Matter of Nathan G.-C.
Annotate this CaseDecided on October 30, 2019
Family Court, Bronx County
In the Matter of Nathan G.-C. A Child Under the Age of Eighteen Years Alleged to be Abused by JANEIRY C. CESAR G., Respondents.
NA-31336/19
Richard Camilleri, Esq., for the petitioner
Leila Tabbaa, Esq., assigned counsel for respondent mother
Annie Carney, Esq., assigned counsel for respondent mother
Beatrice Mayol, Esq., assigned counsel for respondent father Cesar G.
Jamara Clark, Esq., attorney for the child Nathan G-C.
Gilbert A. Taylor, J.
Procedural History/Factual Findings:
On October 9, 2019, the Commissioner of the Administration for Children's Services (hereinafter, "ACS") filed a petition alleging that the respondent mother Ms. Janeiry C. [*2](hereinafter, "Ms. C" or "Respondent Mother") and the respondent father Mr. Cesar G. (hereinafter, "Mr. G" or "Respondent Father") abused the subject child Nathan G.-C. (D.O.B. XX/XX/2019) in that:
On or about September 27, 2019, according to Dr. Alexxis Lawson of St. Barnabas Hospital,
The subject child NATHAN (age 7 months) sustained a leg fracture and the explanation provided by the Respondent Mother and Respondent Father is not consistent with the injury sustained by the subject child. On or about September 27, 2019 Dr. Lyubov Nisenbaum, stated to the CPS that the subject child NATHAN sustained a nondisplaced acute fracture of the anterior distal tibial metaphysis, most compatible with a metaphyseal corner fracture to his right foot. According to Dr. Nisenbaum, the child NATHAN sustained a serious fracture and that the fracture is not consistent with the explanations provided by either respondent. According to Dr. Nisenbaum, this injury is consistent with a NON-accidental trauma and the child required further examination at the Children's Hospital at Montefiore.
On or about October 3, 2019, Dr. Jamie Hoffman-Rosenfeld, Child Abuse Specialist at the Montefiore Hospital Bronx Child Advocacy Center stated to the CPS that she consulted with the Pediatric Orthopedic Surgeon Dr. Sharkey regarding the injuries and stated that metaphysical fracture is considered very specific for child abuse and is a "red flag"!! Dr. Hoffman-Rosenfeld stated the mechanisms required to produce this fracture are not typically seen in accidental injuries and that any limb fracture in a non-ambulatory infant is very concerning. According to Dr. Hoffman-Rosenfeld the subject child's injuries are not consistent with the story reported by the Respondents and do not explain the ankle fracture. Dr. Hoffman-Rosenfeld also stated that any child with this type of fracture would be crying and in pain and noted the injury was in the healing phases.
On or about September 27, 2019, the Respondent Mother stated to ACS CPS, that on or about September 25, 2019, she arrived at the maternal great-grandmothers home to pick up the subject child NATHAN at about 8:00 p.m. where she met the child NATHAN, Respondent Father, and maternal great-grandmother and that the child appeared fine. According to the Respondent Mother, they arrived home at approximately 10:00 p.m. and later observed NATHAN in the crib to be excited, bouncing in the crib, with his hands in the air reaching for her, then observed the child to fall forward hitting his face on the crib. According to the Respondent Mother, the child began to cry hysterically, and it took her a long time to console him. According to the Respondent Mother, the following morning at around 11:00am she picked up NATHAN from the crib and he was crying a different type of cry and she knew that something was wrong. According to the Respondent Mother, he was crying throughout the day and realized when she touched his right leg he would cry hysterically. According to the mother, she took the child to St. Barnabas Hospital after 9:00pm. The Respondent Mother also stated that she and the child NATHAN recently moved into the home of the Respondent Father two weeks ago.
On or about September 27, 2019, the Respondent Father stated to CPS that he was in the hospital because something was wrong with NATHAN's ankle and he did not know what was [*3]wrong.
Based on the above allegations, the subject child is an abused and neglected child as defined in Article 10 of the Family Court Act.
On October 9, 2019, the matter was first before the Court. Both the Respondent Mother and the Respondent Father appeared in Court on this date for arraignment, were each assigned counsel and issues were joined. At this initial appearance, ACS informed the Court that an emergency removal of the subject child Nathan had been conducted the previous day, and an application for a remand of the child was made. Both Ms. C and Mr. G opposed the removal and ACS requested a hearing pursuant to Family Court Act Section 1027. The 1027 hearing commenced on this date with ACS calling the filing Child Protective Specialist Ms. H (hereinafter, "CPS") as its first witness. The direct examination of the CPS was not completed on this date, and the matter was adjourned to October 10, 2019. At the conclusion of this appearance, the Court indicated that it was not issuing any orders regarding the status of the child Nathan given the lack of sufficient information.
On October 10, 2019, the 1027 hearing resumed with ACS entering into evidence as Petitioner's Exhibit 1, St. Barnabas Hospital (hereinafter, "St. Barnabas") medical records for the child Nathan and as Petitioner's Exhibit 2, a New York State Central Register Oral Report Transmittal, dated September 27, 2019, the source of whom was Dr. Alexxis Lawson from St. Barnabas. The Respondent Mother also entered into evidence as Respondent Mother's Exhibit A, St. Barnabas medical records for Nathan containing a discharge summary. While no testimony was taken this day, there was colloquy amongst the Court and all counsel about the difference of medical opinions contained within the medical records submitted and what informed ACS' decision to wait 11 days after the fracture was diagnosed to conduct an emergency removal of the child Nathan. Thus, in order to clarify many of the Court's inquiries, the Court ordered the ACS Child Protective Manager Ms. D (hereinafter, "Child Protective Manager") to appear in court the following day, either in person or via telephone. Additionally, ACS was ordered to turn over all outstanding updated discovery, including handwritten investigation notes, and ordered to turn over an expert disclosure for Dr. Hoffman-Rosenfeld pursuant to CPLR §3101(d) and to submit any so ordered subpoenas for medical records forthwith. The matter was adjourned to October 11, 2019.
At the continued 1027 hearing on October 11, 2019, the direct examination of the CPS was completed. The CPS's testimony was interrupted to take pertinent testimony of the Child Protective Manager and the Child Protective Specialist Supervisor II Mr. L (hereinafter "CPS Supervisor II "), over the telephone. At the conclusion of their testimony, ACS entered into evidence as Petitioner's Exhibit 3, Addendum I of the Article 10 petition which contained the allegations. The Court continued no status for the child Nathan and the matter was adjourned to October 15, 2019 for the cross-examination of the CPS.
On October 15, 2019, the matter was scheduled for continuation of the 1027 hearing. However, no testimony was taken because Dr. Jamie Hoffman-Rosenfeld (hereinafter, "Dr. Hoffman-Rosenfeld"), ACS' next anticipated witness, did not appear in court despite indicating [*4]that she would be available to testify. ACS informed the Court that Dr. Hoffman-Rosenfeld wanted to review the skeletal survey completed at St. Barnabas prior to commencing her testimony, but that the disc containing the skeletal survey had not yet been provided to her, and she therefore was not prepared to testify. While no testimony was heard, the Respondent Mother entered into evidence a set of St. Barnabas medical records as Respondent Mother's Exhibit B that were more comprehensive than the set entered as Respondent Mother's Exhibit A, and the matter was adjourned to October 16, 2019.
On October 16, 2019, at the continued 1027 hearing, ACS called Dr. Jamie Hoffman-Rosenfeld to testify as its next witness. All counsel stipulated to the testimony of Dr. Hoffman-Rosenfeld being taken as that of an expert in child abuse pediatrics, and the direct examination commenced after ACS entered into evidence Petitioner's Exhibits 4 through 7. Before the matter was adjourned, the covering Child Protective Specialist Ms. T (hereinafter, "Covering CPS") informed the Court that she visited the home of the maternal grandmother on October 15, 2019. Given that was the first day she became involved on the case, she was unsure if any other ACS employee had visited the home between October 8, 2019 and October 15, 2019. The matter was adjourned to October 17, 2019 for continuation of the 1027 hearing.
On October 17, 2019, the matter was scheduled for the continuation of the 1027 hearing. However, no testimony was taken given that Dr. Hoffman-Rosenfeld was not available this date. As a follow up to the objections of the Respondent Father's counsel, counsel for ACS submitted an affirmation outlining the reasons and its offer of proof for its intent to call Mr. G as a witness to testify at this 1027 hearing. The Attorney for the Child was in support of Mr. G being called to testify, but counsel for Mr. G remained opposed. Over the objection of the Respondent Father's attorney, the Court directed that if called, Mr. G was to testify. Before the matter was adjourned to October 18, 2019, the Respondent Mother entered into evidence as Respondent Mother's Exhibit C, a disc containing the skeletal survey taken of Nathan at St. Barnabas on September 27, 2019. On consent of all counsel, the matter was adjourned to October 18, 2019, on which date, the direct testimony of Dr. Hoffman-Rosenfeld was completed. The matter was adjourned to October 21, 2019.
On October 21, 2019, the 1027 hearing continued. All counsel, with the exception of the Attorney for the Child, conducted and completed cross-examination of Dr. Hoffman-Rosenfeld. Accordingly, the matter was adjourned to the following day for the Respondent Father to be called as a witness and to October 23, 2019 for the cross-examination of Dr. Hoffman-Rosenfeld to be completed by the Attorney for the Child.
On October 22, 2019, the 1027 continued with the brief testimony of the Covering CPS.[FN1] Before the matter was adjourned, the Court ordered ACS to prepare and submit a written report describing the nature of the casework that had been conducted for the family on each day that the 1027 hearing had occurred. ACS was also ordered to visit the home of the maternal [*5]grandmother, the home in which it had placed the child after conducting its emergency removal, every calendar day pending the outcome of the 1027 hearing. Further, ACS was ordered, absent any exigent and emergency circumstances, not to move Nathan from his grandmother's home, and the matter was adjourned to October 23, 2019.
On October 23, 2019, the cross-examination of Dr. Hoffman-Rosenfeld by the Attorney for the Child was continued, and the doctor's testimony was completed. At the conclusion of Dr. Hoffman-Rosenfeld's testimony, over the objection of the Respondent Mother, an ACS court report dated October 23, 2019 was entered into evidence as Petitioner's Exhibit 8. The Respondent Mother testified that a statement in the report was untrue, attesting that she never informed the case worker that Nathan required occupational therapy as a result of his leg injury. Additionally, on this date, ACS informed the Court that the assigned CPS was experiencing complications from her dental procedure and would not be able to physically appear in court for her cross-examination to be completed. In order to efficiently use the hearing time, all counsel consented to ACS substituting the continued testimony and cross-examination of the CPS with the testimony of her supervisor, CPS Supervisor II. Before the matter was adjourned, an affirmation from Dr. Christopher Sullivan (hereinafter, "Dr. Sullivan"), associate professor of orthopedic surgery at University of Chicago and a curriculum vitae was entered into evidence as Respondent Mother's Exhibit D. Counsel for the Respondent Mother stated that, in accordance with CPLR §2106, the affirmation was being submitting in lieu of testimony of Dr. Sullivan. Counsel for ACS objected to the entry of the affirmation in the absence of Dr. Sullivan being subject to cross-examination. Thus, the matter was adjourned for further testimony, including that of Dr. Sullivan for purposes of cross-examination.
On October 24, 2019, the matter was scheduled for the continuing 1027 hearing. As had been previously agreed to, counsel cross examined the CPS Supervisor II, in lieu of the CPS, who was still out on medical leave.
At the continuing 1027 hearing on October 25, 2019, the Respondent Mother called Dr. Sullivan as its witness. Dr. Sullivan, who testified over the telephone, was made available for the limited purpose of cross-examination given that his affirmation served as his direct testimony. All counsel completed cross-examination on this date, and the Respondent Mother rested.
On October 28, 2019, ACS entered into evidence two scientific articles into evidence as Petitioner's Exhibits 10 and 11 and rested. The Attorney for the Child called Mr. G as a witness to testify. All sides rested at the 1027 hearing, and counsel for ACS gave a summation. The matter was adjourned to October 29, 2019, on which date all other counsel completed their closing arguments.
The matter is currently adjourned to October 30, 2019 for decision on the 1027 hearing.
Documentary and Testimonial Evidence:
The following documents were received into evidence at this 1028 Hearing: Petitioner's Exhibit 1: St. Barnabas Hospital medical records;Petitioner's Exhibit 2: ORT, dated September 27, 2019;Petitioner's Exhibit 3: Addendum No.1 of Article 10 Petition containing the allegations;Petitioner's Exhibit 4: ACS Investigation Progress Notes;Petitioner's Exhibit 5: ACS Court Report, dated October 15, 2019;Petitioner's Exhibit 6: Curriculum Vitae of Dr. Jamie Hoffman-Rosenfeld;Petitioner's Exhibit 7: PowerPoint of x-ray images from Children's Hospital at Montefiore;Petitioner's Exhibit 8: ACS Court Report, dated October 23, 2019;Petitioner's Exhibit 9: ACS Court Report, dated October 24, 2019;Petitioner's Exhibit 10: Article by Paul Kleinman and Sandy C. Marks, "A Regional Approach to Classic Metaphyseal Lesions in Abused Infants: The Distal Tibia";Petitioner's Exhibit 11: Article by Paul Kleinman, et. al., "Prevalence of the Classic Metaphyseal Lesion in Infants at Low Versus High Risk for Abuse";Respondent Mother's Exhibit A: St. Barnabas Hospital medical records;[FN2] Respondent Mother's Exhibit B: St. Barnabas Hospital medical records [FN3] Respondent Mother's Exhibit " target="_blank">Nicholson v. Scoppetta, 3 NY3d 357 [2004]). Additionally, if the Court determines the existence of imminent risk, the court is then required to determine whether the risk of harm to the child of remaining in the home outweighs the harm that might result from removal and which course is in the child's best interest. Id. at 378. Finally, the statute further requires that upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. In addition, the court must consider whether the risk can be eliminated or mitigated by reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family. Id. at 378—379; Matter of Naomi R., 296 AD2d 503 2d Dept. 2002)
This case is one in which there are varied and competing medical opinions regarding the manner in which Nathan sustained a fractured tibia. Throughout the course of this hearing, counsel presented a plethora of evidence to persuade this Court to view Nathan's injury to have been caused by either accidental or non-accidental means. However, as the Court has repeatedly stated throughout the course of this hearing, that is not the primary issue that the Court is [*14]charged with determining at this juncture. Rather, the precise question presented at this 1027 hearing is whether the child Nathan would be at imminent risk of harm should he be returned to the care of his parents pending a fact-finding hearing.
The evidence adduced at this 1027 hearing establishes that on the evening of September 26, 2019, the Respondent Mother and Respondent Father brought the child Nathan to St. Barnabas due to concerns that he was exhibiting signs of pain in his right lower leg. Upon arrival to the hospital, the parents, primarily Ms. C, described to the hospital staff the events that preceded the hospital visit, proffering a history that could possibly uncover an explanation for her son's pain. Nathan was kept overnight at the hospital and by the morning of September 27, 2019, he was diagnosed with having a non-displaced, acute fracture of the anterior distal tibial metaphysis, most compatible with a metaphyseal corner fracture.
Other than evidence of the fracture, the medical records in evidence establish that Nathan sustained no other injuries. There was "no evidence of acute or chronic fractures" anywhere else in his body, head, pelvis, upper extremities or left lower extremities. Additionally, the skeletal survey conducted at St. Barnabas further yielded unremarkable results, confirming that there were no other healing fractures in the child. While the records noted that this specific type of fracture can be seen in the setting of non-accidental trauma, they simultaneously noted that it can be seen in the setting of an accidental trauma. Finally, the ACS progress notes indicate that the attending physician informed the CPS that injury could have been accidental as well as non-accidental and that Ms. C's explanation had remained consistent and could be a possible cause for the injury. Upon the discovery of the fracture and prior to Nathan's discharge home, ACS was alerted, and an investigation commenced immediately in the early morning hours of September 27, 2019.
What remains undisputed is that despite the start of the resulting ACS investigation, Nathan was discharged home from St. Barnabas to the care of the respondents on September 27, 2019. It is significantly noteworthy to this Court that Nathan was taken to the hospital by his parents, treated and permitted to go home with his parents the very next day, despite the fact that a report was made to the State Central Register with concerns that the child's fracture might have been caused by non-accidental means. Between the time in which Nathan was discharged on September 27, 2019 through the date in which an emergency removal was conducted on October 8, 2019, the record establishes that Nathan was safely in the care of his parents all while being supervised by ACS. The record further establishes that for those 11 days, both Ms. C and Mr. G did everything they were asked to do, including, but not limited to complying with ACS supervision and taking Nathan for follow-up medical appointments at Montefiore on October 3, 2019 and October 8, 2019, respectively, with Dr. Sharkey, the pediatric orthopedist, and Dr. Hoffman-Rosenfeld, the child abuse pediatrician. As it pertains to imminent risk, ACS has failed to present any new information to this Court other than establishing that the parents fully complied with supervision, acted appropriately with the child and did everything that was asked of them.
It is also of great significance to this Court that on October 4, 2019, just one day after Nathan was seen by Dr. Sharkey, ACS completed a 7-day safety assessment and determined that [*15]Nathan was safe in the care of his parents as long as a safety plan remained in effect. The child continued to safely remain in the care of his parents for another 4 days, and it was not until October 8, 2019 when Dr. Hoffman-Rosenfeld informed ACS that the child's injury was consistent with abuse and not adequately explained by the parents that ACS decided to remove him. In the Court's view, there was nothing glaringly new about this information—St. Barnabas had already called in a report to the State Central Register, and on October 3, 2019, Dr. Sharkey also opined that the fracture was highly indicative of abuse. Nonetheless, Nathan remained in the care of the Respondent Mother and Respondent Father. Despite inquiring multiple times, it behooves this Court what new information presented itself that led ACS to deem it an emergency to remove Nathan from the care of his parents.
Altogether, this Court finds that ACS has failed to present evidence sufficient to show that if specific orders are implemented, the child would be at imminent risk at this time if returned to Ms. C and Mr. G. Furthermore, in balancing the risk of imminent harm against the harm that removal might bring, the Court is further compelled that continued removal is not necessary or in the best interests of the child Nathan. While the child was placed with his maternal grandmother upon his removal, he has nonetheless experienced trauma that is evidenced by his bouts of crying while waking up nightly, which his mother described as abnormal for him. The fact that Ms. C has had to sleep over at her grandmother's home to assist in soothing Nathan at night is only further proof of the harm this child has suffered as a result of being removed from his parent's care. In reaching its decision, the Court has carefully weighed all documentary and testimonial evidence before it. The Court has also considered the arguments made by all counsel and the concerns expressed by the Attorney for the Child and counsel for ACS.
Ultimately, ACS has failed to set forth any risk factors that would render it unsafe for Nathan to be returned to the care of his parents. Neither the Respondent Mother nor the Respondent Father have any prior child welfare involvement, criminal history or a history of domestic violence or substance abuse. During the October 6, 2019 visit to the case address, ACS deemed the home to be safe and suitable for the child. Furthermore, no information was brought to this Court's attention that would raise concerns about the manner in which the parents interact with and care for Nathan. Last but not least, the record is void of any evidence that leads it to believe that either parent would not abide by its orders if Nathan were to be returned to their care. Overall, the totality of the evidence presented at this hearing leads the Court to conclude that the child Nathan would not be at imminent risk of harm should he be returned to the Respondent Mother and Respondent Father at this time. In balancing the risks against the harms of removal, the Court finds that with a number of measures and services in place, any harm or imminent risk of harm that arose from the nature of events that led to the prolonged separation of Nathan from his parents can be reasonably mitigated (Naomi R., supra).
For all the aforementioned reasons, the record as a whole, leads this Court to find that the continued removal of the child Nathan is unnecessary to avoid imminent risk to his life or health.
ORDERED, that the subject child Nathan is temporarily released to the custody of the [*16]Respondent Mother and the Respondent Father, pursuant to FCA §1027, pending a final order of disposition or further order of the court, under the supervision of ACS and upon the following terms and conditions:
The Respondents shall cooperate with ACS supervision over their household, including allowing ACS access to complete announced and unannounced visits to the home;The Respondents shall accept reasonable referrals from ACS given to them in writing and copied to all counsel.The Respondents are to ensure that Nathan is brought to any and all medical appointments and that they comply with follow up recommendations; The Respondents are ordered to accept a referral for home dyadic therapy;The Respondents are ordered to accept a referral for Intensive Preventive Services.The Respondents are ordered to accept a referral for the ACS Family Preservation Program (FPP) services until Intensive Preventive Services are in place;The Respondents shall sign releases for ACS to monitor their progress in services;The Respondents shall not leave the child alone without appropriate adult supervision being in place at all times;ACS is ordered to make a referral for dyadic therapy forthwith;ACS is ordered to make a referral for intensive preventive services within (5) days from the date of this decision.ACS is ordered to make a referral to FPP within five (5) days from the date of this decision; andACS is ordered to visit the case address every calendar day until FPP services are in place.WHEREFORE based on the foregoing, the application for removal of the child made by ACS pursuant to FCA §1027 is denied. Notify parties.
Dated: October 30, 2019 Bronx, New York
ENTER:
___________________________
Hon. Gilbert A. Taylor, J.F.C. Footnotes
Footnote 1:Neither Ms. C nor Mr. G appeared this day. Their attorneys informed the Court that they remained at home to care for the child Nathan as there was no childcare resources available on this date.
Footnote 2: This set of the St. Barnabas records are essentially identical to the medical records in evidence as Petitioner's Exhibit 1.
Footnote 3:This set of the St. Barnabas records are more comprehensive than Respondent Mother's Exhibit A and Petitioner's Exhibit 1.
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