In re Brea E.

Full title: In the Matter of Brea E., A Child under Eighteen Years of Age Alleged to…

Court: Family Court, Kings County

Date published: Feb 22, 2019

2019 N.Y. Slip Op. 50662 (N.Y. Fam. Ct. 2019)

Opinion

NA-XXXXX-18

02-22-2019

In the Matter of Brea E., A Child under Eighteen Years of Age Alleged to be Abused by Brenton E., Makida J., Respondents.

Hetal Shah, Esq. John Morgano, Esq. Administration for Children's Services Counsel for the Petitioner Mary Gibbons, Esq. Emma Alpert, Esq. Brooklyn Defender Services, Family Defense Practice Alexa Lutchen, Esq., pro bono Allegra Bianchini, Esq., pro bono Madeleine Vera Wyksra, Esq, pro bono Dara Sheinfeld, Esq. pro bono Davis Polk Counsel for the Respondent father Abdula Greene, Esq. New York, NY Counsel for the Respondent mother Sara Reisberg, Esq. Legal Aid Society Attorney for the Child

Jacqueline B. Deane, J.

Hetal Shah, Esq. John Morgano, Esq. Administration for Children's Services Counsel for the Petitioner Mary Gibbons, Esq. Emma Alpert, Esq. Brooklyn Defender Services, Family Defense Practice Alexa Lutchen, Esq., pro bono Allegra Bianchini, Esq., pro bono Madeleine Vera Wyksra, Esq, pro bono Dara Sheinfeld, Esq. pro bono Davis Polk Counsel for the Respondent father Abdula Greene, Esq. New York, NY Counsel for the Respondent mother Sara Reisberg, Esq. Legal Aid Society Attorney for the Child Jacqueline B. Deane, J.

Procedural and Factual Background

This Court held a hearing pursuant to Family Court Act § 1028 on this abuse petition which involves allegations of abuse of the then 5-month old infant subject child, Brea, while in the care of her parents, the Respondents. Brea was admitted to the hospital on October 26, 2018, where she presented as unresponsive and having seizures. Although ACS initially requested a removal of the child from both parents, based on the October 26th timeline alleged in the petition, the Court ordered, with the AFC's consent, that the mother be allowed to live with Brea as long as she was not left alone with the subject child. Thus, only the Respondent father, Mr. E., has been excluded from Brea's place of residence since the date of filing. This hearing was held on the Respondent father's application that the Court return his now 9-month-old daughter to his care and custody along with her mother's.¹

1 Despite the Court's suggestion that the Respondent mother join in this hearing since the issues limiting her ability to be alone with Brea overlapped with the father's application, counsel for Ms. J. chose not to participate and to reserve her right to a hearing in the future. As the Court anticipated, the proof here relates equally to the question of Ms. J.'s culpability for Brea's condition, and therefore the Court will make orders regarding the mother's contact with the child as well to the extent such orders are in the child's best interests.

The Administration for Children's Services ("ACS" or "Petitioner") filed this petition on November 15, 2018, and sought removal of the subject child after doctors at Maimonides Hospital determined that Brea's condition was not consistent with any other medical explanation other than a diagnosis of abusive head trauma ("AHT"). Although the matter was also investigated by the police, no criminal charges have been brought against either parent. Brea was released from the hospital on November 15th and since then, has been in the care of her mother supervised by either of her grandmothers or her maternal aunt pursuant to this Court's order that Ms. J. cannot be left alone with Brea. Although Brea suffered multiple seizures while in the hospital, she has since returned to her prior state of good health and, at this time, does not appear to have suffered any lasting harm.

At the hearing, ACS called as its witnesses Ms. Catherine Packer-Sasu, the original ACS investigating child protective worker, and Dr. Walker-Descartes, the child abuse specialist from Maimonides Hospital. The Respondent father called Dr. Ghatan, a pediatric neurosurgeon from Mt. Sinai Hospital, and also testified on his own behalf. Petitioner then called, on rebuttal, Dr. Stein, the neuroradiologist from Maimonides who had consulted with Dr. Walker-Descartes on Brea's films. Finally, the Respondent introduced the recording of his calls to 911. ACS and the Respondent introduced numerous and voluminous other exhibits into evidence which the Court has carefully reviewed. The Attorney for the Child did not present any independent evidence but vigorously participated in the hearing and strenuously asserted her position that the subject child should be returned to both parents and that doing so would not put her at risk.

Evidence Summary

Factual Account

The allegations in this petition are the sole basis for the removal of the child Brea who, up until her hospitalization at 5 months of age, had been, by all accounts, a completely healthy and well-cared for first child of her two doting parents. The evidence established that both Respondents have consistently given the same account of the events of October 26th to multiple people including EMS, the caseworker, police officers, and various medical providers at the two hospitals where Brea was treated. This account was testified to by the caseworker and Dr. Walker-Descartes as well as by Mr. E. himself, and is also repeated throughout numerous exhibits. In October, Ms. J. had recently returned to work leaving Mr. E. as Brea's primary caretaker during the daytime hours. Since Mr. E. works in the evenings, the parents would switch places caring for Brea when the mother returned from work in the late afternoon. Throughout the mother's workday, Mr. E. would provide updates about Brea through phone calls, texts, pictures and videos as Ms. J. was undoubtedly missing her daughter during this transition. In fact, the caseworker testified that she was able to view some videos and pictures of Brea taken by her father on the same day she went to the hospital where she appeared normal and happy.

According to both parents, Ms. J. had left for work as usual early in the morning of October 26th after caring for Brea and putting her back to sleep. Mr. E. testified that the rest of the morning also proceeded in a typical fashion with nothing unusual about Brea's condition. He described credibly, and in great detail, all the routines he and Brea went through that morning including the loving ways he cared for Brea, trying to make her laugh and reveling in the joy he felt when he was successful, stating "it's kind of the best thing you ever hear and knowing you were responsible for." Tr., 1/25/19, p. 65, lns. 23-4.² At approximately 1:30pm, Mr. E. had fed Brea and put her in a rocking chair while he went to the kitchen to get himself something to eat. When he did not hear Brea's usual noises from the next room, Mr. E. became concerned that it was too quiet and went to check on Brea. He immediately observed that she was slumped over on her right side and appeared to have foam coming out of her mouth. Mr. E. testified that he picked Brea up and she was limp in his arms in a way he had never felt before. He immediately called the mother at work and described Brea's condition. Ms. J. told him to call 911 immediately which Mr. E. did and then called back a second time to get further instructions while waiting for the ambulance.

2 Transcripts appear to have been ordered by multiple parties and the transcripts available are from two different transcription services, Geneva and Ubiqus. All transcript quotations in this decision were transcribed by Geneva.

Notably, it was the Respondent father and not ACS who introduced these 911 calls into evidence because they fully support Mr. E.'s account of what occurred that afternoon. There was nothing in the calls to even suggest that Mr. E.'s had done something to Brea or had any idea whatsoever about what caused Brea's condition. Mr. E.'s own testimony, the account he gave to the caseworker, and his tone in the recorded 911 calls, all describe his feelings of extreme fear and panic over the inexplicable sudden change in his daughter's condition. Mr. E. then rode in the ambulance with Brea to Brookdale Hospital and Ms. J. met them there. A few hours later, the parents travelled together with their daughter in the ambulance when she was transferred to Maimonides for a more specialized level of care than was available at Brookdale. Mr. E. testified that he slept on the floor at the hospital the entire 3 weeks his daughter was in the hospital. Tr. 1/25/19 p. 77.

Since the time Brea was released from the hospital 3 months ago, Mr. E. has made every effort to see his daughter as many days a week and for as long as possible, even when he was living in Staten Island. He testified that being separated from her was heartbreaking and the "worst feeling in the world." Tr. 2/07/19, p. 153, lns. 9-10. The caseworker has observed Mr. E. with his daughter since her hospitalization and stated that Brea appears happy with him and all interactions have been appropriate. Ms. Sasu confirmed that Mr. E. has fully complied with court orders that his visits be supervised with Brea and he not remain over-night in the home. Caseworker Sasu's investigation also revealed that neither parent has any prior child protective or criminal history nor were there any prior reports of domestic violence or mental health issues.

The Medical Evidence

Since this case ultimately revolves around the various expert opinions as to the cause of Brea's symptoms and the specific radiological findings, the Court will briefly summarize the notations in the hospital records and the conclusions of each of the three experts who testified.

Brookdale Records

At Brookdale, the records from October 26th reveal that Brea presented initially as nonresponsive but gradually improved to lethargic, with right-sided seizures and an altered mental state. Petitioner's Ex. 5, pp.1, 18-19). The CT scan conducted upon her admission showed an acute "subdural hematoma" ("SDH") or bleed on the left cerebral convexity and "high density raising question of dural venous thrombosis." Petitioner's Ex. 5, p. 33.

Maimonides Records

The Maimonides medical records document the treatment Brea received throughout her almost 3-week hospital stay as well as establish that Mr. E. and Ms. J. were attentive to, and appropriately worried about, Brea throughout her hospitalization, remaining over-night in her room throughout her stay. The first CT done for Brea at Maimonides led to findings by Dr. Denny of a "thin acute subdural hematoma over the left frontoparietal convexity" and a "very thin chronic subdural hemorrhage over the high right parietal convexity which is only faintly visible on the outside [Brookdale] CT which may be left over from birth." Petitioner's Ex. 6, p. 591. On October 27th, Brea began to have a fever. A "fast" MRI was done that day and the thin acute SDH was again seen by Dr. Denny Bruce. On October 28th, a pediatric neurologist, Dr. Roschina, who reviewed that MRI noted, "[t]here was a concern about possible cerebral sinus venous thrombosis on initial CT head from Brookdale hospital, however, no findings were appreciated on f/u CT and MRI at [Maimonides]." Id. at p. 831. On October 31st, a full skeletal survey was done and revealed no new or old bone fractures on any part of Brea's body. Id. at 859. A full MRI done that same day was read by Dr. Sun and signed off on by Dr. Stein. It determined that the "craneocervical junction is within normal limits." Id. at 714. A chest x-ray from October 26th, read by Dr. Lui, showed "bilateral disease, nonspecific, possibly viral in origin." Id. at 848. Finally, no retinal hemorrhages were seen. Id. at p. 42. Fortunately, Brea's seizures subsided on October 31st and by the time she was seen on December 12th, at a follow-up visit to the clinic, Dr Walker-Descartes described Brea as doing "great," with just a small amount of right-sided weakness. Tr. 1/04/19 p. 60, ln. 7. Dr. Walker-Descartes

Dr. Walker-Descartes was qualified without objection as an expert in the fields of pediatrics and child abuse. According to her curriculum vitae ("CV") which was admitted into evidence as Pet's Ex. 3, the doctor is the Clinical Director of Child Maltreatment Services at Maimonides Medical Center, has been in that role for 4 years, and has been a child abuse pediatrician for 7 years. Dr. Walker-Descartes was first asked to consult on Brea's case on October 28th, two days after she was admitted to that hospital, because of the finding of a SDH which presents a concern that trauma may have been involved. The doctor testified that she reviewed the records from Brookdale as well as those from Maimonides, spoke to both parents, and conducted her own physical exam of Brea. The parents described the same course of events to Dr. Walker-Descartes that they had to the caseworker and that Mr. E. testified to at this hearing.

Brea remained in the pediatric intensive care unit connected to an EEG machine to monitor her seizure activity. Some of Brea's seizures manifested as clenching of her right fist or slight twitching of her right arm as well as an inability to track with her eyes and some were sub-clinical meaning they were not visible to the naked eye but could be monitored on the EEG. Tr. 1/14/19, p. 75. The doctor's examination showed no bruising anywhere on Brea's body, no swelling to her head and no other external signs of injury. This information in total revealed that Brea was an otherwise healthy 5-month-old baby who was presenting with seizures and an acute (new) SDH as well as a chronic (old) SDH. Dr. Walker-Descartes testified that her role at that point was to "follow through with the evaluation of all of the potential causes including trauma that could have caused her presentation." Transcript 1/04/19, p. 19, lns. 13-15. Dr. Walker-Descartes then ordered any additional tests that were needed in her opinion to rule out these "differentials" or possible causes. On November 7th, a week after Brea's last seizure, Dr. Walker-Descartes asked the Respondents to keep Brea in the hospital voluntarily past her medical readiness for discharge to finish assessing causation and mentioned to them the possibility of abusive head trauma. Both parents fully agreed to allow Brea to remain hospitalized for this purpose..

The differentials considered by Dr. Walker-Descartes included a metabolic disorder, bleeding or clotting disorder, infectious disease and, finally, accidental or non-accidental trauma. Petitioner's Ex. 2, Report of Dr. Walker-Descartes, dated 11/13/18, p. 2. According to Dr. Walker-Descartes, it was only after excluding all of the other possibilities that she concluded, to a reasonable degree of medical certainty, that Brea's condition was non-accidental and more specifically resulting from "shaking."

Dr. Walker-Descartes acknowledged on cross-examination that her role is to coordinate the team of doctors in the relevant specialties to consult and rule out the various possible causes of a child's presenting symptoms, and that she, herself, is not an expert in neurology, hematology, radiology or ophthalmology, all specialists she consulted on Brea's case. While the doctor did say she would "challenge" their opinions and order more tests if their conclusions did not make sense to her, id. at p. 40, ln. 8., it is clear from her CV that she does not have board certifications in any of these areas. Dr. Walker-Descartes did fully accept the findings of the Maimonides radiologists that the Brookdale notation of a possible venous thrombosis was incorrect. But the doctor also testified on cross-examination about various Maimonides findings that she did not consider to be correct or significant in her medical conclusion. First, although Brea did run a fever on her second day in the hospital and a blood test revealed a respiratory virus, specifically RSV, Dr. Walker-Descartes did not believe infection was a cause of any of Brea's neurological symptoms. She acknowledged that the radiologist who read Brea's chest x-ray noted "bi-lateral disease, non-specific, possibly viral in origin" but believed that finding was not clinically significant. Tr. 1/14/19, p. 44, lns. 10-16. Additionally, the same radiologist, Dr. Denny, that Dr. Walker-Descartes relied on for his finding of the old subdural hematoma on the first Maimonides scan, opined that this "front right subdural hematoma might have been left over from birth." However, when confronted on the stand with this statement of Dr. Denny, Dr. Walker-Descartes testified flatly that not only did she believe Dr. Denny was wrong, she "knew" that he was wrong. Id. at p. 93, lns. 13-7. In later testimony, Dr Walker-Descartes revealed that her certainty was based on studies of birth-related subdural hematomas and inference based on Brea's symptoms from the acute hematoma. Dr. Ghatan

Dr. Ghatan was qualified without objection as an expert in the field of pediatric neurosurgery. According to his CV which was admitted into evidence as Respondent father's Ex. D, the doctor is the Director of Pediatric Neurosurgery and the Site Chair of Neurosurgery at Mount Sinai Medical Center. Dr. Ghatan graduated from medical school 25 years ago and received his certification in pediatric neurosurgery 11 years ago. He has focused his research on epilepsy and pediatric neurosurgery. Id. In his role at Mt Sinai, the doctor testified that he is frequently consulted by child abuse pediatricians for his expert opinion and was asked by the Respondent's attorneys to review the full set of Brea's medical records from both Brookdale and Maimonides and all of her scans.

Dr. Ghatan reached the conclusion, to a reasonable degree of medical certainty, that Brea's condition was not the result of child abuse and then agreed to testify without compensation on her father's behalf. In his daily practice, Dr. Ghatan testified that he sees infants with SDHs at least once a week. Based on his review of all of Brea's records and scans, Dr. Ghatan determined that Brea was having a "focal seizure" when she was admitted to the hospital which resulted in a temporary loss of consciousness analogous to a tiny stroke. Dr. Ghatan definitively disagreed with the Maimonides doctors' conclusion that Brea had an acute SDH. In contrast, he found a "small subarachnoid hemorrhage and a thrombosed vein both of which are technically in the subdural space." Tr. 1/24/19, p. 15, lns. 3-5. Dr. Ghatan explained that when a thrombosis or clot occurs, the blood gets backed up and breaks smaller vessels causing the hemorrhage in the subarachnoid space. Dr. Ghatan testified that the blood being described by the Maimonides doctors as a SDH actually represented the behavior of a clot as it dispersed in the subarachnoid space. To demonstrate their expert's findings, the Respondent Father introduced into evidence a PowerPoint showing a diagram of the normal flow of blood and cerebral spinal fluid through the brain and using a few of Brea's specific scans to pinpoint the location of the venous thrombosis. See Respondent father's Ex. E. The dot representing the thrombosis was very evident to the Court and, according to Dr. Ghatan, was in the precise location that Brea's focal seizure stemmed from. While Dr. Ghatan did agree with the Maimonides finding that there was a chronic SDH on the right side of Brea's brain, his expert opinion was that it was due to birth trauma based on its location and size. Dr. Ghatan testified that birth related hematomas are typically asymptomatic and that this finding was not clinically significant in Brea's case.

Dr. Ghatan's reasons for concluding that the acute finding was not the product of shaking was due to the ABSENCE of the following findings: 1) tearing of the bridging veins in the frontal lobe, 2) retinal hemorrhages, 3) contusions in the brain, 4) contralateral brain injury; 5) blood in the craneo-cervical junction, 6) prior or current fractures.

Dr. Ghatan summed up his findings by stating that,

Brea E. suffered a thrombosis of a bridging vein in the left parasagittal region near her somatosensory cortex. This caused an aberration, an alteration in the local blood flow in that area irritating the cerebral cortex of the somatosensory region, which then manifested in a focal seizure emanating from the left brain that caused the abnormal movements that were witnessed and then confirmed on EEG in the right side of the body. Left brain seizures, left-sided thrombotic abnormality, left-sided subarachnoid hemorrhage, all colocalized with the part of the brain that would manifest her right-sided focal seizure. No other signs of trauma or injury or abuse or [sic] any kind. The chronic subdural hematoma on the right which was read by the radiologist is not something of significants and could be attributed to birth injury.

Tr. 1/24/19, p. 85, lns. 10-24. Dr. Ghatan concluded that, "[t]his is not a picture consistent with inflicted trauma." Id. at p. 70, lns. 2-6.

According to Dr. Ghatan the size of this vein was "[b]ig enough to cause a clinically relevant incident that is the most frightening thing that a parent can witness which is a seizure [b]ut small enough that it did not lead to a, a catastrophic stroke." Id. at p. 96, lns. 6-11.

As far as causation, Dr. Ghatan listed several possibilities, including a virus which the medical records indicate Brea in fact had, but testified that, for approximately 30% percent of strokes or venous thromboses in infants, the cause remains a mystery. Dr. Ghatan felt that Brea's workup was incomplete to rule out all of the known possibilities but that it was likely that her case would fall into the unknown causation category. Although strokes in infants are rare, because Dr. Ghatan specializes in vascular disorders in children, he sees this condition more frequently than other physicians.

Dr. Ghatan provided further explanation of why he did not believe Brea's injuries were consistent with a shaking incident. The doctor testified that "the initial insult to Brea E.' brain was not a global insult, it wasn't a widespread insult, it was not a diffused insult. It was focal." Id. at p. 94, lns. 5-7. This finding was significant because "a human who is inflicting force cannot titrate their force to limit it to a single bridging vein in the parietal region. Meaning you cannot cause just a tiny little subarachnoid hemorrhage around the thrombosed vein with inflicted trauma." Id. at p. 99, lns. 3-7. Additionally, Dr. Ghatan testified that if there had been a shaking incident, blood is seen around the neck area in approximately 50% of the cases because of the size of a baby's head in proportion to its body and the fact that a 5-month-old does not have the neck muscles or tone to resist the force of shaking. During shaking, the neck acts as a "fulcrum," which is the "area of maximum movement and that's where a baby when they're shaken develops signs of trauma" specifically the "craneocervical junction." Id. at p. 97-8. The fact that Brea was found to have a larger head in proportion to her petite body, made the absence of any injury to her craneocervical junction significant to Dr. Ghatan. Dr. Stein

Dr. Stein was called by the Petitioner on rebuttal and was qualified without objection as an expert in the field of neuroradiology. According to his CV, which was admitted into evidence as Petitioner's Exhibit 9, the doctor has practiced in that field for 9 years and is the Director of Neuroradiology at Maimonides Medical Center. Dr. Stein testified that his job involves the review of imaging for Maimonides patients whether in the emergency room, in-patient or out-patient. Dr. Stein had initially reviewed Brea's scans while she was in the hospital and then agreed to re-review them at the request of ACS after the testimony of Dr. Ghatan. Notably, Dr. Stein testified that he never reviewed Brea's full medical records either from Maimonides or from Brookdale.

Upon the re-review, Dr. Stein confirmed his original readings of a recent, or acute, SDH and a past, or chronic, SDH. However, Dr. Stein made a significant correction to his earlier readings of Brea's scans. He testified that, upon further review, he DID observe two small clots which he described as cortical vein thromboses ("CVT"). These scans had initially been reviewed by Dr. Sun and Dr. Stein had performed a supervisory review and signed off on his findings which did not include CVT. Dr. Stein impressed the Court as being forthright and contrite about his earlier missed diagnoses and in fact testified that he sat before the Court "chastised and chagrinned" that he had missed these clots originally. Tr. 2/07/2019, p. 103, ln. 17. However, Dr. Stein reiterated his conviction that the acute subdural hematoma is what was originally responsible for Brea's presenting symptoms based on his prior experience and the fact that he had never seen or read about any cases where a CVT occurred initially and then later resulted in a SDH.

Dr. Stein acknowledged that, although his training included pediatrics, he has not received a certification in the specialty of pediatric neuroradiology. In fact, Dr. Stein testified that only approximately 5% of scans he reviews are for children under the age of 1. Id. at 144, lns. 18-23. See In re Tyler S., 103 AD3d 731, 733 [2d Dept 2013] (neuroradiologist testified that he rarely reviewed images of children under the age of 6). Dr. Stein testified that CVT is diagnosis that is easy to overlook and that there have been occasions where he reviewed junior radiologists' reviews and amended the patients' charts to include CVT where it had been missed. Dr. Stein agreed that a small CVT could potentially cause the stroke symptoms that Brea suffered but he could not comment on the frequency of CVT as a cause for strokes. He noted that sino-venous thromboses which occur in the larger veins in the head are easier to diagnose and therefore may more frequently be detected as the cause of a stroke.

Importantly, Dr. Stein stated that the role of the radiologist is not to diagnose, but to review the films or scans and make findings based on what s/he sees in front of him/her. Radiologists can also give "impressions" based on both what s/he is seeing and the context of the case which includes a comparison with earlier slides/scans.

Ultimately, Dr. Stein testified that he could conclude to reasonable degree of medical certainty that Brea's acute SDH was not caused by the CVT because of his belief that these clots would have been too small to cause even the very small SDH and the fact that the literature describes SDHs as being more attributable to clots. Dr. Stein remained firm in his view that Brea did have an acute SDH.

Legal Analysis

Family Court Act § 1028 states, in relevant part:

Upon the application of the parent for the care of a child temporarily removed under this part the court shall hold a hearing to determine whether the child should be returned 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.

As this Court has noted previously, see In re Rihana J.H., 54 Misc 3d 1223(A) [Fam Ct 2017], the knowledge and science of the causation of childhood head injuries has changed substantially in the past ten years. While the medical issues in this case are different as Brea did not present with the "shaken baby triad," the concern about misdiagnosis of abuse is just as real. While Dr. Walker-Descartes testified about the risk of re-injury to children returned to a parent who has shaken them, this Court is equally mindful of the irrevocable consequences to families where abuse is mistakenly diagnosed. Not only is the personal and public stigma of being labelled a "child abuser" profound for any parent but the consequences to the child, in this case Brea, of losing the continuous and unrestricted presence of her father at this critical early phase of her development are life-long and irrevocable. See In re Tyler S., 103 AD3d 731, 733 [2d Dept 2013]. This loss would be great here given Mr. E.'s demonstrated love and dedication to raising his daughter as an equal parent to her mother, and the Court must balance this harm against any finding of risk to Brea at this hearing.

The predominant evidence at this hearing was highly technical and detailed testimony about the inner workings of the infant brain which this Court endeavored to absorb and understand. Of course, the Court lacks the extensive medical training and knowledge of these three accomplished doctors and thus cannot draw its own independent opinion about those findings. Yet, in fulfilling the mandate of the Family Court Act, the Court must assess the relative expertise of each doctor and the strength of their conclusions at least as weighed against the opposing party's evidence.

As in all proceedings under Article 10 of the Family Court Act, Petitioner ACS must establish its case even at this preliminary 1028 hearing by a preponderance of the evidence. This would mean that if the Court were to find each side's expert testimony to be of equal weight, ACS would fail in meeting its burden of proving imminent risk and Brea must be returned to her father's care. See Matter of Liana HH., 165 AD3d 1386, 1388 [3d Dept 2018] (Family Court acknowledged that the alternate explanation proffered by respondent was supported by medical experts who drew a very different conclusion from the available data In our view, respondent advanced a persuasive, factually based explanation as to how the child's "condition could reasonably have occurred . . . without the acts or omissions of respondent.") (citing Matter of Philip M., 82 NY2d 238, 244 [1993]; In re Natalie AA., 130 AD3d 50, 59 [3d Dept 2015]; In re Amir L., 104 AD3d 505 [1st Dept 2013]; Tyler S. at 733 ("[T] the Family Court erred in determining that the mother failed to come forward with sufficient satisfactory evidence to rebut the petitioner's case" given the testimony of the mother's expert); In re David T.-C., 110 AD3d 1084, 1086 [2d Dept 2013] ("[T]he mother presented sufficient evidence to rebut the petitioner's case, through the testimony of her expert witness."

First, it is undisputed and notable that at neither hospital was Brea observed to have ANY external injuries, marks or other evident signs of trauma or mistreatment. Furthermore, the full skeletal survey revealed no new or old bone fractures on any part of Brea's body and the records from her pediatrician show no other concerns about her care up until her hospitalization. Finally, Brea lacked many of the internal injuries to the head such as retinal hemorrhages and skull fractures which are a frequent sign of abusive head trauma. In fact, a medical journal article put in evidence by Petitioner states that the incidence of retinal hemorrhages in AHT is approximately 85%. Petitioner's Ex. 8, "Consensus statement on abuse head trauma in infants and young children," Pediatric Radiology, Arabinda Kumar Choudary, et al (Published online May 23, 2018), p. 6. Thus, Brea's case is unusual in the limited number of radiological findings following a sudden collapse and seizure activity.

Dr. Walker-Descartes relied in part on the Maimonides finding of the chronic SDH — which was not seen at Brookdale — in her determination that Brea's injuries were caused by non-accidental trauma because she did not believe the old SDH was birth-related. Therefore, she needed explanations for the two SDHs from two different time frames. However, the Maimonides radiologist, Dr. Denny, who first noted the chronic SDH, himself stated that it might be birth related. Dr. Walker-Descartes ruled out birth as a cause in part because of a study — which was introduced at the hearing by the Respondent father ("Prevalence and Evolution of Intracranial Hemorrhage in Asymptomatic Term Infants," Amer. Soc'y of Neuroradiology, V.J. Rooks, et al, 4/3/2008, Respondent father's Ex. C) — in which birth-related SDHs all resolved no later than age 3 months. However, Dr. Ghatan testified that this study was flawed because the number of infants whose parents followed through with the subsequent scans was only 18 in total, which was less than 40% of the sample of infants who had SDHs. Respondent father's Ex. C, p. 7. Furthermore, Dr. Ghatan testified that the 2008 article's conclusions had been rebutted by a more recent study involving post-mortem exams of infants where birth-related SDHs were seen up to 1 year later. ACS also introduced another medical article entitled "Neuropathology of inflicted head injury in children: I. Patterns of brain damage"³ from 2001. Petitioner's Ex 7. However, Dr. Ghatan testified that this article is of limited value today because the technology of brain scans has improved significantly in the 17 years since it was published.

3 Brain, Vol. 124, Issue 7, 1 July 2001, pp. 1290-98.

Petitioner introduced a medical journal article into evidence that represents a consensus statement by a group of doctors with relevant expertise that endeavors to provide guidance to courts making difficult decisions about the causation of neurological findings in infants like the situation this Court faces. See Petitioner's Ex. 8, supra. The thrust of the article is to caution judges and juries from being misdirected away from finding child abuse as the cause of trauma and more specifically from disbelieving in the existence of abusive head trauma as a diagnosis for severe injuries in babies. Certainly, this Court does not question the existence of abusive head trauma and instances of infants being shaken by caregivers. The question is whether the evidence supports that conclusion by the required standard of proof in a given case. The article itself acknowledges this. Pet.'s Ex 8 at p. 3 ("Instead of arguing that there is reasonable doubt that a physicians made a mistake in this case, they are arguing that child abuse is routinely overdiagnosed.")

In fact, this article actually provides several bases for questioning Maimonides's theory of causation here. First, the article states that "the peak incidence of fatal AHT is 1-2 months of age" and that it "occurs most frequently with other forms of abuse and less often in isolation." Id. at pp.3-4. At 5 months, Brea was several months older and thus at an easier and more manageable stage of development and did not present any other signs of abuse. The article states that the "clinical certainty for AHT is higher for children with more severe presentations or with multiple findings." Id. at p. 5. Specifically, 78% of infants with AHT have some spinal finding, mostly ligamentous and 75% have spinal SDHs. Id. at p. 7. These statistics support Dr. Ghatan's testimony that the lack of any cervical-related findings on Brea was significant. Beyond these statements in the article, which actually support the defense arguments against the AHT diagnosis in this case, many of the traps the article warns courts about are not present in Brea's case. For example, there is no claim here that the birth-related SDH re-bled to cause the acute bleed; there is no attempt to focus on explaining away one finding while ignoring other signs of trauma. In fact, Brea's case is significantly different from the ones discussed in the article because she did not have the constellation of medical findings that are more typical in cases of AHT.

The science of interpreting radiological images of the brain and determining causation is not an exact one. Reasonable minds — applying evidence-based expertise — can differ as in this case. All three of these experts had impeccable academic credentials and years of relevant expertise. All three testified clearly and cogently and were able to explain the bases for their conclusions to the Court. While ACS called two experts, they did not provide two independent conclusions. Rather their opinion is intertwined in that Dr. Walker-Descartes relied on Dr. Stein, and the other Maimonides radiologists expertise, in reading and interpreting Brea's scans. As she testified, Dr. Walker-Descartes's role is to assemble a list of differentials based on those findings and ensure the relevant experts are involved in doing the necessary tests to rule out causes other than head trauma. Thus, the Court will weigh the Maimonides experts together against the opinion of Dr. Ghatan.

As a pediatric neurosurgeon, Dr. Ghatan not only specializes in children, but his area of expertise is the brain which is the site of Brea's medical findings. Although Dr. Stein was qualified as a neuroradiologist, his expertise is in viewing films and scans, and his job does not involve diagnosing and treating patients with neurological symptoms. In fact, Dr. Stein testified that he did not know the details of Brea's symptoms, did not review her full medical records from either hospital, and did not even know that the Brookdale radiologist had noted a possible venous thrombosis. Dr. Ghatan testified that he saw children with SDHs at least once a week. Dr. Ghatan also expressed his view that if ten radiologists were to be shown the same scan, they would come up with different reads regarding chronic SDHs. Dr. Stein agreed that it is "fairly common" for radiologists' opinions to differ, just as occurred here even among the Maimonides radiologists. Tr. 2/07/19, p. 53, lns. 2-9. Finally, it is highly significant that Dr. Stein admitted on the stand that he had made an error in his original readings of Brea's scans — an error that was first picked up and testified to by Dr. Ghatan. This error meant that the findings that Dr. Walker-Descartes based her list of differentials on was, at best, incomplete and, at worst, wrong. Dr. Stein himself acknowledged the impact of this error in his testimony when he stated, if someone "drew their final decisions based on the assumptions that there was no blood clot, they would be drawing an inappropriate conclusion." Tr. 2/07/19, pp. 49-50, lns, 25, 1-2. It is also striking that Dr. Stein testified he was unaware that Dr. Walker-Descartes had diagnosed Brea with abusive head trauma prior to being called to testify.

These factors, coupled with Dr. Ghatan's credentials and years of medical training and expertise in diagnosing infants with brain symptoms, all cause the Court to place greater weight on Dr. Ghatan's expert opinion. See also Matter of Kevin C., 11/8/17, p. 8 (Kings Cnty. Fam Ct., Pitchal, J.) (pediatric neurologist is "far more qualified to opine about disease or dysfunction within a child's brain than either Dr. Stein or Dr. Walker-Descartes.").

ACS's sole argument for undercutting Dr. Ghatan's credibility on summation was the claim that he was "too busy" to review Brea's birth records and reach out directly to the Maimonides doctors to discuss his findings. However, Dr. Ghatan, unlike Dr. Stein DID review the entirety of Brea's medical records from the two hospitals that treated her for this condition. No doubt all three of these doctors are extremely busy; given that, it is significant that Dr. Ghatan felt strongly enough about his diagnosis in this case to take the time out to testify on Mr. E.'s behalf on two separate dates without compensation. In actuality, it is more likely that Dr. Stein's busy schedule negatively affected the accuracy of his original conclusions in this case as he first reviewed Brea's film in the context of a very full work day where he testified that he typically views 50 patients scans over the course of his 10-hour day. The Court does not in any way fault Dr. Stein for his error as even the most talented and experienced professionals make mistakes.⁴ But the Court, and Mr. E., are now fortunate to have the considered expert opinion that Dr Ghatan was able to give when asked to review these scans without the same time pressure.⁵

4 In response to being asked if he believed "reviewing records and images after the fact not treating a patient makes it easier to assess or come up with the diagnosis," Dr. Ghatan answered: "Most definitely there can be missed details when you're in the heat of the moment taking care of somebody. When you are in the comfort of your living room, looking at images and studying them with the fine toothcomb, you can pick up things that weren't necessarily seen." Tr. 1/31/19, p. 84, lns. 15-22.

5 Dr. Ghatan testified that out of approximately 96-120 images in just one of Brea's scans, only 2-3 showed the venous thrombosis which, according to the doctor, could make the finding easy to miss especially if a radiologist were focused on looking for a SDH as opposed to a clot. Tr. 1/31/19, p. 79, lns. 5-9; p. 85, lns. 19-21.

Dr. Ghatan's diagnosis is also consistent with the version of events provided by Mr. E., who the Court found to be extremely credible in his description of a sudden and unexplained change to Brea's condition in the middle of an otherwise routine day of parenting. Mr. E. presented to the Court as a devoted and loving father who clearly reveled in the joy of being a new father. The Court was struck by his gentle demeanor on the stand and his openness about his dedication to caring for and nurturing his daughter. His account of his morning with Brea on October 26th contained no red flags for this Court; to the contrary, he demonstrated a degree of easy calmness and competence in his parenting which was no doubt fostered by the fact that Brea, at 5 months, was a happy baby who was past some of the most challenging phases of early infancy. Additionally, it is notable to the Court that Mr. E. did not act in any way that would raise suspicion that he caused Brea's condition. Mr. E. immediately responded to Brea's sudden medical emergency by calling his wife, followed by two calls to 911 where the Court had the opportunity to hear first hand his voice and demeanor — Mr. E. sounded genuinely and truly shocked and panicked by Brea's sudden and serious change in condition and was desperately seeking guidance from the 911 operator as to how to help his daughter while he waited for what felt, even to this Court, like an eternity for the ambulance to arrive. Mr. E. gave entirely consistent accounts to the 911 operator, EMS workers, doctors from both hospitals, social workers police, and the ACS caseworker. Perhaps this consistency is the explanation for Petitioner's unusual decision not to cross-examine Mr. E. when he took the stand. Mr. E. was also completely cooperative with all requests for interviews and all medical recommendations even after he was put on notice that he was being investigated for child abuse and remained in the hospital every night for the 3 weeks Brea was there. There is absolutely nothing in the evidence that remotely suggests that Mr. E. could have been driven to vigorously shake Brea enough to cause these injuries and, given the evidence at this hearing, the Court does not believe that occurred. See In re Tyler S., 103 AD3d at 733-34.⁶

6 In Tyler S., the Second Department, reversing the Family Court's abuse finding, found that the Respondent's expert put forth another explanation for how the child's injuries occurred and that "[n]o other evidence was presented to support the allegation of abuse" and that the record reflect[ed], and it was undisputed, that the mother was a concerned parent who cared for her child. She was forthcoming and cooperative with the medical professionals attending her child as well as the petitioner's caseworkers. Witnesses testified that the mother was a loving and caring parent and she had no other history with child protective agencies."

Nicholson requires this Court to "weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim." Nicholson v Scoppetta, 3 NY3d 357, 378-9 [2004].

Thus, the Court must consider whether any orders can be put in place to eliminate any risk that might exist and allow Mr. E. to live with Brea again and be reunited as a family. While the Court has concluded, based on the evidence presented at this hearing, that Mr. E. is not responsible for Brea's sudden medical emergency on October 26th, this Court also believes that close supervision by ACS and over-sight by this Court will further insure Brea's safety with her father in the home. This Court is convinced that Mr. E. will continue to obey court orders, including those precluding the use of any physical punishment, allowing weekly ACS announced and unannounced home visits and complying with any other recommended services. These orders are sufficient under Nicholson to mitigate any risk of returning Brea that might exist.

Thus, for the reasons above, the Respondent father's application pursuant to Family Court Act § 1028 is granted. Additionally, given the Court's findings, there is no reason to continue to require that the Respondent mother be supervised at all times with Brea. The medical and other evidence is even more clear that Ms. J. was not responsible for Brea's condition on October 26th and she has been fully compliant with all of this Court's orders including ACS supervision since that date. It is in Brea's best interests to be able to resume maternal bonding unfettered by supervision to best promote her future emotional well-being.⁷

7 Separations as brief as a week have been shown to negatively impact the mother-child relationship. Kimberly Howard, et. al., Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, Attach Hum Dev. 2011 January; 13(1), 1. "Short-term disruptions can result in negative socio-emotional outcomes such as aggression and negativity." Id. at, 10. In short, disruptions in the mother-child relationship can have many negative consequences for a child, some of which can last to adulthood and the "physical accessibility" of the mother has significant implications for positive child development. Id. at 13. See also Mokhtar Malekpour, Effects of Attachment on Early and Later Development, The British Journal of Development Disabilities, Vol. 53, Part 2, July 2007, No. 105, pp. 81-95.

The Court hereby orders that the subject child Brea is released back to the legal care and custody of BOTH of her parents under the following conditions:

Both parents are to cooperate with ACS supervision including weekly announced or unannounced home visits.

Both parents are to comply with preventive services in the home and follow any recommendations.

Both parents are to ensure that Brea is brought for all medical appointments.

Both parents are not to use any corporal punishment on the subject child.

Dated: February 22, 2019

ENTER

________________________________________

Hon. Jacqueline B. Deane