Johnson, Jahniya's teacher, testified that on June 16, 2014, Jahniya complained of pain to her shoulder. Ms. Johnson briefly observed a small bruise on the child's shoulder, but she did not investigate it any further and sent the Jahniya to the school nurse. Ms. Pope, that nurse, saw Jahniya that same day and observed a large, circular bruise to the child's shoulder. When Ms. Pope asked the child how she got the bruise, Jahniya responded that it was the result of playing with her brother and banging it on a table. Ms. Pope was suspicious of this answer and probed a bit further with Jahniya, telling Jahniya that she could trust Ms. Pope and that she should tell the [*9]truth. Jahniya then stated that she did not want to get into trouble, and Ms. Pope again assured her that she could tell her the truth without fear of harm. Jahniya finally disclosed that the mark was caused by her mother kicking her as punishment because Jahniya could not find her shoe.[FN3] However, Ms. Pope could not remember if the child provided a time frame for when this occurred, and Ms. Pope did not testify about any other details relating to the incident.

Next on this issue, CPS Gerlak testified that when she began her initial investigation into these allegations, she attempted to speak to Jahniya in the courthouse. However, Jahniya made gestures suggesting that she did not feel comfortable speaking to Ms. Gerlak about such matters. I found the testimony of both Ms. Pope and Ms. Gerlak to be credible, unbiased, and truthful.

The allegations in the petition describe Jahniya as having stated that her mother hit her with a belt, leaving linear marks on her. But no such testimony or evidence came out at trial. Moreover, both older children specifically told Ms. Austin that Ms. N. did not use corporal punishment on them, and Ms. N. has consistently denied ever using corporal punishment on her children.

I find the evidence credible that Ms. N. kicked Jahniya, but there is no basis for a finding that it was excessive. To be sure, a grown woman of Ms. N.'s size kicking a young child in the shoulder is a questionable form of discipline. And Jahniya's discomfort at disclosing it to the school nurse, along with her unwillingness to talk about it to CPS Gerlak, raise significant suspicion that the child is covering up something greater. And of course, the intentional burning of Nahzzear permits a strong inference that Ms. N. used excessive force with Jahniya. But there was no testimony at all about the amount of force used, the number of kicks, whether it was intended for the shoulder (as opposed to, e.g., the mother kicking at the child who was on the ground looking for her shoe, and accidentally striking the shoulder), or what was done or said at the time of the incident. Under such circumstances, a finding of excessive corporal punishment is not supported by a preponderance of the evidence.

4. Severe Abuse Under FCA §1012 and SSL §384-b

ACS also seeks a finding of "severe abuse," based upon the burning of Nahzzear, and they seek it directly for Nahzzear and derivatively for the other children. Under SSL §384-b(8)(a)(i), a child is "severely abused" by his or her parent if:

(i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifferent to human life, which result in serious physical injury to the child as defined in [Penal Law §10.10(10)].

SSL §384-b(8)(a)(i). The burden of proof for this type of finding is by clear and convincing evidence. SSL §384-b(8)(d). Under §10.10(10) of the Penal Law, "serious physical injury" is defined as a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." PL §10.10(10).

I find by clear and convincing evidence that Ms. N. intentionally burned Nahzzear and failed to seek prompt medical attention for the very burns she caused to her own two-year-old child. Likewise, the clear and convincing evidence proved that her actions caused Nahzzear to suffer a "serious physical injury" under PL §10.00(10). Although it is too early to know the full long-term impact of the burns at this time, Dr. Gordon testified that Nahzzear has severe burns to his hands that likely will impair his ability to move his hands or wrists, require extensive treatment and therapy, and leave permanent scars. See People v. Rivera, 268 AD2d 538 (2nd Dept. 2000) (serious physical injury where scars still visible seven months after the incident); Matter of AJ, 17 Misc 3d 631 (Fam. Ct., Qns Co. 2007) (burns to young child likely to result in scarring). This constitutes a protracted impairment of the function of a bodily organ. Id.

However, the evidence does not prove by the clear and convincing standard that Ms. N. acted with "depraved indifference to human life." The plain meaning of those words requires proof that (1) the child was placed at risk of death, and (2) that Ms. N. was aware of this risk and wholly indifferent to that risk. I note that in Article 10 cases, the standard for "depraved indifference" is lower than the more stringent one required in criminal cases. Matter of Dashawn W., 21 NY3d 36 (2013). In Dashawn W., the Court of Appeals examined its jurisprudence on "depraved indifference" crimes. They noted that in criminal matters, the Court has required the prosecution to prove beyond a reasonable doubt a heightened mens rea in order for a defendant to be found guilty under a theory of depraved indifference. But the Court specifically held that the case law "under the Penal Law has no bearing on whether a child is severely abused within the meaning of [the Social Services Law.]" Id. at 49.

However, the obvious reading of Dashawn W. is that this lower standard applies to the mens rea element for intentional or depraved conduct, but it does not affect or alter the legal definition of "depraved indifference." That is, the plain language of SSL §384-b(8)(i) still requires proof of the element that a respondent must have placed a child at risk of death. See, e.g., Deshawn W, 21 NY3d at 49; Matter of Amirah L., 118 AD3d 792 (2nd Dept. 2014); Matter of Julia BB, 42 AD3d 208 (3rd Dept. 2007). In Matter of AJ, Judge Richroath rejected a finding of "severe abuse" under the SSL§384-b in a case where the respondents caused a substantial burn to the child's arm very similar to burns in this case. "While respondents' actions may loosely be characterized as depraved,' they did not . . . rise to the level of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life." 17 Misc 3d at fn.6. In People v. Heslop, 48 AD3d 190 (3rd Dept. 2007), the Appellate Division opined, "offenders who inflict shallow wounds or burns on a child, disregarding the grave risk of disfigurement but not necessarily death . . . might not be liable for creating a substantial and unjustified risk of death . . . ." Heslop, 48 AD3d at 195-96 (emphasis in original). While this was not the holding of Heslop, it is instructive that the Third Department noted the difference between severe burns and a risk of death that would constitute depraved indifference [*10]to human life. And finally, neither ACS nor the attorney for the children in this case has provided any case precedent at all to support their assertion that a burn to the hands, or any similar type of burn to limbs or a non-vital part of the body, constitutes depraved indifference to human life.

While I find that that Ms. N. acted wantonly, cruelly, and intentionally in burning her son, I do not find that the evidence proved that burning a child's hands with water is reasonably likely to cause death, nor that a reasonable person would think so. At the trial, Dr. Gordon was asked about the possible consequences of the burn, even when combined with the lack of prompt treatment. She testified that such burns, particularly if not treated promptly, can lead to infection, sepsis, and the child becoming very ill. She was not pressed further on this point by any of the attorneys, but she did not list death as even a remote possibility stemming from these injuries. Under these circumstances, the petitioner has failed to prove by clear and convincing evidence that the injuries to Nahzeear were life-threatening. Matter of AJ, 17 Misc 3d 631; Julia BB., 42 AD3d at 216-17. And finally, while there is nothing excusable about Ms. N.'s actions that day, it must be noted that at some point later in the day, she did bring Nahzzear to a hospital for treatment on her own accord. See Julia BB., 42 AD3d at 216 (severe abuse inapplicable where respondents' made some effort to obtain medical care for the child); cf. People v. Lewie, 17 NY3d 348, 359 (2011) ("Here, while the evidence certainly shows that defendant cared much too little about her child's safety, it cannot support a finding that [14] she did not care at all"); People v. Matos, 19 NY3d 470, 476-77 (2012) (same).

Accordingly, under the plain language of SSL §384-b(8)(i), I find that ACS did not prove by clear and convincing evidence that this was "severe abuse." It follows, then, that I do not find derivative "severe abuse" for the other children.

C. The §1028 Motion

The 1028 hearing related only to the older children, Elyjah and Jahniya, as Ms. N. did not request an immediate return of the younger children.

Under FCA §1028, a court must grant a parent's application for the return of a child "unless it finds that returning the child would present an imminent risk to the child's life or health." FCA §1028. In Nicholson v. Scoppetta, 3 NY3d 357 (2004), the Court of Appeals clarified the standard of "imminent risk" and the factors courts must weigh in making such decisions. The courts must consider whether the "children were actually or imminently harmed by reason of [the parent's] failure to exercise even minimal care in providing them with proper oversight," examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior, including whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" Id. at 370, 372.

Further, Nicholson makes clear that a court must do more than identify the existence of a risk of serious harm. In addition, a court must weigh whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal, and a court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best [*11]interest. Id. at 379-80. And finally, "[t]he term safer course' should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption." Id. at 380.

In denying Ms. N.'s application, there were many pieces of evidence that persuaded me that even the older two children would be at imminent risk of harm if they were returned to their mother. However, I summarize the major points as follows:

1. The burning of Nahzzear. First and foremost, as described above, I found that Ms. N. intentionally and viciously burned her own son and then failed to seek prompt medical treatment for him.[FN4] This was brutal abuse that, on its own, demonstrated an impulsiveness and dangerousness in Ms. N., as well as a failure to control her behavior or to appreciate the consequences of her anger and actions to her children. In addition, her failure to acknowledge her role in this incident further illustrates this lack of insight into her own mental health and its effects on her children. Even though Elyjah and Jahniya are older children who are presumably less defenseless than Nahzzear, Ms. N.'s impulsiveness, quickness to anger, and lack of self-control endanger these children as well.

2. The prior findings against Ms. N. Under Docket #NN-02888-90/12, Ms. N. was found neglectful of her three children (Yahmir was not yet born), and all three were placed into foster care during the case. In January of 2013, the Court issued its fact-finding decision — that Ms. N. failed to get Nahzzear proper medical and health care, requiring the child to be hospitalized for failure to thrive, and also that Ms. N. herself was hospitalized for having displayed bizarre behaviors, including stating that Nahzzear was a "prophet." In June of 2013, the Court continued the placement of the children and issued its Dispositional Order: that Ms. N. continue her mental health treatment, take an anger management class, take a parenting skills class, attend domestic violence counseling, and follow up with services for her children.

At the 1028 hearing, counsel for Ms. N. objected to the introduction of these decisions and orders, arguing that they were too remote in time to be relevant to the current situation. However, although the initial allegations in the prior case were filed in 2012, the Court's findings were in 2013, and these children remained in foster care until late 2013. So even though, after January of 2013, the standard for placement was best interests rather than imminent risk, it is noteworthy and relevant now that a prior court did not believe the older children should go home less than one year before the incidents in this case.

3. The corporal punishment of Jahniya. Although I found that ACS did not prove the allegation that Ms. N. used excessive corporal punishment on Jahniya in June of 2014, I still find the evidence relating to that allegation to be relevant for the 1028 portion of the case. Jahniya had injuries on her body, and I find credible her eventual statement that Ms. N. caused them by [*12]kicking the child. It is notable that Jahniya initially lied about their origin — certainly common in such a situation where the child's parent is the offender. And it also makes sense that, upon some prodding from a caring adult — particularly a nurse — Jahniya would have felt safe enough to tell all, or part, of the real story. Ms. N., a large woman in height and weight, kicked her then seven-year-old child hard enough to leave a mark, all because the child could not find her shoe. As I described above, no additional testimony was provided about this incident, but these actions likewise demonstrate Ms. N.'s temper, impulsiveness, and willingness to be physical with the older children.

In addition, at the beginning of the investigation, Jahniya seemed reluctant to talk about the incident with CPS Gerlak. On June 16, 2014, Ms. Gerlak spoke to Jahniya at the family's home — with Ms. N. present in the home. After a short time, Jahniya refused to speak any further with Ms. Gerlak, and when asked specifically about her injuries, the child made a gesture of running her hand across her throat, suggesting that she could not speak about it. To different questioners, Jahniya gave various, and sometimes somewhat conflicting, explanations for several injuries she had on her face and body, although she eventually told Ms. Gerlak that Ms. N. never uses corporal punishment on the children. There are many reasons why a child might not wish to speak with ACS at all, much less about something that her mother did. However, Ms. Gerlak's testimony, combined with the other evidence about Jahniya's behavior and statements, suggested that the child was hiding information that was inculpatory of Ms. N. While Ms. Gerlak's opinion about the child's state of mind may be somewhat speculative, Jahniya's injuries and explanations are factors worth noting for the 1028.

4. Ms. N.'s mental health and therapeutic evaluations. In February of 2015, the Bronx Family Court Mental Health Services ("MHS") did an imminent risk and expanded mental health assessment of Ms. N., including observing a few visits between Ms. N. and the children. The report is in evidence for the 1028 hearing, and it notes a history of anger and impulsiveness on the part of Ms. N.. She was arrested at least twice due to engaging in physical fights with a prior boyfriend; she was arrested and convicted for assaulting a woman in a Dunkin Donuts in 2013; in 2014, she voluntarily sought out mental health treatment after engaging in "combative" behavior; and even during the observed visits — knowing that she was being observed for purposes of this case — she used harsh language towards the children when angry with them (e.g., "get the hell off the floor"). As part of the 2012 Family Court case, Ms. N. engaged in some weekly therapy at Promesa, but she stopped after a few months when her children were returned to her care. The MHS report concludes by diagnosing Ms. N. with Adjustment Disorder with Depressed Mood, Unspecified Bipolar and Related Disorder; noting her to have "a history of poor impulse control and aggression that has affected her overall functioning resulting in poor judgment and decision-making," although with some insight into her impulsivity; and recommending that further treatment and stability would be needed for her to be able to properly care for her children.

In addition, one facet of Ms. N.'s service plan in this case was to have therapeutic visits with her children in a setting supervised by Dr. Houston. Over the life of the case, Dr. Houston's reports showed significant improvement by Ms. N. with respect to her interactions with her children. At first, Dr. Houston noted that Ms. N. had difficulty devoting proper attention to all of [*13]the children during visits. At the January 22, 2015 visit, Ms. N. got upset and had altercations with several adults, requiring Elyjah to be removed from the room in order to avoid him seeing his mother in that state. But by April, Dr. Houston noted that "[Ms. N.] continues to make progress," praising that Ms. N. was "stronger emotionally" and much better able to deal with the children. The records detail Ms. N.'s love and devotion to the children, working to engage them, feed them, and to voice concerns she had about their foster care placements.

Indeed, counsel for Ms. N. intended to call Dr. Houston as the final witness for the 1028 hearing. However, on May 11, 2015, the final date allotted for the hearing, ACS entered into evidence, without objection, Petitioner's Ex. 16, an email to the attorneys from Dr. Houston from May 1, 2015. In that email, Dr. Houston expressed a strong concern about Ms. N.'s ability to care for her children. She began by describing that both Elyjah and Nahzzear exhibited significant problems that would pose a problem to their caretaker. But when Dr. Houston wanted to discuss the children's educational and behavioral needs with Ms. N., Ms. N. did not want to discuss these things, took issues with a psychologist's recommendation relating to Nahzzear, and failed to grasp the magnitude of the help and services that her children need. Dr. Houston wrote:

Like many parents, it is difficult for [Ms. N.] to tolerate the notion that her children may not be developing typically. But without acknowledging their needs, she will neither be able to seek nor accept the help they need. This could be a hindrance to their well-being now, and their ability to grow into adults capable of taking care of themselves in the future . . . . I am not at all suggesting they should remain in foster care, but [Ms. N.] will have to make serious changes in her approach to the children's education. It has gone beyond academic performance . . . there have been immediate effects on the children's social functioning.

Pet.'s Ex. 16. While this email is not dispositive on its own, it demonstrates that even while this case is still pending, and even while Ms. N. is under the close supervision of specialists, she still has considerable difficulty in being an appropriate caretaker for her children. And notably, and seemingly in line with the concerns expressed in the email, Ms. N. declined to call Dr. Houston as a witness at the 1028.

5. Observations of Ms. N.'s impulsiveness, aggressiveness, and anger. Since I remanded the children in this case, Ms. N. has had visits with the children supervised by agency workers. Ms. Austin described that at several of the visits, Ms. N. displayed anger and negative behaviors, often in front of the children. For example, on December 22, 2014, Ms. N. got angry with a foster mother and used "colorful profanity" and threats directed at the foster mother — in the presence of the children. Then, on December 31, 2014, an agency worker asked Ms. N. to move the visit from a private room into a larger room, whereupon Ms. N. became angry and aggressive, prompting the agency to call the police. Ms. Austin also described that on one occasion, Ms. N. sent an explicit and profane text to Ms. Austin, calling Ms. Austin a "fucked-up bitch," a "devil," and other names. Of course, Ms. N. should be passionate about her children's wellbeing, zealous in seeking quality time with them, and direct in raising concerns about the court and foster systems. But resorting to violence, aggressiveness, and profanity — particularly in front of her children — is not acceptable, and it is further evidence of her ongoing problems of anger management and impulse control.

I, too, have observed Ms. N. demonstrate impulsiveness, anger, and bizarre behavior at times here in court throughout this case. On numerous occasions, she pulled a mirror from her purse and appeared to focus on her hair and make-up during court proceedings, for as much as a few minutes at a time. She regularly shook her head dramatically while others were talking, frequently made dramatic gestures with her hands and body, often widened her eyes in an exaggerated fashion in response to the proceedings, and occasionally appeared to speak to herself while others were talking. While it is understandable that a parent in her situation would be frustrated with the court process and disbelieving of witnesses against her, these behaviors were beyond the typical range of those exhibited by most respondents, in my experience.

Another feature about her behavior is noteworthy. During her prior Family Court case, Ms. N. attended and completed a variety of services. By her own account, she has completed at least two parenting classes, and in 2013, she attended therapy and mental health services at Promesa. In Petitioner's Ex. 15, a letter from Promesa dated October 21, 2013, her treatment providers described that she had made progress in dealing with her anxiety and depression, had worked on her coping mechanisms, and was "mentally stable and at this point in no further need of continue [sic] Psychiatric care." And in her own testimony, Ms. N. described that she was a "different parent" from how she was in 2013 and that she has learned how to control her impulses and anxiety, as well as parenting techniques to help her care for her children. Yet despite all of this purported progress, in the past year Ms. N. burned Nahzzear, failed to get proper treatment for him, used corporal punishment on Jahniya, argued and got aggressive with staff and foster parents, and still engages in all of the other behaviors described in this case. So while her efforts and success are notable and admirable, her engagement in services has not eliminated the severe risk she poses to her children.

6. Ms. N.'s own testimony. As noted above, I found her testimony to lack credibility in a number of crucial areas. And in the face of the overwhelming evidence relating to the burns, her failure to accept responsibility and acknowledge any role in the events is troubling for purposes of the 1028 hearing.

In a similar vein, when she was asked about her prior impulsive and aggressive behavior, she denied, minimized, and blamed others. For example, when she was asked, by her own attorney, about prior criminal cases, she described pleading guilty to one case where, in 2012, a woman in Dunkin Donuts "put her hands on me, so I hit her back." At the same time, however, she noted that this occurred when her children were in foster care, and that as a result she was "stressed out" and "not completely myself." In another example, in response to the testimony from the case workers that Ms. N. got aggressive, angry, and abusive with foster parents and agency workers, Ms. N. insisted that, to the contrary, she always handled those situations calmly and in the same tone in which she delivered her in-court testimony. At another point, when she was asked if she had cursed at an agency worker, she said that she did but that "no harm was intended." Regarding when the police were called to a foster care agency office, Ms. N. explained that this was because an assistant director at the agency was being "disrespectful" to her. She did acknowledge, although only after being pushed quite a bit, that she sent the text to Ms. Austin, calling her a "fucked-up bitch," a "devil," and other names. However, when asked at trial if she was currently in any treatment for anger management, she flatly stated that she did [*14]"not need it right now."

And one other aspect of her in-court testimony is relevant to this analysis. At the very beginning of her trial testimony, the ACS attorney asked Ms. N. if any other adults were in the home on the day Nahzzear was burned. Ms. N. refused to answer this question, asserting her Fifth Amendment right against self-incrimination. No one provided any information about the existence of any pending cases or investigations that might justify such an invocation of rights, and Ms. N. did not provide any reasons she might have for asserting the privilege. Perhaps she is involved with dangerous individuals, or perhaps she has people in the home who are not supposed to be there. But in any event, her evasiveness on this topic is a concern, and I do draw an adverse inference against her because of this. Moreover, I consider her position on this as a factor relating to the 1028 decision and all of the issues in this case.

In a similar vein, back at the initial stage of the investigation, Ms. N. refused to provide ACS with the name or contact information of the adult with whom Elyjah and Jahniya allegedly had gone on the date of the burning. In court, Ms. N. stated that she did not provide this information because she did not like to get other people involved with ACS. However, given the nature of this investigation, and particularly since, if Ms. N.'s version of events were true, this person likely would have had corroborative and helpful information that would have assisted Ms. N., her failure to provide this information is disturbing. Indeed, it was not until April 22, 2015 — a full nine months after the incident — that Ms. N. identified this person to ACS. On the stand, Ms. N. stated that no one from the agencies had asked for the identity of this person, but that defies belief, particularly in conjunction with the incredible testimony she provided about Elyjah's and Jahniya's whereabouts on July 22, 2014.

7. Balancing the harms of foster care. These areas described above are not at all exhaustive of the evidence adduced at the 1028 hearing, but they are significant ones which warrant highlighting in this decision. But even in light of all of these concerns, I must still balance the imminent risk of harm to the children caused by their mother against any harm caused by placing them in foster care, as well as whether there are steps short of placement that could mitigate the risk. Nicholson v. Scoppetta, 3 NY3d at 378-79.

There has been no dispute that the placement into foster care for Elyjah and Jahniya has been horrible and tragic for them in many ways. They were placed in care for a significant period of time as a result of Ms. N.'s prior Family Court case, and they have stated repeatedly that they did not like that experience. Throughout this case, they have told agency workers, their attorney, and their mother that they wish to return home to live with her and that they feel safe at home. Indeed, both children have run away from their foster placements, seeking to return home to their mother or at least to their former foster home. Scarily, these episodes of running away have involved the children travelling the city unattended, taking buses and subways without supervision — a very dangerous situation for children of this age.

For Jahniya, it was well-documented that since this removal, she has exhibited extreme behavioral problems: she defecated on herself in her clothes, she began to threaten children and adults in her school, she choked a child in one foster home, she did not bathe regularly, and she [*15]was psychiatrically hospitalized briefly in October of 2014. She was in a car accident with one foster parent, although there is no suggestion that this was anything other than an accident.

Likewise, Elyjah has acted out severely since the removal, including being aggressive, threatening adults, refusing to shower, and being psychiatrically hospitalized several times. One of these times, he was placed in the Children's Village Crisis Center for 21 days as a form of respite. Incredibly, Elyjah has been in thirteen different foster placements since the removal — he hit another child in one home, and he stole a cellphone from someone in another. He has run away from these placements many times and was picked up on the street by the police on one occasion. When ACS came to the precinct to pick him up, they reported that he was banging his head against a wall in the precinct.

Both children stated that they wanted to return to their former school, the Harlem Children's Zone, and both have repeatedly walked out of class or school at times since they were placed. Due to the changes in foster placements, both children have had to transfer schools several times. And whereas neither child was regularly in therapy in the past, both have been diagnosed with significant mental health issues, at least somewhat attributable to their foster care placement.

This recitation is merely a summary of the testimony and evidence about their struggles since the inception of this case, and the record fleshes out these issues far more fully. At the same time, however, I note that these children were not safe or thriving at home before this removal. First, they were removed for a significant period of time less than two years ago. Next, as discussed above, Ms. N. was doing almost nothing to further or support their education. They did not attend school regularly, they did not do their work, they were not getting their specialized education services, and Ms. N. was completely unresponsive to the school's entreaties. As a result, these two children — who appeared to want to learn — made no progress at all and even regressed in some areas.

In addition, the school witnesses noted that prior to the removal, the children were not always dressed in clean clothes and sometimes smelled "foul." These witnesses testified that both children had, on occasion, various injuries to their bodies. The children usually explained that these injuries were the result of roughhousing in the home, but Jahniya's evasive behavior and subsequent disclosure of being physically disciplined by Ms. N., combined with the burning of Nahzzear, raises my suspicion.

Prior to the removal, and even as ACS continued to investigate the allegations, Ms. N. had no furniture in her home. She described at one point in the trial that this was because she was doing "renovations," but there was no evidence at all to support such a statement.

And while Jahniya and Elyjah have plainly suffered since their placement in this case, there has been improvement in recent months. It should be noted that despite both children being taken to the hospital on several occasions since being placed in foster care, they were always discharged without prescribed medication or a severe diagnosis. It took the agency a long time to get the children into therapy to deal with the issues they face, but they both attend therapy [*16]regularly now. Moreover, while foster care has caused them trauma, it cannot be said that their placement is the only reason for their emotional suffering. They have had to wrestle with poor academic and social achievement, poor health and hygiene, a mother who severely burned their sibling and continues to try to cover it up, a prior placement in foster care, and other sadness and difficulties in their lives. For example, it was noted that Elyjah has been reluctant to shower in his foster homes, but the testimony made clear that he has been afraid to shower for a long time, due to a fear from the past about his biological father throwing cold water on him.

As for their education, there has been some improvement since the children entered care: they have stayed in their schools for some time now, and since at least February of this year, they have gone to school regularly and on time. As a result, they have been given specialized educational services and placed in more appropriate learning environments. And this appears to have been because they are in foster care. In contrast, the evidence showed that by the end of February, Ms. N. still had not signed the necessary paperwork for new educational assessments for Elyjah, further demonstrating her unwillingness, or inability, to meet her children's educational needs.

And both children have remained in their current foster homes for some time now. They still report some problems, but their behavior has been better and they have stopped running away on a regular basis.

It is laudable that Ms. N. has taken more parenting classes, re-engaged in therapy, and is benefitting from the therapeutic visitation. Indeed, in court, she was able to articulate quite well some of the strategies she has learned as well as some insight into her anger and impulsiveness. Also notable is that the agencies have explored intensive preventative services being in the home for significant periods of time should the children be returned to Ms. N.'s care.

But in balancing all of the factors present in this case, I find that Elyjah and Jahniya face an imminent risk of physical, emotional, and educational harm if they were to return to their mother's care at this time. And even in light of their struggles in foster care and the fact that many supports and services can be put in place to help mitigate that risk somewhat, I deny the 1028 motion.

CONCLUSION

For all of the reasons described above, I find that (1) ACS proved that Ms. N. abused and neglected her children, and (2) her §1028 application is denied.

SO ORDERED

Dated:Bronx, NY

August 7, 2015

ENTERED:

___________________________

ROBERT HETTLEMAN, J.F.C.

Footnotes

Footnote 1:I gave parts of my decision orally in court on both May 11, 2015, and June 1, 2015, and this opinion memorializes those decisions.

Footnote 2:ACS did not plead, nor did anyone argue, a cause of action under FCA §1046(a)(ii). That section provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would not ordinarily occur absent an act or omission of the parent or other person responsible for the care of the child; and (2) that the parent or such other person was the caretaker of the child when the injury occurred. Once the petitioner has established a prima facie case, the burden of going forward shifts to the respondent to rebut the evidence of parental culpability. In re Philip M., 82 NY2d 238 (1993). In this case, for all the reasons already stated in this opinion, the evidence proved by far more than a preponderance that Ms. N. abused Nahzzear, and derivatively the other children, under this theory as well.

Footnote 3:Notably, Ms. Pope stated that she had observed other injuries on Jahniya in the past, but that Jahniya had always attributed these to rough play with her brother. No other information was provided about these injuries, and I do not consider them as evidence in any way for the fact-finding portion of the case.

Footnote 4:It is worth noting that Ms. Austin testified that Nahzzear's foster mother, Ms. Irrizary, told Ms. Austin that Nahzzear repeatedly said that Ms. N. burned him with water. While this evidence was hearsay and therefore not admissible for the fact-finding portion of the case, it is admissible for the 1028 hearing.