Matter of Kaden B. (Priscilla O.)

[*1] Matter of Kaden B. (Priscilla O.) 2016 NY Slip Op 51751(U) Decided on December 7, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2016
Family Court, Kings County

In the Matter of a Proceeding Under Article 10 of the Family Court Act, Kaden B. TONY J. O., JR. MARQUIS J. B. Children Under Eighteen Years of Age Alleged to be Abused by

against

Priscilla O., Respondent.



NA XXXX/16



Victoria Silk, Esq., Attorney for the Petitioner, Administration for Children's Services

Emma Alpert, Esq., Attorney for the Respondent, Brooklyn Defender Services

Daniel Abdul-Malak, Esq., Attorney for the Children, The Legal Aid Society, Juvenile Rights Practice
Lillian Wan, J.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Wan, J.:

On April 18, 2016, the Administration for Children's Services (hereinafter ACS or the petitioner) filed the instant Article 10 petition alleging that the respondent mother, Priscilla O., physically abused and neglected the subject child Kaden B. (age 18 months) in that the subject child sustained burn marks on his right leg that are consistent with being burned by a cigarette lighter. The petition further alleged that Kaden had dark brown and red marks on his back, ears, foot and neck. The petition alleged that Kaden's siblings, Tony O., Jr. (age six) and Marquis B. (age three) are derivatively abused and neglected. At initial arraignment, ACS sought a remand of all the subject children, and a full hearing pursuant to Family Court Act (hereinafter F.C.A.) §1027 was held before the Hon. Ben Darvil. At the conclusion of the hearing, the Court denied the removal application and temporarily released all three children to the care of the respondent under ACS supervision with specific orders in place, including a limited temporary order of protection on behalf of the children prohibiting the respondent from inflicting corporal punishment on them.

On May 6, 2016, ACS filed an Order to Show Cause seeking a remand of the subject children and leave to amend the petition. ACS alleged in the amended petition that on May 5, 2016, Kaden was brought to Methodist Hospital and presented with new bruising to his left shoulder consistent with being grabbed and shaken, a bruise above the child's right eye and swelling to the left side of the child's head. The mother had no explanation for these injuries and stated that the marks may have been caused by "voodoo." The motion to amend the petition and [*2]remand the children was granted and Tony was removed and released to his father, Tony Oates, and Marquis and Kaden were removed and remanded to ACS. The mother did not contest the removal of the children. ACS subsequently filed the amended petitions on May 24, 2016. The amended petitions incorporated the allegations concerning these new injuries to Kaden as a separate count of improper supervision or guardianship.

The fact finding hearing commenced on October 11, 2016, and continued on October 12, 2016, October 19, 2016, October 20, 2016, October 25, 2016, October 26, 2016, November 3, 2016, November 9, 2016, and concluded with oral summations on November 15, 2016.

After considering all the testimonial and documentary evidence, the Court finds that the petitioner has established by a preponderance of the evidence that the respondent abused and neglected the subject child Kaden as defined under F.C.A. §1012. As a result of the abuse and neglect of Kaden, the subject children Tony and Marquis are in imminent danger of being abused and neglected, and a derivative finding of abuse and neglect is entered on their behalf.

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, 854 (2nd Dep't 2014); see also Matter of Katrina W., 171 AD2d 250 (2nd Dep't 1991) (holding that a preponderance of the evidence standard in abuse cases does not offend due process and rejecting the argument that a higher standard of proof such as clear and convincing proof is required in an Article 10 abuse proceeding).

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

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

Family Court Act §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 respondent was the caretaker 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); Matter of Maria S., 135 AD3d 944 (2nd Dep't 2016). 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 [*3]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.

The Appellate Division, Second Department, has ruled that the presumption of abuse can be rebutted with evidence that the child was solely in the care of another individual at the time of the injury. Matter of Jaiden T.G., 89 AD3d 1021 (2nd Dep't 2011). "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). Furthermore, attempts by respondents to implicate each other or other individuals are not sufficient to rebut the prima facie case of abuse. See Matter of Matthew O., 103 AD3d 67 (1st Dep't 2012); Matter of Seamus K., 33 AD3d 1030 (3rd Dep't 2006).

A child does not have to actually sustain a serious injury to justify a finding of abuse as long as the evidence demonstrates that the respondent placed the child at substantial risk of serious injury. See Matter of Angelique H., 215 AD2d 318 (1st Dep't 1995) (hospital records established that the respondent's act of intentionally burning the child's hand created a substantial risk of serious injury); Matter of Nassau County Dept. of Social Servs. on Behalf of Joseph H., 191 AD2d 634 (2nd Dep't 1993) (evidence of child's multiple bruises sufficient to show that the child was subjected to a substantial risk of physical injury which would be likely to cause serious or protracted disfigurement of impairment). Furthermore, expert testimony is not required in order to determine that the injury sustained constitutes abuse under FCA §1012(e). Matter of Matthew O., supra, (finding that evidence fractures inflicted on infant and the pain she suffered as a result supports the Family Court's finding that the respondents abused the child under the statute; 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). There is also no requirement that the injury itself must last for weeks or months or years to constitute abuse. Matter of X.B., 816 N.Y.S.2d 702 (Monroe County Family Court 2006).

The petitioner presented the testimony of Rose Mary Daniele, DNP, RN, FNP-BC, a nurse practitioner at the Brooklyn Hospital Center Child Advocacy Center. Ms. Daniele was qualified as an expert in child abuse on consent of all counsel. Ms. Daniele examined Kaden at the Child Advocacy Center on April 14, 2016, and noted the following injuries in the Brooklyn Hospital Center medical records (Petitioner's Exhibit 7):

Left posterior ear lobe 2 small approximately 0.5cm nonspecific healing scabbed lesions, right posterior pinna 2 small approximately 0.5cm nonspecific healing scabbed lesions, several linear denuded lesions on upper back at base of neck ranging in length between 0.5cm and 1.0cm, at posterior hairline 2 small approximately 0.5cm nonspecific denuded lesions, right posterior lower leg 2 partial loop shaped healing partial thickness burns, one measuring approximately 2cm x 1.5cm with small approximately 0.5cm healing scabbed lesion in center and one measuring approximately 2cm x 1.0cm with denuded small approximately 0.5cm lesion in center, left lateral lower leg several nonspecific small approximately 0.5cm healing scabbed lesions, top of left foot a nonspecific healing scabbed lesion.

Ms. Daniele described Kaden as a particularly active child and it took a while to get him to stay still for the examination. Ms. Daniele testified to lesions on the back of Kaden's neck, on [*4]the back of his ears and two patterned injuries on the back of his right calf. Ms. Daniele explained that a patterned injury gives a shape which is in contrast to a nonspecific injury which does not give a particular shape. Ms. Daniele indicated that the patterned shapes appeared to be the shape of the top of a Bic penlight cigarette lighter. Ms. Daniele described the shape as "two legs of a triangle, but somewhat rounded with a central healing scab in the middle between the two legs." Ms. Daniele indicated that the injuries were second degree burns in the process of healing. Ms. Daniele classified Kaden's burns as second degree because there was injury to both the epidermis and the dermis layers of the skin cells, where a blister may form and then scab. Ms. Daniele further testified that because of the well demarcated shape this type of injury can occur from lighting a cigarette lighter, heating the metal on the top and then applying it directly on the skin to get that clear, well demarcated shape.

In Ms. Daniele's expert opinion, the two burns were intentionally inflicted on Kaden, and her medical diagnosis was child physical abuse. Her conclusion was based on the "very well defined" shape of the injuries, and the fact that there were two of the same injuries. Ms. Daniele emphasized that the location of the injury, the back of the calf, is significant because most accidental injuries occur on the front of the body, the face, the forehead, the hands, the knees, and elbows, and injuries on the back are more concerning for non-accidental injury. When asked on cross examination if a child could have used the lighter to burn Kaden, Ms. Daniele noted that only a child who could grasp and light the lighter would be able to inflict this type of injury, and she doubted even her own ability to light a lighter given that she is a non-smoker. Ms. Daniele testified to a reasonable degree of medical certainty that the burns were over 24 hours old, but she could not date the injuries beyond that.

Ms. Daniele explained the Kaden had several denuded areas, or areas where the skin pigment is not there because of some injury to the skin, to the back of his neck and upper back. She also noted several scabs in the back of Kaden's ears, one on the back of his left earlobe and another on the right ear, the back of the pinna, which is the main part of the ear where the cartilage is. Ms. Daniele described these marks as nonspecific marks. Ms. Daniele was only able to speak to the cause of the two patterned marks on Kaden's calf and was not able to say what caused the other nonspecific marks. In response to the Court's questioning, Ms. Daniele clarified that the other nonspecific marks viewed on Kaden's body did not contribute to her diagnosis of child physical abuse in any way. Ms. Daniele testified that she had a brief conversation with the mother on the date that she examined Kaden, and the mother stated that she had no idea how Kaden sustained the marks on his body.

The petitioner also presented the testimony of Dr. Patrick McGrory, a physician from New York Methodist Hospital. Dr. McGrory was qualified as an expert in pediatric emergency medicine on consent of all counsel. Dr. McGrory examined Kaden when the respondent brought him to the emergency room on May 5, 2016. He noted that Kaden had "old" burn marks on the back of his neck, but focused on injuries to Kaden's head, eye and scapula or shoulder area. Dr. McGrory described bruising around Kaden's right eye that had a yellow or greenish color. Dr. McGrory opined that this injury was caused by blunt force. He also specifically recalled reddish and blueish linear bruises on Kaden's shoulder which were in the shape of fingers or a handprint. Dr. McGrory also indicated that these bruises were consistent with someone grabbing or hitting the child. Dr. McGrory further stated that given this handprint shape, it was unlikely that the linear marks were self-inflicted. Kaden also had swelling on the left side of his head below the crown which was consistent with blunt trauma. Dr. McGrory stated that the swollen area was [*5]tender to the touch on physical examination, and he also indicated that a hit on the head could cause a child to lose consciousness. When the doctor discussed the injuries with the mother, first she indicated that Kaden may have fallen out of bed but was inconsistent about whether she saw Kaden fall. According to Dr. McGrory, this explanation was not consistent with the linear bruises on Kaden's shoulder. Based on Kaden's injuries, a skeletal survey and CT scan of the head was performed. The skeletal survey was normal and revealed no fractures. The CT scan showed no evidence of acute intracranial hemorrhage or acute fracture, but did show a hematoma. Dr. McGrory explained that this finding confirmed the swelling that was visible when he conducted the physical examination of Kaden.

Blood tests were also run to ascertain if Kaden had a bleeding disorder, and all these tests were normal. Dr. McGrory indicated that dating bruises is not a "perfect science" and how long a bruise takes to fade depends on how long it takes for the individual body to reabsorb the blood. Dr. McGrory did opine that the marks in the shape of a handprint could have been one or two days old and he doubted that they were older than that. He further concluded that the yellowish/greenish bruise above Kaden's right eye was one week to ten days old, and caused by some type of impact. Dr. McGrory testified that he was concerned about the marks on Kaden's body because of (1) the different stages of healing, (2) the particular shape of the handprint on the shoulder, (3) the mother's inconsistent story, and (4) ACS's involvement with the family. Dr. McGrory did not believe that it is likely that a single fall caused all three injuries at once. In Dr. McGrory's medical opinion, the marks on Kaden were concerning for being inflicted by another person but he had no way of knowing who caused them.

The New York Methodist Hospital records were admitted into evidence as petitioner's Exhibit 9 and establish that Kaden was admitted to the emergency room on May 5, 2016. The records document the numerous injuries found on Kaden including "multiple bruises on the trunk and limbs, as well as healing burns on the posterior neck." The head injury was diagnosed as a "small subcutaneous hematoma of the left convexity." The mother reported to hospital staff that for the past week Kaden has been waking up with bruises on his face, back, chest and abdomen, and she was unsure of how these bruises occurred.

The ACS caseworker, Ms. Aneisha Green, testified that she conducted an investigation upon receiving an oral report transmittal from the daycare center on April 11, 2016. When no one responded at the mother's apartment, the caseworker went upstairs to the home of the babysitter, Tiffany Y., and was able to interview both Marquis and Tony. According to Ms. Green, Ms. Y. had six children of her own, including teenagers, and also cared for other children as a babysitter. Ms. Green interviewed Tony and Marquis in the same room because she thought that Marquis would feel more comfortable with his older brother in the room, since she was a stranger to him. Tony informed Ms. Green that he did not know what caused the marks and that neither his mother nor his babysitter knew what caused the marks. Ms. Green asked Marquis "who put the burn marks on Kaden?" but Marquis said he did not know.

Ms. Green did not see Kaden until the next day on April 12th at the home of the respondent. Ms. Green noted that Kaden was running around in his pajamas while she was in the home. The respondent was cooperative with the interview and investigation and provided the caseworker with contact information for the children's pediatrician and was forthcoming about the children's history with asthma. The mother explained that she worked three jobs, including one job cleaning offices overnight. Her regular child care routine involved school for Tony, Bumblebees R Us, Inc. daycare (hereinafter Bumblebees or daycare) for Marquis and [*6]Kaden, and then an after-school babysitter in her building for all three children. Ms. Y.'s teenage daughter picked Kaden up from the daycare center and transported him back to the home of Ms. Y. Tony and Marquis provided Ms. Green with the same daily school and daycare routine, consistent with what the mother reported to the caseworker. Ms. Green observed marks behind Kaden's ears, on the backs of his legs, and marks on the back of his neck. Ms. Green took photographs of Kaden with the agency phone, which are in evidence as Petitioner's Exhibit 2(a)-(d).

On April 12, 2016, Ms. Green went back to the mother's home and picked up all three subject children so that they could be interviewed by detectives at the Child Advocacy Center. Ms. Green observed the interview that Detective Jessica Fuentes did of Marquis, and also took more photographs of Kaden with the detective's phone which were admitted into evidence as Petitioner's Exhibit 3(a)-(d). Ms. Green noted that the mother informed her that the children spent the weekend of April 2nd with their godparents, and that she next saw the children on Sunday night, April 3rd, but did not notice any injuries on Kaden on April 3rd or on Monday morning, April 4th. The mother later learned of the marks on Monday evening when the babysitter told her about them, and she observed the marks for the first time when she picked Kaden up from the babysitter that evening. The mother indicated to the ACS caseworker that she did not know who burned Kaden, but that it could have been the babysitter or the godparents.According to Ms. Green, the mother continued with her regular child care arrangement in the days following April 4th. The mother further told Ms. Green that when she picked Kaden up from the babysitter on April 8th, she noticed more marks on Kaden's body. After the F.C.A. §1027 hearing was completed on April 19, 2016, the mother did rearrange her work schedule and began to use the children's aunt, Tawana B., as a babysitter for the children. The mother did continue to use Bumblebees initially after April 19th, but for the week of April 24, 2016, the children slept over the aunt's home for several days because of the mother's work schedule, and the distance between the mother's home and the aunt's home. The mother then began caring for the children herself the week of May 1, 2016.

On May 5, 2016, the caseworker made an unannounced visit to the mother's home and learned that the mother was at the hospital with Kaden. The mother told Ms. Green that Kaden had sustained bruises over his body, and she did not know how Kaden received these injuries. Ms. Green also took photographs of these injuries which were entered into evidence as Petitioner's Exhibit 5(a)-(i). According to Ms. Green, the injury on Tony's shoulder looked like a handprint. On May 6, 2016, ACS convened a Child Safety Conference and discussed the new injuries with the mother. According to Ms. Green, the mother stated that she did not know how these injuries occurred, and when pressed for an explanation indicated that it could have been "voodoo." The mother did not think that Kaden's older brothers could have caused the injuries. The mother indicated that these bruises occurred over the course of a couple of days, and that she would put Kaden to sleep and he would wake up in the middle of the night crying, and she would observe these bruises on his body.

The petitioner admitted the Bumblebees records as Petitioner's Exhibit 8. On Tuesday, April 5, 2016, Kaden's teachers documented that Kaden had "two consistent burns on lower right leg" as well as "bruises on the forehead" and "burn behind ear and bruising on the forehead." On April 6, 2016, Kaden's assistant teacher noted "burn on left foot." On April 11, 2016, the same assistant teacher noted "burns on left and right ears and scars on nose" and "back of neck and back have burns." The director of the daycare, Jessica Figuly, is the source of the Oral [*7]Report Transmittal (Petitioner's Exhibit 1) that was called into the State Central Register on April 11, 2016 at 11:27am. Curiously the Bumblebees records also contain a letter signed by Ms. Figuly, dated April 19, 2016, which states that "[w]e have never had any reason to suspect physical abuse, as we have never seen any marks or bruises on the children." No one from the daycare center testified at the fact finding.

NYPD Detective Jessica Fuentes also testified on behalf of the petitioner. Detective Fuentes testified that she has been employed as a detective in the Child Abuse Squad for approximately three years, and was in the Brooklyn Special Victims Unit for approximately three years prior to that. Detective Fuentes interviewed Tony and Marquis on April 12, 2016. Detective Fuentes interviewed Tony first, and then interviewed Marquis. The ACS caseworker, Ms. Green, a Safe Horizons worker, and Detective Fuentes' partner, Detective Flores, were observing the interviews from another room. Tony told the detective that he does not know how Kaden sustained the injuries, but he has heard the babysitter speaking about his mother using the lighter to burn Kaden.

According to Detective Fuentes, her interview with Marquis was very quick, and less than ten minutes long. She spent the majority of the interview trying to ascertain whether or not Marquis could tell the difference between the truth and a lie, and she came to the conclusion that Marquis was not able to do so, and that he was not swearable. Detective Fuentes showed Marquis a photograph of Kaden, what has been entered into evidence as Petitioner's Exhibit 3(c), and asked Marquis the following question: "how did Kaden get his boo-boos?" In response, Marquis stated, "a man, his mother and Delilah did it." Detective Fuentes attempted to ascertain the identity of Delilah or the man, however Marquis did not answer, and at that point Marquis was trying to get out the door of the interview room. Detective Fuentes described Marquis as "completely checked out" of the interview, and "antsy," so it was not possible to continue the interview with Marquis. Detective Fuentes stated that after the initial interview with Marquis she came to the conclusion that Marquis did not say the word "Delilah" but that he actually used the word "lighter," and that she was just not able to understand Marquis initially because his speech is not clear.

On April 14, 2016, Marquis was re-interviewed at the Brooklyn Child Abuse Squad. On that day, Detective Flores interviewed Marquis while Detective Fuentes observed the interview from another room. According to Detective Fuentes, there was a marked difference in the child's demeanor that day in that he was more calm and engaged than he was on April 12, 2016. According to Detective Fuentes, during that interview, without any prompting by her partner, Marquis spontaneously blurted out "mommy hurt KK with the lighter." Detective Fuentes explained that she knew that "KK" was the nickname that Marquis used for the subject child Kaden because of a previous conversation that she had with Marquis in the playroom prior to her initial interview of the child on April 12th. Detective Fuentes testified that Marquis was playing with blocks and toys with Kaden at the time, and she asked Marquis who did he come here with and who was he playing with, and he said "that's KK." He then identified "KK" as his brother.

Detective Fuentes also interviewed the respondent on April 12th. Detective Fuentes testified that the respondent did not provide any clear explanation for the burns on Kaden. First she stated that the other children could have done it, and then she stated that it could have happened in the godmother's care, or in the babysitter Ms. Y.'s care, and then she stated that the daycare center could have done it. The respondent further told the detective that Monday, April 4th was the first time she noticed marks on the child's legs, and that on April 8th she noticed [*8]marks on the child's neck. Detective Fuentes and her partner went to the mother's residence and the babysitter's residence on April 13, 2016. Detective Fuentes testified that upon entering the mother's residence, she observed soot and ash marks which appeared to be from cigarettes. Detective Fuentes also observed a lighter on the dresser in the mother's bedroom. The detective stated that she did not see any lighters in the babysitter's home.

Detective Fuentes subsequently interviewed Tony on June 1, 2016, however Tony indicated that he did not know how the burns or the bruises happened. Detective Fuentes also indicated that she chose not to interview Marquis on June 1st because Tony, a six-year-old, was a more reliable source than a three-year-old.

The petitioner also called Ms. Helene Marcel, ACS child protective supervisor, as a witness. Ms. Marcel testified to the conversation that she had with the mother at the child safety conference on April 15, 2016. During this conversation, the mother reiterated that the children spent the weekend prior to April 4th at their godparent's house and that she was notified of the marks on Kaden by the daycare on Tuesday, April 5th. The mother also stated that the daycare provider made her aware of additional marks on Kaden's body on April 8th. Ms. Marcel testified that the mother stated she did not know where Kaden's marks came from. Ms. Marcel stated that a subsequent report was called in on May 6th alleging that Kaden had additional bruises on his body, and the mother indicated that she did not know how Kaden sustained these marks. The mother denied causing the marks herself, and also stated that Kaden's siblings would not cause the injuries. The mother reported that she put Kaden to bed on May 3rd and did not see any bruises or marks on the child, and that the next morning Kaden woke up with a swollen head and bruising.

Based on the credible testimony of the petitioner's expert witnesses, the testimony of the ACS caseworker and ACS supervisor, the testimony of Detective Fuentes as to Marquis' statement that "mommy hurt KK with the lighter," the photographs of Kaden's injuries and the medical records delineating Kaden's various injuries, the Court finds that the petitioner has established a prima facie case of child abuse against the respondent by demonstrating that Kaden sustained two inflicted burns on the back of his right calf on or about April 5, 2016. The Court further finds that the petitioner has established a prima facie case of neglect based on the unexplained handprint shaped bruise on Kaden's shoulder. Although the Court recognizes that the mother worked long hours in the days and weeks prior to the discovery of the burns, she always remained the primary caretaker of Kaden and his brothers. She similarly remained the primary caretaker of the children after the children were released to her care following the F.C.A. §1027 hearing and in the days and weeks leading up to the injuries discovered on May 5, 2016. Ms. Daniele, a child abuse expert, testified credibly and unequivocally that these burns were consistent with someone holding a hot lighter to the subject's child's leg. Dr. McGrory, an expert in pediatric medicine, testified that several weeks later, Kaden had a handprint shaped bruise on his shoulder consistent with someone grabbing or hitting the child. At the same time, Kaden presented at the emergency room with swelling to the head and a bruise above his eye. In Dr. McGrory's opinion, those injuries were at different stages of healing and not likely the result of one fall. Dr. McGrory further indicated that lab results showed that Kaden did not have an underlying bleeding disorder.

The burden now shifts to the respondent to rebut the presumption of culpability by offering a reasonable and adequate explanation for the injuries or by showing that the child was not in her care when the injury was sustained. See Matter of Philip M., supra; Matter of [*9]Nicholas S., 968 N.Y.S.2d 654 (3rd Dep't 2013). In the instant case, the Court finds that the respondent has failed to rebut the presumption of abuse and neglect.

The respondent presented the testimony of psychologist Dr. Deryn Strange[FN1] to cast doubt on the reliability of Marquis' out of court statements. Dr. Strange is an associate professor of psychology at John Jay College of Criminal Justice, and her research and teaching focuses on memory distortion. Dr. Strange's doctoral thesis addressed factors that affect the development of children's false memories. Dr. Strange testified that there is significant cause for concern about the reliability of Marquis' statements given the potential for suggestive questioning. Dr. Strange indicated that in evaluating this case and the statements made by Marquis, she reviewed the transcript of April 19, 2016 which included the testimony of Detective Fuentes, Oral Report Transmittals, ACS records, hospital records and photographs depicting Kaden's injuries, and a report from the daycare.

In her testimony, Dr. Strange focused on the repeated questioning of three-year-old Marquis. She was concerned about the initial interview done by ACS because Tony and Marquis were interviewed together in the same room, and Marquis' report could have been "corrupted" by what he was hearing from his older sibling. It is important to note that Tony never made any disclosures about Kaden's injuries to any interviewer throughout the investigation. Dr. Strange further testified that after reviewing the testimony of Detective Fuentes, she was also concerned about the possibility that Kaden might have heard either his brother or babysitter talking about the mother using a lighter to burn Kaden. Dr. Strange indicated that she did not review the testimony of the caseworker, and the caseworker's interview of the child was not recorded, however, the caseworker's possible usage of the word "burn" in questioning the child could be suggestive because the child may not be familiar with that word. Dr. Strange stated that Marquis is more likely to use the phrase "burn" verbatim in the future since children of Marquis' age are likely to repeat phrases they have heard. Dr. Strange did clarify that asking who burned Kaden is not suggesting that it was the mother who inflicted the injury.

Dr. Strange emphasized that research has shown that repeated questioning of young children may cause a child to change their response and assume that their first response was wrong. Dr. Strange indicated that Detective Fuentes asked Marquis appropriate open ended questions, and that on April 14, 2016, Marquis did make a spontaneous statement to Detective Flores that "mommy hurt KK with the lighter." However, Dr. Strange remained concerned about the initial interview of the ACS caseworker, and noted this was the third time he was questioned about these injuries.

Dr. Strange conceded that she never met Marquis, did not have all the transcripts in this case, and that none of the interviews of Marquis were recorded so she had no way of knowing the exact language that was used by Marquis' interviewers. Dr. Strange could only testify that there is a "potential for suggestion" based on the research on the average three-year-old. Dr. Strange also testified that the potential for suggestion does not necessarily mean that Marquis' statement should be discredited all together. She also acknowledged that there was no evidence in the record that Marquis heard or overheard any discussion about Tony being burned with a lighter.

The respondent testified on her own behalf and informed the Court of all the various caretakers that the children had from April 2, 2016 up through the children's removal on May 6, 2016. The mother explained how she was working three housekeeping jobs to support her children, and the daily child care arrangement that involved dropping the oldest child Tony off at school at 8:00am, dropping Marquis and Kaden off at the daycare center at 9:00am, doing laundry, cooking, cleaning, then picking up Tony from school at 2:30pm, picking up Marquis from daycare, and then bringing the children upstairs to the babysitter, Tiffany Y., before starting work at 4:00pm. The mother clarified that Kaden stayed at the daycare center until 5:00pm because she had a daycare voucher for him, and was then transported back to the babysitter's home by the babysitter's teenage daughter, Cheyenne. Ms. Y. cared for her own six children as well as two other children. The mother testified that she came home from work as late as 1:00am or 2:00am and picked up her sleeping children from Ms. Y., and then put them back into bed in her own apartment. The mother explained that the children slept overnight at their godparents' home from Saturday, April 2nd until Sunday, April 3rd and the children came home on Sunday afternoon. The mother gave Kaden a bath that Sunday evening but did not notice any marks on the child's body.

The mother indicated that she first became aware of the injuries on Kaden on Monday, April 4, 2016 at approximately 7:30pm, when Ms. Y. notified her of red marks on Kaden that looked like burns. When the mother returned from work on Monday evening, she observed marks that looked like burns on Kaden's lower legs and foot. The mother put Neosporin ointment on Kaden's skin. According to the mother, she had a conversation with the daycare center on Wednesday, April 6th about the marks on Kaden's body, and she made a plan with the daycare to limit Kaden's caretakers so that only she, the babysitter and the daycare providers had contact with Kaden. On Friday, April 8, 2016, the mother picked up Kaden after work and noticed that he had red marks on the back of his neck and the back of his ears. The mother testified that she smokes "any chance I get" when the kids are "safe and sound," and estimated that she smokes four to five cigarettes per day.

The mother testified that in February 2016, she observed Tony playing with a lighter while in his room. The mother stated that she did not recognize this lighter and that it did not belong to her. According to the mother, she also found a lighter inside the pocket of Tony's gym shorts on May 6th, the day the children were removed from her care. The mother explained that she discovered the lighter while she was packing the children's clothes. The mother was specifically packing Tony's gym shorts, which she kept under Tony's pillow. She further explained that the last time Tony wore these gym shorts was at his godparents' home on the weekend of April 2nd, and since that time she had not washed them, but she put the shorts under Tony's pillow because "Tony likes to use things to put under his nose to sniff," and she left these shorts there so that if Tony "wants anything to sniff he can sniff his shorts." The mother further indicated that although she did laundry and changed the sheets every week, she put the gym shorts right back under Tony's pillow after changing the sheets. The mother claimed that the lighter she found in the shorts was not her lighter, and that this lighter came from the godparents' house. The mother stated that finding the lighter in Tony's pocket made her worry that Tony was the one who burned Kaden.

With regards to the bruise above Kaden's eye, the respondent testified that this mark was there when she picked him up from his aunt's home on Friday, April 29th. The respondent also claimed that Kaden fell out of his crib on Monday, May 2nd. She attributed the swelling on [*10]Kaden's head to the fall on Monday evening. The mother stated that she was cooking at the time and placed Kaden in his crib so that she could control his movement. She indicated that Kaden did not want to be in the crib, and that when she checked on him he was making a lot of noise, and pulling on the bars of the crib. When she checked on him again, she saw him face down on the floor, with his forehead to the ground. The mother surmised that Kaden used the stairs attached to the bunk bed to climb out of the crib, as she had seen him climbing on those stairs in the past. The mother also described Kaden waking up in the middle of the night screaming on the evening of May 2nd, and observed that his head was swollen. She attributed the swollen head to Kaden falling out of the crib. The mother stated that Kaden also woke up screaming in the middle of the night on Tuesday, May 3rd and Wednesday, May 4th, and that he was waking up with bruises on his body. According to the mother she decided to take Kaden to the hospital on Thursday morning because she was concerned that Kaden was waking up with bruises and marks on his body, and she wanted him to get blood tests done to see if he had a specific illness.

The mother indicated that she took Kaden to the pediatrician on Thursday morning, May 5th, although she conceded that she had no documentation for that pediatric visit. At the time the mother took Kaden to the hospital, Kaden had swelling on the side of his head, a bruise above his eye, and had a dark mark in the shape of a handprint on his side. The mother described Kaden as a very active child at 19 months old and always trying to keep up with his older brothers. The mother stated that Kaden's head was "too big for his body" and he was always bumping his head on furniture or the edges of the walls and always falling. Significantly, the mother further noted that if the children were returned to her care, she would put the children back into Bumblebees daycare, because she has a great relationship with the teachers and Tony has been going there since he was three-years-old, and Kaden has been going there since he was six-weeks-old. The mother clearly did not believe that staff at Bumblebees inflicted the injuries on Kaden.

Both the respondent and the attorney for the children[FN2] argue that the mother has rebutted the prima facie case with evidence that the mother was not the sole caretaker of Kaden, and that many other individuals had access to Kaden in the relevant time period. It is significant to note that there are two sets of injuries to Kaden, and it is critical to understand exactly who had access to the child in both time periods. The mother's argument fails, in part, because she is the common caretaker in the children's lives for both sets of injuries. The children lived with their mother. The children spent the weekend of April 2-April 3, 2016 with their godparents but they returned to the mother's care by the evening of April 3rd, and the burns were not documented by the daycare center until April 5, 2016. According to the mother, April 3rd was the last time that the godparents saw the children prior to their removal on May 6, 2016. Prior to April 5, 2016, Kaden was at the day care center Monday through Friday, from 9:00am until 5:00pm. After day care, Kaden was cared for by Ms. Y. until the mother came home from work after midnight. Ms. Y.'s husband, Ms. Y.'s mother, and her mother's paramour were regularly in the home and assisting Ms. Y. with the children, but the children returned to the home of the mother each night.

The mother claimed that she stopped using Ms. Y. as a babysitter as of Tuesday, April [*11]12, 2016. The instant petition was filed six days later on April 18th. The mother further testified that in the initial days after the Court denied the remand application on April 19th, all the children continued to be at home with her, and Kaden continued to attend Bumblebees. Kaden stopped going to Bumblebees on Friday, April 22, 2016. Thereafter, the mother began using the aunt, Ms. B., as a babysitter for the children. For the week of April 25, 2016, all three children slept in the home of Ms. B. in East New York so that the mother would not have to pick the children up and transport them back to her home in Red Hook in the middle of the night. The mother indicated that she went to the home of Ms. B. every day and spent time with the children before going to work. The mother brought the children back to her home on Friday, April 29, 2016. The children then slept in the mother's home through the weekend. The mother further indicated the week of May 2nd she limited her work hours to a two-hour job on Tuesday, May 3rd. According to the mother, her friend, Nina Nieves, watched the children for about three hours on that day.

The mother has failed to establish that the injuries took place when Kaden was in the exclusive care of someone other than herself. Matter of Davion E., 139 AD3d 944 (2nd Dep't 2016). The mother is the only respondent in this case, and the Court is not evaluating whether other caretakers or babysitters should be held responsible for the injuries. While the babysitters for the children changed, the mother remained the constant in the children's lives between the first set of injuries to Kaden and the second. The children stopped going to the home of Ms. Y. more than three weeks prior to Kaden sustaining the second set of unexplained marks and bruises, and Kaden also stopped going to Bumblebees approximately twelve days prior to his emergency room visit on May 5, 2016.

Furthermore, the mother's testimony implying that Tony, Kaden's six-year-old brother, could have caused the burns is completely unpersuasive. This theory seems to have been advanced for the first time during the fact finding proceeding. It does not appear that the mother told the investigating ACS caseworker or the caseworker's supervisor or Detective Fuentes about seeing Tony with a lighter in February or finding a lighter in Tony's gym shorts on May 6th. This is critical information that, if true, the mother should have reported during the course of the initial investigation. The mother's explanation about how Tony wore the gym shorts in early April and then she placed the shorts under the child's pillow for one month even though she laundered the sheets on a weekly basis, is contrived and causes the Court to doubt the veracity of the mother's testimony as a whole.

The mother's testimony about how all the caretakers in Kaden's life smoked and had lighters was exaggerated and self-serving. The mother testified that all the adults in the home of Ms. Y.'s home smoke, including Ms. Y. herself, Ms. Y.'s husband, Ms. Y.'s mother, and Ms. Y.'s mother's paramour. She claimed that Ms. Y. "has lighters everywhere" and she has seen the lighters "laying around the house." The implication that the burns occurred while Kaden was at his godparents' home since they have multiple cigarette lighters is similarly unpersuasive especially given the mother's testimony that she bathed Kaden thoroughly after he returned from the godparent's home on April 3rd. The mother unequivocally stated that she saw no marks on the child's body. Notably, when the Court initially questioned the respondent about how many lighters she owns, the mother stated that she did not own any lighters. Upon further inquiry the mother stated that she only had one lighter in the house, and that she normally kept the lighter in her "smoking jacket" which she wore into the hallway, when she went to smoke. However, earlier in her testimony, the mother stated that she kept a lighter inside a drawer in her room. [*12]Significantly, when Detective Fuentes went out to the home of the mother, she noted that she saw a lighter out on the mother's dresser but did not see any lighters in the home of Ms. Y. The mother also conceded, on cross examination, that she never told ACS or the detectives about the lighters that she saw at Ms. Y.'s home. When asked about this she defensively responded, "it was your job to find out what was going on in her house."

In Matter of Matthew O., supra, the Appellate Division, First Department held that the inability of ACS to pinpoint the time and date of each injury and link it to an individual respondent is not fatal to the establishment of a prima face case against all respondents. In that case, an abuse petition was filed against the mother, father, and nanny who worked for the family twelve hours a day, five days per week. The infant in Matthew O. sustained seven distinct injuries over a three-month period, but none of the injuries could be dated with certainty. Expert testimony established that one of the skull injuries was less than three months old and that other injuries were within one week old. All three respondents denied culpability, but none of them established that the child was not in his or her care for any of the injuries. In the instant case, although the mother denied causing the burns and bruises on Kaden's body, she did not establish that Kaden was not in her care at the time of any injuries. The mother always remained the primary caretaker for the subject children. Neither the mother's own denial nor her attempts to implicate her six-year-old son Tony, the babysitter, or the godparents is sufficient to rebut the prima facie case of abuse. See Matter of Seamus K., supra, Matter of Matthew O., supra.

With regards to the statements of three-year-old Marquis, the mother argues that the Court should disregard the statements of Marquis, and notes that in Judge Darvil's decision denying the removal, he expressed concern over the reliability of Marquis' statements because of the various interviews the child underwent. At fact finding, this Court is not bound by the F.C.A. §1027 decision that was issued over seven months ago, and it is significant to note that the F.C.A. §1027 hearing addressed the narrow issue of whether the children would be at imminent risk of harm if they were to remain with their mother, and whether orders could be put in place to ameliorate the risk. It is also important to note that two weeks after this order was issued the subject children were remanded because of the new unexplained marks and bruises that were discovered on Kaden's body. This Court has now had the benefit of hearing all the evidence at a fact finding hearing. This Court has heard the testimony of seven witnesses, including the testimony of Detective Fuentes, a trained detective and nationally certified child interviewer, as opposed to only the testimony of the ACS caseworker relaying her observations of a detective's interviews. It is undisputed that the subject child Marquis was not swearable, and Detective Fuentes was clear about that in her testimony. This Court would expect that to be the case and would be surprised if any three-year-old child was deemed swearable. However, the hearsay exception for the admissibility of a child's statements pursuant to F.C.A. §1046(a)(vi) is not subject to a swearability requirement. The statute provides that such statements relating to allegations of abuse or neglect "shall be admissible in evidence." F.C.A. §1046(a)(vi). It is up to the Court to assess what weight to assign to such statements. The statute further provides that the child's statements, if uncorroborated, are not sufficient to sustain a finding of abuse or neglect, but is also explicit that "any other evidence tending to support the reliability of the previous statements shall be sufficient corroboration." F.C.A. §1046(a)(vi) (emphasis added).

It is well established that the Family Court has considerable discretion in deciding whether a child's out of court statements have been reliably corroborated, and whether the record [*13]as a whole supports a finding of abuse or neglect. Matter of Nicole V., 71 NY2d 112 (1987); Matter of Amber C., 104 AD3d 845 (2nd Dep't 2013); Matter of Kassandra V., 90 AD3d 940 (2nd Dep't 2011). Furthermore, a "relatively low degree of corroborative evidence is sufficient in abuse proceedings." Matter of Joshua QQ, 290 AD2d 842, 843 (3rd Dep't 2002); Matter of Alena D., 125 AD2d 753, 754 (3rd Dep't 1986). Notably the petitioner only needs to prove that it is more likely than not that the abuse occurred. Matter of Beautisha B., supra.

Here, the Court finds that Marquis' statement that "mommy hurt KK with the lighter" is amply corroborated by Ms. Daniele's testimony that Kaden suffered two inflicted second degree burns to the back of his calf which were consistent with the top of a cigarette lighter, evidence that several weeks later Kaden sustained additional unexplained bruises while in the care of the mother, particularly bruises on his shoulder consistent with a handprint, the medical records, and the photographs depicting the various injuries to the subject child Kaden. While the Court found the testimony of Dr. Strange to be credible, she did not evaluate the case with the benefit of the full fact finding record, and she was only able to opine about the potential for suggestion. Dr. Strange specifically stated that the potential for suggestion does not mean that Marquis' statements should be discredited all together. Even if this Court was to completely disregard Marquis' statements as unreliable, the Court is still left, at the very least, with two inflicted second degree burns on the back of Kaden's calf and an inflicted handprint shaped bruise on Kaden's shoulder several weeks later. No expert testimony was presented to rebut the injuries or to refute that the mother remained the primary caretaker of the children throughout.

The Court also finds Matter of Ameillia RR., 112 AD3d 1083 (3rd Dep't 2013) to be instructive in this case. In that case, the Appellate Division, Third Department, found that the petitioner established a prima facie case of neglect by submitting proof that the three-year-old child sustained bruises to her hands, feet, legs, ears, eye, forehead and back and a cut to her lip. Id. The petitioner presented the testimony of a physician who examined her and found that the injuries were more likely caused by abuse than an accident, due to the number, sizes, locations and different stages of healing of the bruises. Id. The physician further testified that while some of the bruises may have been the result of accidents, bruises on the child's ears and fingertips were likely caused by non-accidental means. Id. The physician further noted that, from the age of the bruises, that the injuries occurred while the child was in the care of the respondent mother and her live-in boyfriend. In Ameillia RR., the mother called an expert pediatrician who testified that many of the bruises could be caused by accidental means but some were more likely not accidental, specifying that finger marks were visible in the bruises on the feet. The mother testified that the child was active and bumped into things often. The Court found that the mother's proffered explanations were not all consistent with the type or age of the bruising, and she offered no explanation for some of the injuries. Id.

Similarly, in this case, the Court recognizes that an active toddler, especially one who is learning to walk, sustains bumps, bruises, and scrapes in the regular course of daily activities. The mother's explanation that Kaden was waking up in the middle of the night with bruises appearing on his body is not credible. The medical proof established that there was no organic or medical cause for the injuries and that Kaden did not suffer from any bleeding disorder.Furthermore, even if the Court was to credit the mother's explanation that Kaden accidentally fell out of the crib and bumped his head and that the bruise above the eye occurred while he was at Ms. B.'s house, there is still no explanation for the handprint shaped bruise on Kaden's shoulder. Thus, the respondent's efforts to rebut the evidence of parental culpability fall [*14]short in the face of so many different injuries to Kaden that occurred at different times.

Courts have found that the "credibility of the 'accident' explanation diminishes as the instances of similar alleged 'accidental' injury increase." See Matter of Vincent M., 193 AD2d 398, 402 (1st Dep't 1993), quoting People v. Henson, 33 NY2d 63, 73 (1973); see also Matter of Briana R., 236 AD2d 830 (4th Dep't 1997) (Family Court erred in accepting the explanations proffered by respondents stating that the court considered each injury as an isolated condition and "ignored the pattern of repeated injuries coupled with the well-worn excuse that each injury was accidental"). In Matter of Maddesyn K., the Appellate Division, Third Department, noted:

[w]e find that whereas a single incident might be plausibly explained as the unlikely result of a typical accident, the extent and number of [the child's] injuries render it far more probable than not that at least some of [the child's] injuries were not caused by the accidents described by respondents. 63 AD3d 1199, 1201 (3rd Dep't 2009).

Contrary to the respondent's arguments on summation, evidence that showed that the respondent was cooperative with the ACS investigation and medical personnel, interacted appropriately and lovingly with the children, and demonstrated concern for Kaden when he was in the hospital, does not sufficiently rebut the petitioner's prima face case of abuse and neglect in this case. The Court cannot dismiss the petition against the respondent based on these factors, especially when the medical evidence presented by the petitioner is unrebutted. It was incumbent upon the respondent to provide a reasonable explanation for the injuries. Matter of Natalie AA, 130 AD3d 50 (3rd Dep't 2015). This she failed to do.

The Court further concludes that a finding of derivative abuse and neglect as to the subject children Tony and Marquis is warranted. 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 Appellate Division, 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, 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 Tony was only six-years-old and Marquis was three-years-old at the time of the filing of the petition. Based on the evidence that Kaden sustained two non-accidental burns to the back of the calf, and a subsequent non-accidental handprint shaped bruise on his shoulder while in the care of the mother, the Court finds that the mother has such a fundamental defect in her understanding of parenting duties that it creates a substantial risk of harm to any other child in their care. See Matter of Daniel W., 37 AD3d 842 (2nd Dep't 2007) (derivative abuse finding upheld given nature of direct abuse, its duration and the circumstances of its commission).

Based on all the evidence presented, the Court finds that the petitioner has established by a preponderance of the evidence that the respondent abused and neglected Kaden as defined under F.C.A. §1012. Furthermore, the Court finds that the respondent derivatively abused and neglected the subject children Tony and Marquis.

DATED: December 7, 2016

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Hon. Lillian Wan Footnotes

Footnote 1: Dr. Strange was qualified as an expert in psychology on consent of all counsel.

Footnote 2: The attorney for the children is not supporting a finding in this case, and advocates for a dismissal of the petition.