Opinion
NA-10798-01/20
06-17-2021
In the MATTER OF A.S.C., L.S.C., D.S.C., A.H., Children Alleged to be Abused and/or Neglected by T.S., K.C., G.S., T.S-H., L.S., Respondents.
Attorney for Petitioner-Administration for Children's Services, Family Court Legal Services-Bronx, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451, By: Jennifer Howell, Esq. and Noah Powlen, Esq. Attorney for Respondent Father/PLR, K.C., The Bronx Defenders, Family Defense Practice, 360 East 161st Street, Bronx, NY 10451, By: Jonathan Howe, Esq., Mara Fleder, Esq., and Jessica Horan-Block, Esq. Attorney for Respondent Mother/PLR, T.S., Law Office of Aleza Ross, 31 Oak Street, Suite 26, Patchogue, NY 11772, By: Aleza Ross, Esq. Attorney for Respondent Mother/PLR, T.S-H. Eskin & Eskin Law, P.C., 903F Sheridan Avenue, Bronx, NY 10451, By: David J. Eskin, Esq. Attorney for Subject Children, L.S.C.; A.S.C.; D.S.C. and A.H., Legal Aid Society, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451, By: Grace Oboma-Layat, Esq.
Attorney for Petitioner-Administration for Children's Services, Family Court Legal Services-Bronx, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451, By: Jennifer Howell, Esq. and Noah Powlen, Esq.
Attorney for Respondent Father/PLR, K.C., The Bronx Defenders, Family Defense Practice, 360 East 161st Street, Bronx, NY 10451, By: Jonathan Howe, Esq., Mara Fleder, Esq., and Jessica Horan-Block, Esq.
Attorney for Respondent Mother/PLR, T.S., Law Office of Aleza Ross, 31 Oak Street, Suite 26, Patchogue, NY 11772, By: Aleza Ross, Esq.
Attorney for Respondent Mother/PLR, T.S-H. Eskin & Eskin Law, P.C., 903F Sheridan Avenue, Bronx, NY 10451, By: David J. Eskin, Esq.
Attorney for Subject Children, L.S.C.; A.S.C.; D.S.C. and A.H., Legal Aid Society, 900 Sheridan Avenue, 6th Floor, Bronx, NY 10451, By: Grace Oboma-Layat, Esq.
Ronna H. Gordon-Galchus, J.
The fatality of a baby caused by an opiate of massive strength is the tragic issue surrounding this matter.
On November 7, 2020 the New York City Administration for Children's Services (ACS) commenced this abuse proceeding by filing a petition against Respondent Mother T.S. (mother to L.S.C., D.S.C., and A.S.C., and alleged PLR to A.H.), Respondent Father K.C. (father to L.S.C., D.S.C., and A.S.C., and alleged PLR to A.H.), Respondent Mother T.S-H. (mother to A.H. and alleged PLR to L.S.C., D.S.C., and A.S.C.), respondent L.S. (maternal grandfather and alleged PLR to all children) and G.S. (maternal uncle and alleged PLR to all children). The petition alleges that all respondents reside together in the children's home and that all have performed caretaking duties for all the children, including D.S.C., prior to his death. The petition further alleges that the child D.S.C. was pronounced dead on February 14, 2020 and that on about November 6, 2020, D.S.C.’s death was classified as a homicide due to an overdose of Fentanyl.
The children were remanded to the Commissioner of ACS and are currently placed in the home of relatives. A protracted 1027 hearing was held between November 2020 and June 2021. The hearing pertained to respondent mother T.S., respondent father K.C., and respondent mother T.S-H., as the other respondents did not have standing to participate in the hearing. An imminent risk assessment (IR) was also conducted for respondents and was submitted into evidence as Court Exhibits 1-3. The imminent risk assessment for respondent mother T.S-H. is Court Exhibit 1, the imminent risk assessment for respondent mother T.S. is Court Exhibit 2, and the imminent risk assessment for respondent father K.C. is Court Exhibit 3.
Petitioner submitted the following documentary evidence:
Petitioner 1 — Progress Notes for November 2020
Petitioner 2 - Petition
Petitioner 3 — November 2020 ORT called in Dr. B.C.
Petitioner 4 - Curriculum Vitae (CV) of Dr. B.C.
Petitioner 5 — Office of the Chief Medical Examiner Autopsy report (8 pages) and Death Certificate of D.S.C.
Petitioner 6 - Records from Office of the Chief Medical Examiner
Petitioner 7 - Medical records of D.S.C. from Montefiore Medical Center
Respondent T.S-H. submitted the following documentary evidence:
Exhibit A — Time Sheet indicating her work hours on February 14, 2020
Exhibit B — Walgreens Pharmacy Records- medication prescriptions from her now deceased husband
Exhibit C —NYC Ferry Marine Operations Schedule
Respondent T.S. submitted the following documentary evidence:
Exhibits A and B- two letters from her employer, "Rock the Boat."
Respondent K.C. submitted the following documentary evidence:
Exhibit A — Curriculum Vitae (CV) of Dr. D.T.
Exhibit B- FSS Notes from February 2020
Exhibit C- INV Notes from February 2020 (Unfounded Investigation)
T.S-H. testified on her own behalf and answered questions posed to her during her imminent risk (IR) assessment. Respondents T.S. and K.C. did not testify and would not answer questions during their IR assessment regarding the incident and the three days which lead up to the incident.
The petitioner called Child Protective Specialist A.G. This Court credits CPS A.G.’s testimony. CPS A.G. testified that she received this case as an ACS removal on November 9, 2020. The case was received by ACS on November 6, 2020 because the medical examiner ruled that D.S.C.’s death, which occurred on February 14, 2020, was now ruled a homicide due to the presence of Fentanyl in the child's system. CPS A.G. spoke with the medical examiner, Dr. B.C., on November 10, 2020. He told her that Fentanyl was found in D.S.C. toxicology. The initial ruling of the child's death had been pneumonia since D.S.C. had tested positive for pneumonia A. Dr. B.C. explained that the ruling on D.S.C.’s death was changed because of the presence of Fentanyl in the child. Dr. B.C. told her that Fentanyl could not be found in an over-the-counter drug. Dr. B.C. informed CPS A.G. that he received the toxicology tests on September 11, 2020 and CPS A.G. testified that ACS was made aware of the results on November 6, 2020. Dr. B.C. informed CPS A.G. that toxicology tests take several months, the current pandemic caused further delays, and that there was a delay in reporting the results because he had to reach out to other providers regarding the medication D.S.C. was given while in the care of EMS and Montefiore Hospital. Dr. B.C. informed her that a sample was taken from D.S.C.’s femoral bone. CPS A.G. testified that rigor mortis set in D.S.C.’s jaw prior to the time he was observed at the hospital. Dr. B.C. informed CPS A.G. that D.S.C. was administered only saline and oxygen. CPS A.G. testified that the original removal investigation concerning the death of D.S.C. ended April 14, 2020 and that the emergency removal of the children did not occur until November 7, 2020, when ACS was made aware of the positive toxicology result. The family was not previously known to ACS. CPS A.G. spoke with respondent father K.C. once, about three times to respondent mother T.S., and more than three times to respondent mother T.S-H. CPS A.G. testified that the respondent's home was searched by the police in February 2020. She visited the home in November 2020 and did not find any indicia of drugs. She described the home as being cluttered. The children had remained in the respondents’ home from February 2020 through November 2020. CPS A.G. testified that respondent mother T.S-H. informed her that she arrived at work at about 2:00 p.m. on the day of D.S.C.’s passing. She told CPS that it took her longer than usual to get to work that day.
Petitioner called Dr. B.C. He was declared an expert in the field of medicine and the subfield of forensic pathology. This Court completely credits his testimony. Dr. B.C. testified he is a medical examiner for the City of New York and he is employed to conduct autopsies on individuals under certain circumstances. He had been involved in six autopsies concerning pediatrics and approximately 240 involving adults. Of the 240 involving adults, 53 were certified as acute intoxication. Dr. B.C. became acquainted with the instant case on February 15, 2020 when he reviewed the investigation documents from the medical legal investigator and the medical records. He testified that after reviewing the documents, he performed the autopsy. He testified that an external observation was followed by an internal examination. The medical examiner's office received D.S.C.’s body from Montefiore Hospital. Dr. B.C. noted D.S.C. had multiple IV lines and an intrathecal catheter in his leg which had been applied by EMS personnel and by medical personnel in the emergency department. Dr. B.C. testified that after the initial autopsy examination, the cause of death was certified as pending further studies since multiple samples of blood and other organs were taken for toxicology and microbiology testing. Following positive results for viral swabs, the manner of death was deemed natural from Influenza A in May 2020. The toxicology testing was performed at the in-house lab in New York, the viral samples and bacterial samples were sent to the Department of Health, and the sections for microscopic examination were prepared at the histology lab and sent back to him for microscopic review. However, Dr. B.C. testified that after reviewing the toxicology and lab results, he certified the cause of death as acute Fentanyl intoxication and issued an amended autopsy report on November 6, 2020. Dr. B.C. testified that blood samples were taken from three locations, and all samples tested positive for Fentanyl. The blood samples were taken from D.S.C.’s femoral artery, heart, and (two samples) chest cavity. The samples were sent to the lab and he received the toxicology report on September 11, 2020. He testified that in August "Mr. F." from the toxicology laboratory contacted him to report that the results tested positive for Fentanyl. Mr. F. asked him if the medical records indicated the presence of Fentanyl and Dr. B.C. informed F. that they did not. Dr. B.C. testified "that they were going to rerun the samples and that the results (were) documented on the September 11th toxicology sheets." Dr. B.C. testified that Fentanyl is a synthetic opioid often used for pain management and is 50 to 100 times stronger than morphine. He testified that Fentanyl is often found as a drug purchased on the street. Fentanyl can be prescribed to children for cancer and prolonged pain. Nothing in the autopsy suggested that D.S.C. would have been prescribed Fentanyl. Dr. B.C. testified that he was in contact with Dr. J.L. from Montefiore Hospital and Detective H. from NYPD who assisted him with obtaining information from FDNY. D.S.C. was not administered Fentanyl by medical personnel. Dr. B.C. reviewed the hospital records from Montefiore as part of his investigation and the records of the investigator from the OCME office, C.D., who spoke to doctors at Montefiore Hospital as well. Dr. B.C. testified that there was no reason for D.S.C. to have been administered Fentanyl and therefore its "presence dictates it got there by non-medical means." D.S.C.’s death was ruled a homicide since the Fentanyl was not administered for medical purposes, and that it was determined that it came from somewhere else, whether intentional or unintentional. Dr. B.C. testified that when the body processes Fentanyl, it is broken down into Norfentanyl. Norfentanyl was found in D.S.C.’s chest cavity. Dr. B.C. testified that Fentanyl was in D.S.C.’s body long enough for it to be processed to Norfentanyl. Dr. B.C. testified that once Fentanyl was in D.S.C.’s system, the "respiratory compromise that occurred from Fentanyl would have occurred on the scale of minutes to an hour ... in the range of one to two hours." A determination that Fentanyl was in D.S.C.’s system could not be made from a physical observation. He also testified that he sent other samples such as liver and bile, but the lab did not test those. He further testified that different labs have different protocols and the lab chose which samples to test. A sample of vitreous humor came back negative for Fentanyl. Dr. B.C. testified that since it takes a body time to process Fentanyl and since " Fentanyl can be lethal within a matter of minutes there is often a delay in seeing Fentanyl or other substances in vitreous humor that's positive or present in the blood." Dr. B.C. further testified that " Fentanyl can kill in an order of minutes and if it did kill in a matter of minutes, the body would not have time for the Fentanyl to transfer from the blood to the vitreous humor." Dr. B.C. did not speak with D.S.C.’s parents. However, C.D., the investigator from the OCME did. Dr. B.C. testified that his review of the medical records from the emergency room and from EMS appear to show that D.S.C. had died prior to EMS appearing at the home. He further testified that EMS and the emergency room notes indicate that D.S.C. was "cold" and the emergency doctors noted that rigor mortis had already set in D.S.C.’s jaw when he arrived. Dr. B.C. testified that if D.S.C. had encountered Fentanyl from EMS or the hospital, then it would not have broken down to Norfentanyl, since the body needs to be active for this process to occur. Dr. B.C. further testified that although Fentanyl can be used to intubate, this was not done in the instant case because rigor mortis had already set in.
At the end of the petitioner's case, a prima facie application was made by all parents. That application was denied.
Respondent K.C. called case planner S.A. The Court credits her testimony. S.A. testified that respondent father K.C. has liberal resource visits with his children. The resources are family members. The foster parent did not report any concerns with the visits for respondent father and his children. The service plan for respondent father K.C. is bereavement counseling, parenting skills, therapy and weekly screening. Case planner S.A. testified that respondent mother T.S-H. has resource visits with her daughter at the home of the foster parent, her mother-in-law. Respondent mother T.S-H. was referred for parenting and therapy at NY Psychotherapy. Case planner S.A. testified that the children interact well with respondent mother T.S., and that respondent mother T.S. was compliant with therapy. The Case Planner would recommend unsupervised visits for respondent mother T.S. and her children.
Respondent mother T.S-H., the mother of SC A.H. and aunt to L.S.C., D.S.C., and A.S.C., testified on her own behalf. This Court credits her testimony. At the time of the incident, respondent mother T.S-H. resided at the case address with her daughter, the respondents, and the children. Her husband passed away in April 2019 and her grandmother passed away in July 2019. Respondent mother T.S-H. was employed at NYC Ferry on the day D.S.C. passed and submitted her work schedule in evidence as respondent mother T.S-H. Exhibit A. This document shows that she clocked into work on February 14, 2020 at 2:20 p.m. She testified that her shift started at 2:30 p.m. and was supposed to conclude at 10:30 p.m. She testified that it took her about 1 ½ hours to get to work that day. She is employed as a senior deck hand at NYC Ferry. She testified that prior to going to work on February 14, 2020, she left the house around 11:00 a.m. to 11:30 a.m. and brought respondent mother T.S. to the laundromat and her daughter A.H. to the babysitter. She did not recall if she took her daughter to the babysitter and came back to take her sister to the laundromat or whether she did this in one trip. While at work, she received a call from respondent father K.C. who was crying and told her that D.S.C. was not breathing and T.S. was in the ambulance with D.S.C. This call came sometime after 4:00 p.m. She reviewed her schedule which was subsequently submitted into evidence (Exhibit C) to confirm the time respondent father K.C. called her. She testified that she previously informed CPS W. that respondent father K.C. told her he put the children D.S.C. and L.S.C. down for a nap around 2:00 p.m. She testified that she was present for a conversation with respondent father K.C., respondent mother T.S. and CPS B.W., and that it was respondent father K.C. who said he was the one who put the twins down for a nap. She testified that CPS B.W. told respondent father K.C. and respondent mother T.S. that their timeline was inconsistent, and that when D.S.C. got to the hospital, rigor mortis had already set in. She further acknowledged that respondent father K.C. said that was impossible because D.S.C. was fine when he put him down for a nap. She also acknowledged that during this conversation, CPS B.W. "clarified that Mr. K.C. reported that D.S.C.’s jaw was stiff at the time he was found." Respondent mother T.S-H. testified that after CPS B.W. left, she asked respondent mother T.S. and respondent father K.C. if there was anything they could provide to assist in the timeline. She testified that when she came home on February 15th, she asked respondent father K.C. what happened, and he told her that he was the one that placed D.S.C. down to sleep. "He was the one that saw D.S.C. was not breathing and called T.S." Respondent mother T.S-H. impressed this Court as sincere and was the one who was attempting to gather information in assisting the investigation. It was respondent mother T.S-H. who contacted ACS to provide information to put the pieces together. She testified that her father came to reside at the address in the summer and her uncle also resided at the home. She did not know if they were home on February 14, 2020. Respondent mother T.S-H. also testified that she had been actively looking for her own apartment.
Counsel for respondent father K.C. retained Dr. D.T. to testify. Dr. D.T. was deemed an expert in anatomic and forensic pathology. Although this Court credits Dr. D.T.’s testimony, the Court notes that his testimony did not discredit Petitioner's evidence and corroborated much of Dr. B.C.’s testimony. His testimony was also quite speculative and did not address the issue of the hearing. Dr. D.T. testified that he reviewed Dr. B.C.’s curriculum vitae and testimony, the Montefiore Hospital records, FSS progress notes dated February 2020, investigative progress notes from February 2020, and the OCME report dated 11/20/20. He did not speak to D.S.C.’s parents or other family members. He did not review the slides of the autopsy or photographs. He did not have an opinion on the cause of death. He testified that if he were presented with a surprise finding such as an unexpected toxicology, he would try to figure out if the decedent had contact with the drug by speaking with the physician, law enforcement, and reviewing medical records. He testified that the toxicology report in the instant matter revealed that Fentanyl was present in three of D.S.C.’s blood samples: the femoral, the heart, and the chest. Dr. D.T. testified that Fentanyl is a powerful opioid used for pain management or rapid sequence intubation. He knew of no other application for use in an infant. Dr. D.T. testified that D.S.C.’s blood was still positive for Fentanyl when it was re-tested. Dr. D.T. acknowledged that Dr. B.C. spoke with Detective H., Dr. J.L. from Montefiore Hospital, and that he received information regarding pre-hospital care. When asked about the negative presence of Fentanyl in the vitreous humor, he responded that that could result because the drug was not present high enough or long enough to diffuse into the vitreous fluid, or that Fentanyl was not actually in the body. However, since Fentanyl was present in the blood, that argument was not consistent with the evidence. Dr. D.T. testified that " Fentanyl in three of the blood samples is even more convincing that it is real." Dr. D.T. testified that he was "very concerned that Fentanyl was found in three of the blood samples." Dr. D.T. believed that the manner of death in this case would be "best opined or certified as undetermined" because he did not know if D.S.C. was given the drug or somehow came in "accidental contact" with it. Dr. D.T. testified that laboratories have their own protocols. Dr. D.T. testified that Fentanyl was metabolized in D.S.C.’s blood and that Norfentanyl was present in D.S.C.’s chest cavity blood. Dr. D.T. testified that Fentanyl cannot metabolize in a deceased person, and he knew of no cases where Norfentanyl can be generated postmortem. Dr. D.T. testified that he believed D.S.C. was already in rigor mortis at the time the ambulance arrived and stated, "I believe that I recall from the EMS records that upon attempt of intubation that rigor prevented them from opening the mandible to intubate." He testified that infants go in and out of rigor mortis much faster than adults, and it is not uncommon to see an infant in rigor mortis within an hour. He was unaware how long it would take for an infant to be affected by Fentanyl. He further testified that he had never administered Fentanyl to sedate an infant.
Family Court Act Sections 1027 and 1028 requires that this Court grant the respondent's application for the return of the children unless it finds that returning the child would present an "imminent risk to the child's life or health." In Nicholson v Scoppetta , 3 NY3d 357 (2004), the Court of Appeals clarified the standard of "imminent risk" and the factors courts must weigh in deciding applications pursuant to FCA §§ 1022, 1027 and 1028. Courts must consider whether the "children were actually or imminently harmed by reason of [the parent's] failure to exercise even minimal care in providing them with proper oversight," examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior: "would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing." Nicholson at 370. In determining removal, the Court must balance the "imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal." Nicholson at 380. Each case has its own unique factual pattern and "imminent risk" is to be determined by an inquiry of the facts in the specific matter.
In the case at bar, a deceased nine-month-old infant tested positive for Fentanyl, a drug which causes deleterious and devastating effects and in this case, death. This Court takes the strongest negative inference against the respondents, respondent mother T.S. and respondent father K.C., for their failure to testify. Although respondent mother T.S. and respondent father K.C. have indicated that they would not testify in this proceeding due to any pending or possible criminal investigation, this does not prevent this Court from taking such an inference. Unlike a defendant's right in a criminal proceeding where such an adverse inference cannot be drawn, if requested (see Criminal Procedure Law 300.10[2] ) the negative inference applies in a civil case despite a pending criminal case. See Matter of Angel P. (Jose C.) , 155 AD3d 569 (1st Dept. 2017).
The evidence shows conflicting versions as to whose care D.S.C. was in on February 14, 2020. Respondent mother T.S. reported to Montefiore Hospital (Petitioner 7) that she placed D.S.C. down for a nap at 3:00 p.m., and noticed that he was not breathing at 4:30 p.m. However, this contradicts respondent father K.C.’s statement to ACS CPS that he put the twins down for a nap at 2:00 p.m. Respondent mother T.S-H. also acknowledged that respondent father K.C. said he was the one who put D.S.C. down for a nap. The Chief Medical Examiner notes (Petitioner 6) indicate that respondent father K.C. said he put the twins to sleep at 2:00 p.m. and found D.S.C. non-responsive at 4:30 p.m. Moreover, the evidence which respondent father K.C. submitted as Exhibit C, notes from the original investigation in February 2020, are also replete with inconsistencies from the parents. This evidence shows conflicting versions as to whose care the child was in at the time of the incident. When interviewed separately, respondent mother T.S. said she fed, burped, and put L.S.C. down for a nap between 2:00 and 2:30, and then did the same for D.S.C. from 2:30 to 3:00. Respondent father K.C. reported that he put the children down for a nap at around 2:00 p.m. and prior to putting them to sleep he fed and burped them. The notes within this evidence also indicate that respondent father K.C. changed the timeline from 2:00 to 1:00 p.m. and that respondent mother T.S. told CPS that she does not remember if she put the twins down for a nap, and that it could have been the day before. The notes also reflect that respondent father K.C. told CPS the children were not taken to the doctor because they were giving them medication previously prescribed when they last went to the doctor. However, respondent father K.C. was unable to show the medication to CPS and told CPS that D.S.C. was not given medication on February 14th. Respondent mother T.S. gave CPS conflicting statements about whether she gave D.S.C. Tylenol and said, "maybe she gave him Tylenol." Although respondent mother T.S. told CPS that D.S.C. had a fever of about 100 degrees, she did not take him to the doctor and told CPS that the doctor told her that 100 degrees is not a fever, and it would have to be 104 and more (Respondent Father K.C. Exhibit C). The 911 call, as documented in respondent father Exhibit C, demonstrates that respondent father K.C. denied that D.S.C. had a prior cold or fever.
In keeping with their refusal to testify at the hearing, both respondents T.S. and K.C. would not provide information about the date of the incident or the days leading up to the incident during the imminent risk assessment, and thus limited a full assessment of risk. Dr. J.C., the clinician who conducted the evaluation, raised concerns about RF's capacity to medically protect his children, and opined that " cognitive deficits could not be ruled out," and RF's "reliability was assessed to be variable." This Court also notes that during the risk assessment, respondent father K.C. reported that D.S.C. had just received a vaccine a few days before his death which accounted for the child's fever. But the hospital records indicate that respondent mother T.S. reported the child was not due for an immunization until February 20, 2020.
The argument that D.S.C. could have encountered Fentanyl through EMS or the hospital is not supported by the evidence. D.S.C. arrived at the Hospital at 5:00 p.m. and rigor mortis had already set in. The Montefiore records indicate that D.S.C.’s jaw was stiff and he was cold. He was not intubated because rigor mortis was already present. Both Dr. B.C. and Dr. D.T. testified that Fentanyl cannot metabolize to Norfentanyl if the individual is deceased when encountering the drug. Norfentanyl was present in the blood sample taken from D.S.C.’s chest. The notes of medical investigator C.D. indicate that respondent father K.C. reported he put the twins in the crib at 14:00 hrs. and when he woke up at 16:30 he found D.S.C. unresponsive. The 911 call which is referenced in RF's Exhibit C shows that respondent father K.C. told 911 that D.S.C. was "not breathing at all, heart not beating, nothing." This exhibit also documents a conversation between respondent father K.C. and CPS where respondent father acknowledged that when he tried to wake D.S.C., he could not open his mouth. Exhibit C also reflect notes which state "the father reported that the child usually responds to him upon awaking but he was unresponsive. The father went to turn the child over and he found the child stiff. He then tried to open the child's mouth but he couldn't." The notes within this exhibit also reflect a conversation on February 18, 2020 between CPS and respondent father K.C. indicating that respondent father K.C. "stated it was true that when he tried to open D.S.C.’s mouth, he could not because it was hard, and he observed what he thinks milk coming out of it." The evidence which was introduced both by testimony and documents clearly indicate that D.S.C. was already deceased prior to any medical intervention. However, both respondent mother T.S. and respondent father K.C. offer no explanation for this.
The subject children are young and the fact that a fatality occurred and the parents have not presented information regarding this incident and the days leading up to it is of extreme concern. This Court takes the strongest negative inference that had they testified, their testimony would not support their position. Although there has been argument that the children are not at risk because ACS did not remove them for nine months, that argument is not compelling. There was a fatality at the home and the child had a deadly and presumably non-prescribed drug in his system. The parents have conflicting versions as to the events which surround this devastating occurrence and will not provide the Court with any information. In matter of Jacob P. v. April B. , 37 AD3d 836, 838 (2nd Dept. 2007), the appellate court held that "in light of the serious nature of the traumatic injuries suffered by the infant, the failure of the father to testify at the hearing, and lack of explanation for the infant's injuries it was an improvident exercise of the Family court's discretion to return the child to the parents pending the fact-finding hearing on the abuse petition." Similarly, in Matter of Daniel O (Jaquan O) , 141 AD3d 434 (1st Dept. 2016), the court held that it was an "improvident exercise of discretion" for the Family Court to have authorized unsupervised visits during the pendency of the abuse and neglect proceeding. In Daniel O , a three-month old child was alleged to have sustained life-threatening head injuries and fractured ribs while in "respondent's exclusive care."
Family Court Act Section 1046(a)(i) states 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, or the legal responsibility of, the respondent." Family Court Act Section 1046(a)(ii) states 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, as the case may be, of the parent or other person legally responsible."
It is not required that the children who are the subject of the proceeding be previously harmed while in the parent's care where it is shown that "the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent's care." Matter of Rosy S. , 54 AD3d 377, 378 (2nd Dept. 2008). See also Matter of Tatih E. , 168 AD3d 935, 935 (2nd Dept. 2019).
This Court is troubled by Respondents T.S. and K.C.’s refusal to shed any light and provide any information about whose care D.S.C. was in at the time of the incident and the days leading up to the fatality, as well as by the many inconsistencies documented in the evidence. Mere compliance with the service plan is not enough to ameliorate the imminent risk. In Julissia B , 128 AD3d 690, 691 (2nd Dept. 2015), the Family Court erred in granting a 1028 application where "in particular, the evidence established, among other things, that the mother had failed to address or acknowledge the circumstances that led to the removal of the child." Similarly, in Matter of Nasir C. , 181 AD3d 964, 965 (2nd Dept. 2020), it was error to return the children to the mother's care when "the evidence failed to establish that the mother adequately addressed and acknowledged the circumstances that led to the death of her first child and the removal of her other children." See also Matter of Abass D. , 166 AD3d 517 (1st Dept. 2018). The facts of this case are of extreme concern and quite disturbing. In this Court's view, there is no difference between a child being exposed to the deadly drug of Fentanyl or having a loaded gun in his or her reach. Although Dr. D.T. testified that it is unknown if D.S.C. encountered Fentanyl by accidental or intentional means, there has been nothing shown to this Court why D.S.C., an infant, would be exposed to such a deadly drug.
Respondents’ argument that it may never be known what happened does not address whether or not there is imminent risk. Their continued silence and previous inconsistencies do not provide a sound and substantial basis for the children to be returned to their care. At this time, this Court rules that there are no orders that can be put in place to ameliorate imminent risk for L.S.C. and A.S.C. Both children are extremely young and lack their own protective capacity, and the risk of removal is outweighed by the risk of harm. Respondent father K.C. in his summation cites an unreported decision by Bronx Family Court, Matter of Brian M. There, the children were not removed in part because they would have been placed in "stranger foster care" even though the court found that the deceased child was killed by blunt force trauma and the parents’ explanations were not sufficient to explain the injuries. In the instant case, L.S.C. and A.S.C. have been placed with relatives and the respondents have liberal resource visits as well as community sandwich visits. The Court finds that ACS has met its burden and that the health and welfare of L.S.C. and A.S.C. would be at imminent risk if they were returned to their parents.
The SC A.H. is in a different situation. Respondent mother T.S-H. was not D.S.C.’s parent. This Court has had the opportunity to assess her testimony and the documentary evidence which was submitted. In addition to testifying, respondent mother T.S-H. fully cooperated with the imminent risk assessment and the ACS and police investigation. At this hearing, petitioner has not offered evidence to show that SC A.H. would be in imminent risk if released to her mother's care with an order that she not reside with co-respondents or allow A.H. to have unsupervised contact with the co-respondents. The child has already suffered the loss of her father and this Court finds that she would not be at imminent risk if released to her mother. Thereby, this Court will release SC A.H. on condition that respondent mother T.S-H. resides in a location separate and apart from respondent mother T.S. and respondent father K.C.
Conclusion:
WHEREFORE, the Court denies the release of the subject children L.S.C. and A.S.C. to respondents T.S. and K.C. Orders of liberal resource and sandwich visits are continued. The Court will release the SC A.H. to T.S-H. under ACS supervision if she resides in a different location from T.S. and K.C.
Respondent mother T.S-H. will not permit SC A.H. to have unsupervised contact with T.S. and K.C.
Respondent mother T.S-H. is not to bring the SC A.H. to the case address and is not to allow any contact between the SC A.H. and L.S. and G.S.
Respondent mother T.S-H. will permit ACS to make announced and unannounced visits to her home and cooperate with all reasonable referrals which shall be in writing and on notice to counsel.
This constitutes the decision and order of the Court.