Opinion
Na042616407
Decided September 8, 2008.
Attorneys on the case: Cynthia Lee, Esq. for Respondent, Island, NY 10314.
Joni Brandon, Law Guardian, Island, NY 10301.
Marc A. Berk, Island, NY 10310.
James O'Hare for Administration for Child Services 51 Stuyvesant Place, Island, NY 10301.
By Petition dated September 20, 2007, Petitioner, The Administration for Children's Services ("ACS"), commenced this child abuse case against Respondent Mother, Ana M. for injuries inflicted on the child Justice R. (DOB 7/13/05). ACS alleges that the child Justice sustained a spiral fracture to his right femur in November 2005 when his biological father, Mr. Raymond R., intentionally broke this then four month old child's leg. On or about July 2007, this same child sustained another spiral fracture to his left femur while in the care of Respondent Mother.
The instant Petition alleges that Respondent Mother's explanations as to how Justice was injured on each occasion were conflicting and inconsistent with the severity of the injuries presented. The Petition further alleges that all of the subject children are neglected as their physical, mental, or emotional conditions have been impaired or are in imminent danger of becoming impaired as a result of Respondent Mother's failure to exercise a minimum degree of care as a result of the acts committed by the Respondent Mother against Justice. ACS alleges that Justice's siblings, Jeremy S. (DOB 9/24/93), Kayla A. (DOB 8/27/98) and Kevin S. (DOB 5/28/96) are similarly in danger of neglect or abuse as a result of the acts committed by the Respondent Mother against Justice.
A fact-finding hearing was held on February 4, 2008, May 22, 2008, and June 4, 2008. ACS called three witnesses: 1. Ms. Jennifer A., ACS caseworker; 2. Respondent Mother and 3. Dr. W., an orthopaedic surgeon qualified as an expert in the field of orthopaedic surgery. ACS introduced the following documents into evidence: ORT dated July 27, 2007 (Petitioner's 1) and ORT dated September 17, 2007 (Petitioner's 2).
Before reaching the merits of this case, the Court notes that the parties disagree as to the burden of proof applicable to this case. The Petition in this case states in bold type on the right hand margin that "a finding that a child is abused as defined in Subdivision Eight of Section Three Eighty Four-B of the Social Services Law, by clear and convincing evidence, could constitute a basis to terminate parental rights in a proceeding pursuant to Section Three Hundred Eighty Four-B of the Social Services Law". Relying on this form language, Respondent Mother argues that the standard applicable to this abuse case is not a fair preponderance of evidence, but rather clear and convincing evidence. The Court agrees with ACS that the acts of abuse alleged against Respondent Mother must be proven by a fair preponderance of the evidence. See Matter of Tammie Z ., 66 NY2d 1 (1985). Clear and convincing evidence is necessary for a finding of severe and repeated abuse not sought by ACS here. See Matter of Baby Girl M ., 48 AD3d 569 ( 2nd Dept. 2008). The notice language on the face of the Petition does not change the substantive law applicable to this case.
For the reasons set forth below, the Petition is sustained and a finding of abuse is entered against Respondent Mother for the child Justice. A finding of derivative abuse is entered with respect to Justice's siblings Jeremy, Kayla and Kevin.
Factual Background
After observing the demeanor of the witnesses, the Court credits the testimony of Ms. A. and Dr. W. The Court does not credit the testimony of Respondent Mother. The following constitutes the findings of the Court after fact finding hearing:
In July 2005, when Justice was four months old, Justice's biological father, Mr. Raymond R., who was Respondent Mother's boyfriend at the time, allegedly caused a spiral fracture to Justice's right leg (the "First Fracture"). On February 3, 2006, an ACS case was indicated against Mr. Raymond R. for fractures and inadequate guardianship of Justice. The case was unfounded as against Respondent Mother allegedly because she was not present at the time of the incident. Respondent Mother believed that an abuse or neglect proceeding was filed against her in Family Court, but there is no record of any such proceedings. Respondent Mother believed that pursuant to Court Order, Mr. R. was ordered to have no unsupervised contact with Justice.
Some twenty-four months later, in July 2007, while in the care of Respondent Mother, Justice sustained another spiral fracture to his left leg (the "Second Fracture"). Respondent Mother took Justice to Lutheran Medical Center in Brooklyn where the fracture was treated. Justice was put in a body cast. The cast incorporated Justice's abdomen and pelvis and went below his knee on his left side. Respondent Mother was instructed to bring Justice for follow up care and removal of the cast at Lutheran Medical Center.
Respondent Mother then took Justice to the out patient clinic at Woodhull Hospital, to have the cast removed. At Woodhull Hospital, Justice was seen by Dr. W., an orthopaedic surgeon. Coincidentally, Dr. W. was the orthopaedic surgeon who treated Justice two years earlier in connection with the First Fracture. Dr. W. recalled that, at the time of the First Fracture, Respondent Mother offered conflicting and unpersuasive explanations as to how that injury was sustained. Dr. W. was similarly suspicious when Respondent Mother claimed that Justice sustained the Second Fracture on a park slide in Brooklyn. He instructed the staff to call in an ORT report to the State Central Registry of Child Abuse and Neglect (Pet. 2).
At the trial on the instant Petition, Respondent Mother testified that she lied to Dr. W. and the authorities in 2005 when she said the First Fracture was caused when Justice fell out of his stroller or, as she later stated, when Justice fell out of Mr. R.'s arms. Respondent Mother now admits that she knew the First Fracture was intentionally inflicted by Mr. R. She admits she concocted the false explanations to protect her then boyfriend.
With respect to the Second Fracture in 2007, Respondent Mother admits she lied again as to what happened to Justice. When first questioned about the Second Fracture, Respondent Mother told the investigating ACS worker that Justice was injured on a park slide in Brooklyn. At trial, Respondent Mother recanted that story and blamed Mr. R. for these injuries. She claims that Mr. R., who she says she has had no contact with, broke into her home and attacked her and Justice. Specifically, she claims that Mr. R. beat her up, forced his way to Justice, locked himself in the bedroom with Justice and proceeded to break this child's left leg. After the alleged attack was over and Mr. R. left the home, Respondent Mother did not call the police or seek any form of medical assistance for herself or Justice. Rather, she sent Justice's siblings to the store to buy milk. She admits telling her children to lie to authorities and to state that Justice was injured in the park. She offered no explanation as to why she did not return to Lutheran Medical Center to have Justice's body cast removed although instructed to do so.
Dr. W. testified that, notwithstanding eighteen years as an orthopaedic surgeon and his treatment of 400 to 500 pediatric patients, he has never seen another case where a child less than three years old presented with two distinct spiral fractures involving different limbs some two years apart.
The Applicable Law
Family Court Act Section 1046(a)(ii) provides that a prima facie case of abuse or neglect is established by "proof of injuries sustained by 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." Although the ultimate burden of proof of establishing by a preponderance of the evidence that the respondents abused or neglected the subject child remains upon petitioner, once a prima facie case is established, the burden of coming forward shifts to the parents, to offer a satisfactory explanation for the injuries. Matter of New York City Department of Social Services v. Carmen J. , 209 AD2d 525 (2nd Dept. 1994). The respondents may attempt to rebut the presumption by arguing that (1) during the time period the child was injured the child was not in respondent's care; (2) the injury or condition could reasonably have occurred accidentally; or (3) the child had a condition which was the basis for the injury. See Matter of Phillip M ., 82 NY2d 238, 245 (1993).
The Court finds that ACS has proven, by a fair preponderance of the evidence, that the spiral fracture of the subject child's left femur, while in the care of Respondent Mother, is of such a nature as would ordinarily not be sustained except by reason of the acts or omissions of the parent. See In Re F. Children , 271 AD2d 249 (1st Dept. 2000). The Court further finds that Respondent Mother's failure to offer a satisfactory explanation for the Second Fracture and her varying (and not believable) stories as to how Justice sustained these very serious injuries supports a finding of abuse. Matter of New York City Department of Social Services v. Carmen J. , 209 AD2d 525 (2nd Dept. 1994). This finding is further supported by Dr. W.'s testimony that, in his expert opinion, Justice's injuries were inconsistent with all of Respondent Mother's varying accounts as to how the Second Injury was sustained. See Matter of Brittany C ., 242 AD2d 533 (2nd Dept. 1997).
The Court enters a finding of derivative abuse against Respondent Mother for the children Kevin, Kayla, and Jeremy. The testimony and the medical evidence as to the two separate spiral fractures Justice sustained while under the age of three, and Respondent Mother's varying inconsistent explanations supports a finding that the remaining children are similarly at risk of abuse. See In Re F. Children , 271 AD2d 249 (1st Dept. 2000).