Matter of Greysen G. (Liz C.)

[*1] Matter of Greysen G. (Liz C.) 2018 NY Slip Op 51538(U) Decided on October 19, 2018 Family Court, Bronx County Cooper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2018
Family Court, Bronx County

In the Matter of Greysen G. PRINCE G. AMAR G. Children Under Eighteen Years of Age Alleged to be Neglected and Abused by

against

Liz C. PATRICK G., Respondents.



NAxxxx-x/17



Counsel Appearances:

New York City Administration for Children's Services900 Sheridan Avenue Bronx, New York 10451By: Eve Serfaty Esq. Michael DeMattio, Esq.Attorney for the Respondent Father445 Hamilton Street, Suite 1102White Plains, New York 10601 Joseph W. Murray, Esq.Attorney for the Respondent Mother125-10 Queens Boulevard, Suite 5Kew Gardens, New York 11415 Legal Aid Society- Juvenile Rights DivisionAttorney for the Children Amar, Greysen and Prince900 Sheridan AvenueBronx, New York 10451By: Debra Gambella, Esq.
Sarah P. Cooper, J.

PROCEDURAL HISTORY

On March 30, 2017, ACS initiated a res ipsa abuse case against Liz C. [hereinafter "Respondent Mother"] and Patrick G. [hereinafter "Respondent Father"] by the filing of petitions alleging that they had abused and neglected their child Amar, and derivatively abused and neglected their children Greysen and Prince, within the meaning of Family Court Act § 1012. The petitions specifically allege that the child Amar suffered from acute liver failure due to unexplained acetaminophen [FN1] toxicity while admitted to Columbia Presbyterian Hospital [hereinafter "Columbia Presbyterian"]. The petitions further allege that acetaminophen was not administered by hospital staff and neither Respondent could provide an explanation for why the child Amar had elevated acetaminophen toxicity. Additionally, the petitions allege that the Respondents refused medical advice to have the child Amar taken off seizure medication and to have him re-evaluated for his central apnea diagnosis. Both parents appeared in court on March 30, 2017 and issue was joined. The Court ordered that the children be temporarily directly placed with the children's maternal great grandmother, Magdalia C. [hereinafter "Ms. C"], to reside in the home of the Respondents. The Court ordered that the Respondents were permitted to continue to reside in the home provided they did not have any unsupervised contact with the children and provided they did not administer any medication to the children.[FN2]

The fact-finding hearing in this matter commenced on November 14, 2017 and continued over the course of several dates [FN3] . Child Protective Specialist Auguet [hereinafter "CPS Auguet"] and Ms. Powell, LPN [hereinafter "Nurse Powell"],[FN4] a nurse from Pioneer Home Health Care, testified on behalf of the Petitioner. Additionally, Dr. Mandy O'Hara [hereinafter "Dr. O'Hara"] testified on behalf of the Petitioner as an expert in pediatrics and child abuse pediatrics [FN5] . The maternal great-grandmother, Ms. C, testified on behalf of the Respondent Mother. Amar's pediatrician, Dr. Machuco, testified, as a fact witness only, on behalf of the Respondent Father. Additionally, the Respondent Mother and the Respondent Father each testified on their own behalf.

The Court accepted into evidence Dr. O'Hara's curriculum vitae (Petitioner's Exhibit 1), Columbia Presbyterian medical records relating to Amar (Petitioner's Exhibit 2), Montefiore [*2]Hospital medical records relating to Amar (Petitioner's Exhibit 3), Dr. O'Hara's Medical Summary dated March 27, 2017 (Petitioner's Exhibit 4), Child Abuse and Neglect International Journal Article "The Perpetrators of Medical Child Abuse (Munchausen Syndrome By Proxy) - A Systemic Review of 796 Cases" by Gregory Yates and Christopher Bass (Petitioner's Exhibit 5), and Certified Pioneer Home Health Care records from April 2017 (Petitioner's Exhibit 6).

On October 12, 2018, the Court issued an oral decision, indicating that a written decision would follow, finding that the Petitioner had established, by a preponderance of the evidence, that the Respondent Mother abused the child Amar pursuant to Family Court Act § 1012. Further, the Court found that the Petitioner had established, by a preponderance of the evidence, that the children Greysen and Prince were derivatively abused as a result of the Respondent Mother's abuse of Amar. The Court further found that the Petitioner failed to meet their burden in establishing, by a preponderance of the evidence, that the Respondent Father abused or neglected any of the children. Accordingly, the petitions against the Respondent Father were dismissed with prejudice.

LEGAL ANALYSIS & DISCUSSION

The Respondents are the parents of three children: Prince, Greysen and Amar.

The child Amar was born prematurely at 32 weeks with low birth weight. When Amar was just six-months old, the Respondent Mother alleged she witnessed Amar go into cardiac arrest, so she brought him to Montefiore Hospital [hereinafter "Montefiore"] where he was admitted. During his hospitalization at Montefiore, Amar was diagnosed with respiratory acidosis,[FN6] as well as liver failure caused by an unexplained elevated level of acetaminophen.[FN7]

Upon Amar's discharge from Montefiore, Amar received twenty-four-hour nursing care at home. Additionally, Amar received twenty-four-hour respiratory support in the form of a nasal cannula that provided oxygen during the day and a mask that provided pressure to maintain respirations at night. Amar also had a g-tube [FN8] that was inserted while at Montefiore to support his feeding.

Amar was admitted to the pediatric intensive care unit (hereinafter "PICU") at Columbia Presbyterian on February 22, 2017 when he was twenty-one months old. He presented at admission with lethargy and respiratory distress. In addition to the interventions in place since his discharge from Montefiore, at the time of Amar's admission to Columbia Presbyterian, the Respondents alleged that Amar had a history of seizure disorder for which he was prescribed Keppra (an anti-seizure medication) and a diagnosis of central apnea.[FN9]

During Amar's admission to Columbia Presbyterian, a blood test revealed that Amar was once again suffering from respiratory acidosis. Due to Amar's reported history of central apnea, Amar received intubation for further breathing support. Additionally, because of Amar's reported history of seizures, an electroencephalogram [hereinafter "EEG"] was placed to record seizure activity.[FN10] The Respondents were directed to push a button when they thought Amar was experiencing unusual behavior or motor activity that they thought was consistent with a seizure. Throughout Amar's hospitalization, the Respondents pushed the button multiple times. However, none of the six EEGs that were administered showed seizure activity.

Amar remained in the PICU until he stabilized and returned to baseline. On March 1, 2017, Amar was transferred to the general pediatrics floor. Patients on the general pediatrics floor are monitored less closely than patients in the PICU. The physical layout of the PICU provides for much closer supervision than on the general pediatrics floor and nurse checks are much more frequent in the PICU. After Amar's transfer to the general pediatrics floor on March 1, 2017, it was anticipated that Amar would be discharged within the next few days.[FN11] However, on March 3, 2017, Amar had an acute and unexplained change in his condition characterized by altered mental status, documented symptoms of lethargy, crying, and remaining awake all night. As a result, medical staff began testing to determine the cause behind the sudden deterioration of Amar's condition.

Seizures were ruled out as a possible cause because Amar's EEGs showed no seizure activity. A blood test was administered and once again it was determined that Amar was suffering from respiratory acidosis. Given that respiratory acidosis can cause respiratory failure, Amar was moved back to the PICU for closer monitoring and treatment.

While central apnea can cause respiratory acidosis, there were no witnessed apneic events during Amar's hospitalization at Columbia Presbyterian. Magnetic resonance imaging and magnetic resonance spectroscopy of Amar's brain done at Columbia Presbyterian were normal in that they showed no anatomic brain abnormality. Further, a sleep study previously administered during Amar's hospitalization at Montefiore showed normal results in that neither apnea nor obstruction was identified.[FN12]

Amar underwent extensive testing during his hospitalization to rule out other possible medical explanations for his acute liver failure, as well as for his respiratory acidosis upon admission and his respiratory acidosis in the general pediatric ward. These tests included abdominal imaging to assess the anatomy of his liver, a comprehensive metabolic workup, and extensive genetic testing. The ultrasound of the liver showed normal anatomy and no obstruction. All of Amar's metabolic and genetic testing was normal as there was no evidence of an underlying genetic condition or metabolic disease.

Once Amar was in the PICU, the Respondent Mother suggested to the doctor caring for [*3]Amar that he check Amar's liver function. Liver function tests were administered, and the tests indicated that Amar was going into acute liver failure.[FN13] A blood test was ordered, as is standard practice once liver failure presents, and the results of the test showed that Amar had alarmingly high levels of acetaminophen in his blood which was causing his liver failure. An acetaminophen level above 100 is considered a medical emergency and life threatening. Amar's level registered above 100 and as such, he was immediately administered a medicine that acts as an antidote to an acetaminophen overdose.

During Amar's hospitalization at Columbia Presbyterian, no doctor or other medical staff prescribed acetaminophen for Amar or administered acetaminophen to Amar.[FN14] Indeed, Amar's allergy to acetaminophen was identified in his medical record from the moment Amar came to Columbia Presbyterian in February 2017. A formal hospital review through pharmacology was initiated after the discovery of Amar's elevated acetaminophen level. The review verified that acetaminophen was nesver ordered for Amar. Further, Amar was neither prescribed nor administered any medication with an acetaminophen component.[FN15]

Amar's unexplained elevated acetaminophen levels, which had caused his acute liver failure, raised suspicion that the Respondents were medically abusing Amar. As a result, Dr. O'Hara was consulted by PICU staff on March 8, 2017 and one-to-one supervision was instituted meaning that a hospital staff member remained at Amar's bedside at all times. Notably, despite the fact that one or both of the Respondents consistently remained at Amar's bedside during the time one-to-one supervision was in place, the Respondents reported no apneic events.

Dr. O'Hara testified on behalf of the Petitioner as an expert in pediatrics and child abuse pediatrics. Dr. O'Hara is board certified in general pediatrics and child abuse pediatrics. She works as the attending child abuse pediatrician at Columbia Presbyterian.

As part of her consultation on Amar's case, Dr. O'Hara did a comprehensive review of Amar's entire medical record from Columbia Presbyterian, including any past medical history that was reported by the doctors which included prior genetic testing done on Amar. Additionally, Dr. O'Hara met with both Respondents who provided Amar's past medical history and Dr. O'Hara contacted Amar's primary physician, Dr. Machuca. Dr. O'Hara also consulted with Dr. Cahill, the child abuse pediatrician at Montefiore Hospital.

Dr. O'Hara reached the conclusion that one or both of the Respondents were medically [*4]abusing Amar. Dr. O'Hara testified that medical child abuse [hereinafter "MCA"], formally known as Munchausen Syndrome by Proxy [hereinafter "MSP"], is a type of child maltreatment whereby the victim experiences harmful or potentially harmful medical procedures, tests and treatments due to symptoms or illnesses that are falsified, exaggerated, fabricated or induced by a caretaker to convince doctors that medical care is necessary.

Dr. O'Hara testified regarding the factors that are considered in diagnosing MCA. A suspicion of MCA arises when there are patterned repeat events meaning that the same injury, circumstance or event in a child occurs multiple or repeated times. In Amar's case, Dr. O'Hara noted that during his hospitalizations at both Montefiore and Columbia Presbyterian, Amar suffered from liver failure due to unexplained toxic levels of acetaminophen. Further, during both hospitalizations, Amar was doing better and near discharge when he was found to have an acute life threatening event [hereinafter "ALTE"], specifically altered mental state and respiratory acidosis, requiring him to be rushed back to the PICU. Dr. O'Hara explained that multiple ALTE events can be associated with medical child abuse. Further, when the ALTE occurred during Amar's hospitalization at Montefiore, a blue tinged fluid with a sweet smell was found coming out of Amar's nasogastric tube on two separate occasions for which there was no medical explanation. Further, Amar's pupils were enlarged and dilated which raised the suspicion that he was exposed to a toxin.

A suspicion of MCA also arises if someone sees a caregiver doing something to a child to fabricate or cause illness. In Amar's case, a nurse in the PICU observed the Respondent Mother tampering with Amar's feeding tube. The Respondent Mother claimed she was only closing the feeding tube because it had been left open.

During her testimony, Dr. O'Hara referenced a study that was done on the perpetrators of MCA. That peer-reviewed journal article, in evidence as Petitioner's Exhibit 5, included the most comprehensive study of MCA perpetrators ever done to date. The results of the study found that 97.6% of all perpetrators of MCA are female, 95.58% are the child's mother, 75.8% of them are married, 70.4% have a history of obstetric complications, and nearly half of them identify as a healthcare professional. The authors note in the article that, while it was found that nearly half the perpetrators of MCA identify themselves as a healthcare professional, that finding should be treated with caution as pathological lying is also common among these perpetrators. Further, 30.9% of all perpetrators of MCA suffer from factitious disorder imposed on self [hereinafter "FDIOS"].

The Petitioner Established a Prima Facia Case of Abuse

A child is abused, within the definition of Family Court Act § 1012 (e)(i), when a parent "inflicts or allows to be inflicted 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." A finding of abuse does not require that the child actually sustain a serious injury but rather, that the respondent placed the child at substantial risk of a serious injury. In re Angelique H., 215 AD2d 318 (1st Dept. 1995).

Family Court Act § 1046(a)(ii) provides that proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect. Therefore, a prima facie case of abuse may be established by evidence of the injury and evidence that the respondents were the [*5]caretakers of the child at the time the injury occurred. Matter of Xavier F. (Yvette E.), 48 Misc 3d 1204(A) (Kings Co. 2015). The statute authorizes a method of proof which is closely analogous to, and modeled after, the negligence rule of res ipsa loquitur. Matter of Philip M., 82 NY2d 238 (1993). The application of this method of proof has not been limited to cases where the child is never out of the parent's control but rather, it has also been applied where the parent has primary custody during the critical period when injury was sustained. Matter of Tara H., 129 Misc 2d 508 (Westchester Co. 1985).

Once the petitioner has established a prima facie case of abuse, the burden of going forward shifts to the respondent to rebut the evidence of parental culpability. Id. However, the burden of proving child abuse always rests with Petitioner. Id. Shifting the burden of explanation or shifting the burden of going forward with the case, does not shift the burden of proof. Plumb v. Richmond Light & R. Co., 233 NY 285 (1922).

The establishment of a prima facie case does not require the court to find that the parents are culpable; it merely establishes a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record. Matter of Philip M., supra, at 244. Once a prima facie case has been established, a respondent may simply rest without attempting to rebut the presumption and permit the court to decide the case on the strength of petitioner's evidence or, alternatively, they may present evidence which challenges the establishment of the prima facie case. Their evidence may, for example, (1) establish that during the time period when the child was injured, the child was not in the respondent's care (see, e.g., Matter of Vincent M., 193 AD2d 398, [1st Dept. 1993]); (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omissions of respondent (see, e.g., Matter of Lisa A. [Eunice O.], 57 Misc 3d 948 [ Bronx Co. Fam. Ct. 2017]); or (3) counter the evidence that the child had the condition which was the basis for the finding of injury (see, e.g., Matter of Smith., 128 AD2d 784 [2d Dept. 1987]). Self-serving or contradictory denials or unreasonable explanations are insufficient to rebut a prima facie abuse claim. In re Benjamin L., 9 AD3d 153 (1st Dept. 2004).

In the instant case, the Petitioner established a prima facie case of abuse through the credible expert and fact testimony of Dr. O'Hara, the credible testimony of CPS Auguet, and the medical records in evidence as Petitioner's Exhibits 1-3. There was no expert testimony given to rebut the expert testimony provided by the Petitioner's expert medical witness. Dr. O'Hara testified that in her expert medical opinion, Amar's diagnosis was medical abuse and that Amar had been given a toxic dose of acetaminophen by someone other than medical personnel and that the toxic dose of acetaminophen caused the Amar's acute liver failure.

Neither Respondent offered evidence that Amar's toxic acetaminophen levels and acute liver failure could reasonably have been caused accidentally without the facts or omissions of either Respondent. Neither Respondent offered evidence that Amar had an underlying condition that could explain Amar's toxic acetaminophen levels or acute liver failure. The Respondent Father did present evidence that established that during the time Amar presented with toxic acetaminophen levels and acute liver failure, his access to the child was significantly less than that of the Respondent Mother. Standing alone, this would not necessarily preclude a finding against the Respondent Father since the Respondent Father still had access to Amar during the relevant time.

Both Respondents testified on their own behalf and both Respondents denied medically abusing Amar. The Court does not credit the testimony of either Respondent and finds their [*6]denials self-serving. It is evident that in certain aspects, the Respondents were colluding to deceive the Court. For example, their testimony that they overheard hospital staff on multiple occasions suggest administering acetaminophen to Amar was vague and incredible. It is noteworthy that the Respondents could not identify any of the staff who allegedly suggested giving acetaminophen to Amar. The Court further finds that the Respondent Father's testimony was limited by his ability to recall or explain certain events related to Amar's medical history.

The Court notes that in contrasting the Respondent Father's testimony to that of the Respondent Mother, it is significant that the Respondent Mother was able to provide much greater detail, whether factual or not, regarding Amar's prior medical history, including specifying names and dates of medications and, procedures. This is particularly noteworthy given that the Respondents are charged with knowingly manipulating Amar's medical condition and treatment. The Court's impression of the Respondent Father is that he simply did not have a thorough understanding of Amar's specific medical history.

The Court finds that the Respondent Mother was wholly incredible and that her testimony contradicted the other credible evidence. Further, there is ample evidence in the record demonstrating that the Respondent Mother is a pathological liar. For example, Nurse Powell, an unbiased witness with no motive to lie, testified credibly that the Respondent Mother told her she had stage 3 lung cancer and was undergoing chemotherapy. Likewise, both CPS Auguet and Dr. O'Hara testified that the Respondent Mother identified herself to them as a nurse. The Respondent Mother's own testimony is that she does not have cancer. Further, the Respondent Mother admitted that she is not a nurse but rather, that she has an associate degree and is pursuing a degree in nursing.

The Court concludes that given the evidence presented regarding the hospital's procedure for administration of medication, it is implausible that the child Amar was given acetaminophen as part of his medical treatment at Columbia Presbyterian. Had acetaminophen been ordered for Amar, the order would not have been received by the pharmacy given that Amar's medical record indicated an allergy to acetaminophen.[FN16] Further, it is ludicrous to suggest, as counsel for the Respondent Mother does, that a member of the hospital staff intentionally or unintentionally gave Amar acetaminophen outside the normal hospital protocols, particularly in light of the fact that there are two instances, that occurred at two different hospitals, where Amar presented with unexplained toxic levels of acetaminophen.

The Petitioner Established that the Respondent Mother suffers from MSP

The Petitioner presented significant evidence regarding how the Respondent Mother fits the criteria for the prototypical profile of a perpetrator of MCA as applied to Amar: She is female; she is Amar's mother; she is married; and she reports obstetric complications with regard to Amar in that he was born with low birth weight at 32 weeks. Further, while the Respondent Mother only holds an associate degree and has not yet completed a nursing degree, she has identified herself as a nurse to multiple people, including Dr. O'Hara and CPS Auguet. This is particularly significant as it is consistent with the finding that nearly half the perpetrators of medical child abuse identify themselves as a healthcare professional, and it also indicative of the [*7]pathological lying common to perpetrators of medical child abuse. Similarly, the fact that the Respondent Mother told Ms. Powell that she had stage three lung cancer, when in fact the Respondent Mother's own testimony was that she does not have lung or any other cancer, is consistent with the 30.9% of medical child abuse perpetrators that suffer from FDIOS.

Acts of child abuse or neglect alleged to have resulted from a parent's MSP are unlikely, by their very nature, to be witnessed by a third party (see, e.g., Matter of Aaron S., 163 Misc 2d 967 [Suffolk Co. Fam. Ct. 1993]). Thus, in the absence of surreptitious videotaping, acts of child abuse or neglect alleged to have resulted from a parent or caretaker's MSP, require a res ipsa loquitur type of analysis pursuant to Family Court Act § 1046 (a)(ii) (see, e.g., I n re Patrick "GG" , 286 AD2d 540 [3d Dept. 2001]). In evaluating whether a child has been abused or neglected as a result of a parent's MSP, courts have examining the total picture presented to determine whether the parent fits the MSP diagnosis (see, e.g., Matter of Aaron S., supra). When factors typical of MSP are present, such as a child's prolonged illness which presented confusing symptoms defying diagnosis, a child's recurring hospitalizations, surgery and other invasive procedures, and a child's dramatic improvement after removal from the parent's access and care, courts have determined that the parent suffers from MSP (see, e.g., Matter of Jessica Z., 135 Misc 2d 520 [Westchester Co. Fam. Ct. 1987]).

It is significant to this Court that, Amar's condition improved while he was in the PICU at Columbia Presbyterian where, because of the physical layout and close monitoring by medical staff, it would have been nearly impossible for the Respondent Mother to manipulate Amar's medical condition or care. In contrast, once Amar was moved to the general pediatric unit, where patients are monitored less closely, there is evidence that his condition was manipulated by someone administering him a toxic dose of acetaminophen. Lastly, when one-on-one supervision was instituted after the Respondents were suspected of medical child abuse, it is noteworthy that there were no further suspected events of medical abuse.

The Petitioner's assertion that both Respondents are responsible for Amar's medical abuse is incongruent with the strong evidence the Petitioner presented regarding the Respondent Mother suffering from MSP. While the Petitioner clearly established a prima facie case that Amar was abused, that does not require the Court to find both, or either Respondent, culpable; it merely establishes a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record. Matter of Philip M., supra. The evidence demonstrated that the Respondent Father had much less access to Amar than the Respondent Mother did. During the time of Amar's hospitalization in February of 2017, the Respondent Father was working, sometimes double shifts, as a security guard at a different hospital. He was not with Amar on the day the child was admitted to the hospital and in fact, he could not even recall if he saw Amar that morning or if he had left for work prior to Amar waking up. Meanwhile, it is undisputed that the Respondent Mother was an almost constant presence at Amar's bedside during his hospitalization. Further, while the Respondent Father's belief in his wife's innocence can, in retrospect, appear misguided, there is nothing in the record to suggest that the Respondent Father acted unreasonably or imprudently with regard to Amar.

The Petitioner Established that Greysen and Prince Were Derivatively Abused

Family Court Act § 1046 (a)(i) states that evidence of the abuse or neglect of one child can be considered in determining whether other children in the household were abused or neglected. Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding may be made where the evidence as to the directly abused or neglected child [*8]demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care. (see, e.g., Matter of Vincent M., supra).

A finding of derivative abuse or neglect of one child based on the finding of abuse or neglect of a sibling may be proper where the offensive conduct proven as to one child was not remote in time (see, e.g., Matter of James P., 137 AD2d 461 [1st Dept. 1988]); where the conduct was serious or involved a course of abusive or neglectful behavior (see, e.g., Matter of Aaron S., supra); and where the conduct demonstrates a fundamental defect in respondent's understanding of the duties and obligations of parenthood (see, e.g., Matter of Christina Maria C., 89 AD2d 855 [2d Dept 1982]).

In deciding whether respondent's conduct demonstrates a fundamental defect in respondent's understanding of the duties and obligations of parenthood for the purpose of making a finding of derivative abuse or neglect of a sibling, the court need not exclude common sense and everyday experience from its deliberations. (see, e.g., Matter of T. C., 128 Misc 2d 156 [NY Co. Fam. Ct. 1985]).

There is little doubt here that Amar's abuse was a continuous course of conduct over a period of time from when he was six months old through the time the instant petitions were filed fifteen months later. The Respondent Mother's conduct put Amar at risk of death or serious injury on multiple occasions. Further, the Respondent Mother testified that Prince has a complicated medical history including having a seizure disorder, receiving services in school and having a home health aide for eight hours per day. Given how similarly situated Prince is to Amar, a derivative finding of abuse is particularly warranted.

The Court finds that the evidence of the Respondent Mother's abuse demonstrates that the Respondent Mother's parental judgment is so defective as to create a substantial risk of harm to any child in her care (see, e.g., Matter of Aaron S., 163 Misc 2d 967 [Suffolk Co. 1993]).

CONCLUSION

WHEREFORE, based upon the foregoing, the Court finds that the Petitioner has established, by a preponderance of the evidence, that the Respondent Mother abused the child Amar pursuant to Family Court Act § 1012. Further, the Court found that the Petitioner has established, by a preponderance of the evidence, that the children Greysen and Prince were derivatively abused as a result of the Respondent Mother's abuse of Amar. The Court further finds that the Petitioner failed to meet their burden in establishing, by a preponderance of the evidence, that the Respondent Father abused or neglected any of the children. Accordingly, the petitions against the Respondent Father are dismissed with prejudice.

Footnotes

Footnote 1:Acetaminophen and Tylenol are used synonymously throughout the record.

Footnote 2:During the pendency of the fact-finding hearing, the Petitioner filed a motion to exclude the Respondent Mother from the home. In their motion, the Petitioner alleged that the Respondent Mother had administered medication to Amar in contravention of the Court's order, causing Amar to be hospitalized with symptoms of vomiting, and that upon hospitalization, Amar was found to have elevated levels of sodium. The Respondent Mother waived holding an exclusion hearing and the Court entered an order a) excluding the Respondent Mother from the home, b) providing for a full stay-away temporary order of protection on behalf of the children against the Respondent Mother subject to supervised visitation and c) providing that the child Amar must be seen at Montefiore or Columbia Presbyterian for medical treatment going forward.

Footnote 3:The fact-finding hearing continued on November 29, 2017, November 30, 2017, December 8, 2017, January 3, 2018, February 6, 2018, February 16, 2018, February 28, 2018, March 6, 2018, March 12, 2018, March 22, 2018, April 23, 2018. Further, counsel submitted written summations in June of 2018.

Footnote 4:Nurse Powell testified as a rebuttal witness for the Petitioner.

Footnote 5:The Court qualified Dr. O'Hara as an expert in pediatrics and child abuse pediatrics over the objection of the Respondent Mother.

Footnote 6:Dr. O'Hara defined respiratory acidosis as a serious medical condition in which high levels of carbon dioxide in the blood cause the blood to become too acidic. Respiratory acidosis causes lethargy and breathing problems. If left untreated, respiratory acidosis can be life-threatening.

Footnote 7:The elevated levels were unexplained because it had been days since Amar had last been given acetaminophen at Montefiore Hospital. At the time, it was proposed that perhaps Amar had a genetic or metabolic condition that affected his ability to metabolize acetaminophen.

Footnote 8:Dr. O'Hara defined a g-tube, also known as a gastric tube, as a tube that connects to the stomach that is surgically inserted when a patient cannot meet their nutritional or caloric requirements by mouth.

Footnote 9:According to Dr. O'Hara, apnea is defined as an absence of breathing or respiratory effort. Obstructive apnea is defined as decreased ventilation due to a physical obstruction of the airway. Central apnea is a condition whereby the brain is disordered and does not respond to the normal physiological triggers fir involuntary respirations and breathing.

Footnote 10:Dr. O'Hara testified that an EEG involves placing electrodes on the scalp to monitor details of brain activity and brain waves to assess for seizure activity.

Footnote 11:Amar was ultimately discharged from Columbia Presbyterian Hospital on April 13, 2017.

Footnote 12:During a sleep study, there is close monitoring of a patient's breathing activity and physiological state, including monitoring of the respiratory rate, respiratory effort, movement of the chest wall, and heart rate. It can be determined if a patient stops breathing or if there is pauses in respiratory effort.

Footnote 13:Dr. O'Hara explained that liver failure is when the liver cells are injured or dying. If a liver fails irreversibly, there has to be transplantation of a new liver for a patient to continue to live.

Footnote 14:The medical records contain no reference to Tylenol ever being ordered or administered and, as Dr. O'Hara's testimony establishes, nobody makes oral orders for medication without written documentation anymore. There is an extensive procedure that needs to be followed to administer any medication at the hospital. Medication is first ordered electronically by a doctor. There are automatic alerts if there is a drug allergy to the ordered medication. If there is no allergy alert, the medication request is received by the pharmacy department. A pharmacist prepares the medication and associates it with a barcode. The medication is then delivered to the patient's unit. When the medication is administered, the barcode is scanned.

Footnote 15:Further, O'Hara testified that no medication mimics acetaminophen and that, while there are rare instances of a very high bilirubin level causing a false positive for acetaminophen, Amar's bilirubin levels, tested as part of the liver function test, were within the normal to low-normal range.

Footnote 16:Amar's allergy to acetaminophen is noted in the Columbia Presbyterian records in evidence. Further, Dr. O'Hara testified to the fact that Amar's allergy was known and the Respondents themselves testified to Amar wearing a band in the hospital that indicated his acetaminophen allergy.