Opinion
NA–1433–4/16
11-09-2017
In the MATTER OF KEVIN C. and Chongxia C., Children under Eighteen Years of Age Alleged to be Abused and Neglected by Xuehau C., Respondent.
Alan Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, 330 Jay St., 12th Floor, Brooklyn, NY 11201 By: Alet Brown, Esq., Wendy Cheng, Esq., Emma Alpert, Esq., Brooklyn Defender Services, Family Defense Practice, 195 Montague St., 5th Floor, Brooklyn, NY 11201 and William D. Pollak, Esq., Davis, Polk & Wardwell LLP 450 Lexington Ave., New York, NY 10017, Counsel for Xuehau C. Helen M. Dukhan, Esq., 26 Court St., Suite 2511, Brooklyn, NY 11242, Counsel for Xuejin C. Julia Elmaleh–Sachs, Esq., Legal Aid Society, Juvenile Rights Practice, 111 Livingston St., 8th Floor, Brooklyn, NY 11201, Attorney for the Child Chongxia Philip Skittone, Esq., 26 Court St., Suite 1406, Brooklyn, NY 11242, Attorney for the Child Kevin
Alan Sputz, Esq., Special Assistant Corporation Counsel, Administration for Children's Services, Family Court Legal Services, 330 Jay St., 12th Floor, Brooklyn, NY 11201 By: Alet Brown, Esq., Wendy Cheng, Esq., Emma Alpert, Esq., Brooklyn Defender Services, Family Defense Practice, 195 Montague St., 5th Floor, Brooklyn, NY 11201 and William D. Pollak, Esq., Davis, Polk & Wardwell LLP 450 Lexington Ave., New York, NY 10017, Counsel for Xuehau C.
Helen M. Dukhan, Esq., 26 Court St., Suite 2511, Brooklyn, NY 11242, Counsel for Xuejin C.
Julia Elmaleh–Sachs, Esq., Legal Aid Society, Juvenile Rights Practice, 111 Livingston St., 8th Floor, Brooklyn, NY 11201, Attorney for the Child Chongxia
Philip Skittone, Esq., 26 Court St., Suite 1406, Brooklyn, NY 11242, Attorney for the Child Kevin
Erik S. Pitchal, J.
By petitions dated May 4, 2016, petitioner ACS alleges that respondent Xuehau C. abused her son Kevin, who was three-months-old at the time, and derivatively abused her son Chongxia, who was 14 at the time. The gravamen of the petition is that while in his mother's exclusive care, Kevin experienced seizures, a subdural hematoma, and retinal hemorrhages, which are alleged to be consistent with inflicted head trauma, and that Ms. C. had no plausible, non-abusive explanation for these findings. The boys' father, Mr. Xuejin C., was not named as a respondent; even though he shared a residence with his wife and children, he was working out-of-state during the relevant pre-petition time period. Initially, both Kevin and Chongxia were removed from their parents' custody, but in approximately August 2016, Mr. C. returned to New York City full-time, Ms. C. left to work in another state, and the parties consented for Chongxia to be released to his father. Subsequently, in approximately March 2017, Ms. C. and Mr. C. again reversed roles, with Ms. C. returning to the family home in New York and Mr. C. relocating to North Carolina to work; all parties consented to what was now a pre-trial release of Chongxia to his mother. Kevin stayed in non-kinship foster care, where, as of today's date, he remains.
The matter was referred to the undersigned on May 16, 2017, for a consolidated fact-finding hearing on the petitions and a § 1028 hearing as to Kevin. See Matter of Kristina R., 21 AD3d 560 (2d Dep't. 2005). Mr. C. joined Ms. C. in the § 1028 portion of the hearing. The consolidated hearing was held on May 16, June 13, July 10, August 14, September 12, October 2, 10, and 17; and November 2 and 8, 2017. The record at fact-finding consisted of the testimony of Dr. Ingrid Walker–escartes, Dr. Joseph Scheller, Dr. Evan Stein, CPS Tavona Watts, and Ms. C., as well as Petitioner's Exhibits 1–3 and 5–6 and Respondent's Exhibits A and B. For the § 1028 portion of the hearing, the Court incorporated the entirety of the fact-finding hearing and also considered additional portions of Ms. C.'s testimony which would be considered inadmissible for fact-finding, as well as the credible testimony of Ryo Cheng and Charmaine Gavay, Petitioner's Exhibit 4, and Respondent's Exhibits C–J.
For the reasons that follow, the Court finds that Petitioner has failed to establish the allegations in the petition by a preponderance of the evidence, and for that reason both dismisses the petition and grants the § 1028 application.
Fact Finding
This is a physical abuse case that sounds in res ipsa loquitur and is governed by Family Court Act § 1046(a)(ii) and Matter of Philip M., 82 NY2d 238 (1993). The Court finds that through the credible testimony of Dr. Walker–Descartes and Kevin's medical records, ACS established a prima facie case that Kevin suffered injuries that ordinarily would be absent but-for the actions of his sole adult caretaker at the time, his mother. Dr. Walker–Descartes, who was qualified as an expert in pediatrics and child abuse pediatrics, testified credibly that Kevin presented at Maimonides Hospital on April 25, 2016, hospital with seizures and was admitted to the pediatric intensive care unit. Imaging of his brain revealed a subdural hematoma ("SDH") on right side of his brain and an ophthalmologic exam showed retinal hemorrhages ("RH") in his right eye. X-rays were negative for any fractures anywhere in his body, there was no sign of external bruising, and an abdominal ultrasound was negative for any other internal trauma. Dr. Walker–Descartes was called to consult on his case on May 3. As a child abuse pediatrician who leads the child abuse team at Maimonides, she identifies possible non-abusive explanations for a patient's medical presentation and coordinates the testing necessary to conduct the differential diagnosis. In doing so, she relies on the testing and evaluations done by, and findings reported by, various specialists, including radiologists, hematologists, and ophthalmologists, to develop a pediatric patient's ultimate diagnosis when abuse is suspected.
Dr. Walker–Descartes noted that Ms. C. claimed that she was home with Kevin on April 25 when his eyes rolled up and his arms started shaking. She brought him to the pediatrician, who observed seizures and sent the family to a nearby neurologist. The neurologist also observed the child seizing and called for an ambulance. Ms. C. told Dr. Walker–Descartes that she did not know what caused his symptoms; Ms. C. later testified credibly to the same story, and there was nothing unusual in the child's birth or pediatric medical history. The pediatrician told ACS that he had no concerns, prior to this incident, with Ms. C.'s parenting. In her report to the hospital at admission and in her testimony, Ms. C. stated that while at home on April 25, she noticed that Kevin had a slight fever. The pediatrician also noticed the fever, as did hospital staff.
Dr. Walker–Descartes testified that when a child of Kevin's age presents with seizures, SDH, and RH, a number of possibilities must be investigated in order to determine the cause and proper course of treatment. For Kevin, this differential diagnosis initially included stroke, metabolic disorder, infection, bleeding disorder, or shaken baby. Dr. Walker–Descartes testified as to how, one by one, each possibility other than shaken baby was ruled out.
Dr. Walker–Descartes testified that initially the treatment team thought that stroke was a possibility because the CT scan showed that Kevin's brain was so swollen that the right side was pushing over onto the left side, a presentation consistent with stroke. A heart murmur also contributed to the stroke hypothesis, as did the "watershed" pattern of the SDH. An evaluation of his blood vessels was thus ordered and completed. This testing, which included a venogram ("MRV"), revealed that his blood vessels were clear and that there were no clots. The heart murmur was deemed innocent, and stroke was ruled out.
Dr. Walker–Descartes testified that a metabolic condition was ruled out because Kevin tested negative on his state-mandated newborn screen for the most common ones, most symptoms begin to emerge within the first month of life, his skeletal survey was negative for any evidence of metabolic problems, and most metabolic conditions do not cause RH. Moreover, metabolic conditions usually cause symptoms bilaterally, and Kevin's SDH was only on the right side.
Dr. Walker–Descartes testified that a bleeding disorder was ruled out because Kevin had never experienced any bleeding problems prior to this incident, nor other bleeds from this incident. Moreover, based on tests that were completed later, after he had turned six months old and his liver was fully mature, there were no problems with his body's clotting factors.
Dr. Walker–Descartes testified that an infection was ruled out based on the negative results of a spinal tap and blood tests for the most common viral infections, and the antibiotic treatment that had commenced as a precautionary measure in the ER was terminated. Even though she did not order tests for the various viruses that cause encephalitis, Dr. Walker–Descartes ruled encephalitis out as a cause for Kevin's condition because based on her experience and familiarity with the medical literature, encephalitis does not usually cause SDH and RH, though it can cause irritation in the brain and seizures and elevated liver enzymes.
Every other possible explanation being eliminated, Dr. Walker–Descartes was left with the "diagnosis by exclusion" of inflicted head trauma, to a reasonable degree of medical certainty. In her explanation, the acceleration/deceleration forces on the brain and eye attendant to shaking a baby with weak neck muscles can cause shearing of the blood vessels under the dura of the brain and in the back of the eye, leading to leaking from each and the telltale SDH and RH; in her expert opinion, that is what happened to Kevin. She further opined that his seizures resulted from the SDH; the blood leaking out of his subdural vessels irritated his brain and caused random neuron firing.
To counter Petitioner's prima facie case, Ms. C. presented the testimony of Dr. Scheller, who was qualified as an expert in pediatric neurology and neuro-imaging and who presented a credible explanation for how Kevin may have experienced his injuries naturally and unrelated to the actions or omissions of his mother. Philip M., 82 NY2d at 244. In brief, having reviewed Kevin's entire chart from Maimonides, as well as the child's pediatric chart and Dr. Walker–Descartes's testimony, Dr. Scheller testified to a reasonable degree of medical certainty that in fact Kevin did suffer a stroke, which caused the seizures, the SDH, and the RH. Having seen the stroke clearly on the MRV, Dr. Scheller had no hesitation in offering his conclusion. He said the radiologist at Maimonides simply missed it, and Dr. Walker–Descartes relied on the radiologist's erroneous report to incorrectly rule out stroke on the differential diagnosis. As Dr. Walker–Descartes noted in her own testimony, if the radiologist had told her that Kevin had a blood clot, it would have changed his treatment—an anti-coagulant medication would have been given—and the disposition of his case.
Dr. Scheller credibly explained that stroke —an obstruction of a blood vessel in the brain—is a well-known cause of seizures in infants and well-known to cause one-sided SDH. More importantly, he could actually see the obstruction on Kevin's MRV, which he demonstrated, compellingly, during his testimony, using Respondent's Exhibit B. He explained that when there is a clot in the delicate venous system in the brain, there is backflow and pressure. The pressure causes some of the veins on the dura to leak blood onto the brain's surface, resulting in the SDH; that blood irritated the brain, causing the inflammation in the brain, which eventually led to Kevin's seizures.
Dr. Scheller also credibly explained that Kevin's stroke caused his RH. In utero, the eye develops as an outpouching of the brain; it eventually moves away, but it stays connected to the brain through nerves and blood vessels, and brain circulation is intimately tied to eye circulation. As a neurologist, Dr. Scheller was able to convincingly state that brain disease is often expressed in the eyes, and for that reason, neurologists are trained to do retinal exams and in fact do so on every patient. He has diagnosed RH many times in children. Anything that affects bleeding, circulation, or pressure in the brain can lead to RH because of the close circulatory connection between the brain and the eyes—notably, a stroke. Eye veins drain de-oxygenated blood through the brain on its way back to the heart. Veins in the eye are quite fragile and can leak easily, leading to RH. If there is an occlusion in the brain's venous system, it will back up the pressure upstream in the eye, causing the retinal veins to leak. Kevin's right eye was not traumatized; "it was an innocent bystander in a circulation problem going on inside his brain a few inches away."
In his testimony, Dr. Scheller—qualified as an expert in neuro-imaging—walked through his review of the various images taken of Kevin's brain while at Maimonides. He demonstrated how the coronal view of the CT scan, taken on April 25, 2016, shows that the left hemisphere of Kevin's brain was normal, but there was swelling on the right side behind the ear and a fresh blood clot between the brain and the inside of the skull, an acute SDH. In order to determine why there was swelling on only one side of Kevin's brain, Dr. Scheller made use of the sagittal view of the CT scan images, where he noticed a blood clot almost directly behind the right eye. On the axial view, he pointed out the same spot in the same location, strongly suggesting the existence of a venous stroke.
To confirm his hypothesis, Dr. Scheller made use of the MRI of Kevin's brain, which was taken one day after the CT. On the sagittal view, the right-side SDH was much more clear than in the CT. The axial view showed the acute SDH covering almost the entire right hemisphere, with no such bleeding on the left side, as well as the corresponding clot behind the eye. Dr. Scheller testified compellingly that the de-oxygenated blood in Kevin's brain was trying to drain through a vein towards the back of his right hemisphere but was blocked by a clot there, causing leakage in that area, the SDH. An elevated D-dimer test was further confirmation that there was something going on with Kevin's clotting.
Finally, Dr. Scheller made use of the venogram that had been done at Maimonides. The hospital staff had interpreted it as being normal, but Dr. Scheller pointed out how the transverse sinus on the right side looked thin and less well than that on the left. Moreover, the venogram, which is designed to show blood moving through the veins, showed far less activity on the right side of Kevin's brain than on the left, consistent with the blood clot seen on the other images. Overall, Dr. Scheller was "100%" sure that Kevin had a stroke. While it was not initially an easy case—he had to spend a lot of time looking carefully at all the imaging, looking for some explanation of the localized injury—once he found it, it was "cut and dried." Kevin's brain compromise was very localized to the back right part of the brain, and there was a blood clot adjacent to that area, in the vein that receives blood from the back right part of the brain. In his view, the Maimonides radiologist simply missed it. The venogram report does not address the cortical veins, which is where Dr. Scheller believes the stroke occurred.
In terms of what caused Kevin's stroke, Dr. Scheller noted that it is often not possible to determine why an infant suffered a stroke. He stated that approximately one-third of such cases are caused by a clotting problem; one-third are caused by an infection; and one-third have an unknown cause. He noted that Kevin's protein C levels suggested some possible risk for blood clotting, and his elevated D-dimer level was also consistent with the existence of a blood clot. His fever and elevated liver enzymes suggested a possible infectious cause. Without a full panel of blood tests for the various viruses that are known to increase blood clotting, and without test results for certain clotting factors such as protein S, he could not opine with certainty about what caused Kevin's stroke. But given what he saw on the imaging, the lack of external injury or fractures, and the very localized injury, he was quite certain that the stroke caused the seizures, the SDH, and the RH, and that something non-traumatic caused the stroke.
The Court is also persuaded by testimony regarding the somewhat limited nature of the RH in this case. Dr. Walker–Descartes conceded on cross-examination that the ophthalmologist found that Kevin's RH were restricted to the posterior pole, whereas the authoritative medical literature holds that abuse is more typically associated with multi-layered RH, a concept that was also endorsed by Dr. Stein.
On rebuttal, Petitioner called Dr. Evan Stein, who was qualified as an expert in radiology and neuro-radiology and who was the Maimonides radiologist who read Kevin's scans in April 2016. Having gone back over those imaging studies, and having reviewed Dr. Scheller's testimony, Dr. Stein testified that in his opinion, unlike Dr. Scheller's, it could not be stated within a reasonable degree of medical certainty that Kevin had a stroke. The reason, he explained, was that area identified by Dr. Scheller as a clot was too small to cause the extensive cerebral damage that he saw. Dr. Stein thought the spot asserted by Dr. Scheller to be a venous clot was more likely a subarachnoid hemorrhage or blood flowing slowly through a vein due to the pressure of nearby cerebral swelling. Moreover, Dr. Stein attributed the asymmetry of blood flow through the transverse sinuses to a congenital condition—he postulated that Kevin was born with a smaller right-side transverse sinus—as opposed to a stroke on the right side. Though Dr. Stein could not rule out, to a reasonable degree of medical certainty, that Kevin did have a venous thrombosis —and he acknowledged that an obstruction present on April 25 may have decreased by the time of the MRV on April 29—he thought the clot was more likely an effect of the SDH rather than its cause.
Given the sharply divergent opinions of the parties' respective expert witnesses, it falls to the Court to resolve the discrepancies. See, e.g., Matter of Isaac C., 54 Misc 3d 710 (NY Co. Fam. Ct. 2016). The burden remains on Petitioner to prove its case by a preponderance of the evidence. Philip M., 82 NY2d at 243–44 ; Matter of Tyler S., 103 AD3d 731 (2d Dep't. 2013) ; Matter of Alanie H., 69 AD3d 722 (2d Dep't. 2010). None of the doctors is a zealot or an advocate for a cause. Each agreed that nothing is impossible in medicine—there are always outliers—but each spoke based on his or her understanding of the majority of cases and what is most likely in a given scenario. Dr. Walker–Descartes was nuanced and fair, and testified credibly about the methodical approach to differential diagnosis in her field. Dr. Scheller conceded that there have been confirmed cases of shaken baby without any external injuries, but he hastened to add that the fewer signs of trauma there are, the harder it is to make a diagnosis of abuse. Dr. Stein took a fresh look at Kevin's scans after a peer, Dr. Scheller, questioned the accuracy of his findings, and testified in a matter-of-fact, non-defensive manner.
Much of neuro-radiology is objective and grounded in science, but as Dr. Stein noted in his testimony, it is fairly common to have varying interpretations of the same scans by different doctors; here, the issue of causation (whether a clot caused SDH or vice versa) is a matter of opinion, not medical certainty. Cf. Matter of Isaac, 54 Misc 3d at 733 ("highly experienced radiologists may issue greatly varying findings from the same set of radiographs"). Dr. Stein asserted that if Kevin had a blood clot, it was not large enough to cause the significant area of brain damage, and so any clot would have been caused by the other clinical findings; in contrast, Dr. Scheller, who was also qualified as an expert in neuro-imaging, asserted that Kevin's SDH was not large enough to have caused a clot, so it was the clot that caused the SDH.
From Dr. Scheller's perspective, as a neurologist, it is understood that specific conditions cause specific problems; for example, encephalitis, stroke, impact trauma, and brain tumors each look a specific way. He finds it "too convenient" to say, as Dr. Walker-Descartes alluded, that the signs of abusive head trauma can "look any way you want. It makes no sense neurologically." This critique is especially well-placed where, as here, it appears that certain possibilities on the differential diagnosis were ruled out prematurely. For example, Dr. Walker–Descartes did not order a full viral panel covering various encephalitis strains. She claimed that Kevin's clinical presentation did not warrant such testing, but the Court credits the neurologist's testimony (see infra at 8), which was credible and convincing, that encephalitis is in fact known to cause the constellation of problems Kevin had. Even Dr. Stein was surprised to learn that an encephalitis panel was not done in this case. Thus, infection was not fully considered. Additionally, stroke was not fully explored before Dr. Walker–Descartes excluded it as a possible explanation for Kevin's injuries. Dr. Stein never ordered a CT-venogram even though he conceded that clots that are not visible on MRVs can be visible on CT-venograms, and that if a peer had contemporaneously questioned his finding that Kevin did not have a clot based on the MRV, he would have ordered a CT-venogram.
The three medical experts were all asked to opine as to the unilaterality of the findings in Kevin's case—the fact that his SDH and RH were only on the right side. Dr. Walker–Descartes could not offer a theory for how Kevin could have sustained these one-sided injuries that was consistent with her overall diagnosis of non-accidental, inflicted head trauma, given the lack of fractures or external injuries, other than to say that "forces translate in different ways." Dr. Stein made no conclusion about the etiology of the unilateral findings, and he noted that the unilaterality is compatible with a finding of stroke. Dr. Scheller conceded that while anything is possible in medicine, it seems unlikely that a violent shaking would cause injury to just one side of the brain. He learned nothing about Kevin's brain, in particular, that would lead him to believe that one side would be impervious to violent shaking.
Forced to resolve the disagreement between eminently qualified experts, each of whom testified knowledgeably and credibly, the Court finds Dr. Scheller to be the most persuasive, because he has 30 years of experience as a pediatric neurologist, the exact sub-specialty at issue in this case. Matter of Isaac, 54 Misc 3d at 735–36 (dismissing petition after ACS failed to call an endocrinologist on rebuttal to counter respondent's persuasive endocrinology expert). Even if a prima facie case is established, Family Court is not compelled to make a finding of abuse and is entitled to credit one expert over another. Matter of Brandyn P., 278 AD2d 533 (3d Dep't. 2000) ; Matter of Anthony Y.Y., 202 AD2d 740 (3d Dep't. 1994) ; Matter of Christine F., 127 AD2d 990 (4th Dep't. 1987). While Dr. Stein is a skilled radiologist with expertise in neuro-radiology, Dr. Scheller is also qualified to render expert opinions about CT, MRI, and MRV images of brains; moreover, Dr. Scheller is also far more qualified to opine about disease or dysfunction within a child's brain than either Dr. Stein or Dr. Walker–Descartes.
Additionally, Dr. Stein's own testimony allowed for the distinct possibility that Kevin did have a venous clot, when taking into account the full picture: no clinical sign of trauma; fever; elevated liver enzymes; unilateral RH; and abnormal hematology results. Dr. Stein was not able to offer conclusions within a reasonable degree of medical certainty: he could not say that non-accidental trauma was the but-for cause of Kevin's SDH, RH, and brain swelling, nor could he rule out infection as the but-for cause; he noted that the role of ultimate diagnostician in this case fell to Dr. Walker–Descartes. Thus, with the ultimate burden of persuasion resting with Petitioner, and Petitioner having no pediatric neurologist to answer Dr. Scheller's testimony, the Court concludes that Petitioner has failed to meet its burden here to prove that Ms. C. abused Kevin.
Given the voluminous medical evidence in this case and the involvement of multiple skilled and experienced medical professionals, and given that it took an expert from another jurisdiction, spending hours pouring over technical medical scans, to come up with a plausible, non-abusive explanation for what happened to Kevin, it is no wonder that his mother was unable, herself, to provide a reasonable explanation for her baby's clinical presentation that day in April 2016. At the time, ACS took her inconsistent statements, as testified to by Ms. Watts, as evidence of wrongdoing. There is also the possibility that due to a language barrier, educational deficits, and/or cognitive limitations, Ms. C. was not able to adequately express herself. Regardless, given the Court's findings about the medical evidence, Ms. C.'s statements to ACS in the early days of the case carry little persuasive value.
In light of the Court's finding that ACS has not met its burden as to Kevin, the derivative claim as to Chongxia must necessarily be dismissed. Even if the Court did make a finding that Ms. C. shook her three-month-old and caused his various brain and eye injuries, there was no evidence presented at this trial that would lead the Court to find as a matter of law that her 14–year–old would be at imminent danger of being abused or neglected as defined by the statute. § 1028 Determination
A dismissal pursuant to § 1051(c) is not available in an abuse case, but if it were, the Court would find based on the entire record (including the facts developed in the § 1028 portion of the hearing) that the aid of the Court is not required to protect Chongxia.
Because the Court has dismissed the petition, it no longer has jurisdiction over the children and therefore all prior court orders, including the order dated May 4, 2016, by which Kevin had been remanded to ACS custody, are automatically vacated; thus the § 1028 application must be considered moot. But see Matter of Jamie J., 145 AD3d 127 (4th Dep't. 2016) ; appeal pending APL–2016–00233 (argued Oct. 17, 2017).
To the extent the § 1028 application still presents a justiciable question, the application is granted based on the same analysis regarding fact-finding set forth above. Petitioner's theory of imminent risk to Kevin is predicated on an assumption that Ms. C. inflicted trauma on his brain, presumably by shaking him. As explained above, after a fully litigated hearing, the Court finds that Petitioner has failed to establish this predicate by a preponderance of the evidence. If Ms. C. did not engage in abusive or neglectful parenting behavior towards her child in the past, then there is no basis to think that the child would be at imminent risk of harm to be returned once more to her care.
Moreover, the record at the § 1028 portion of the hearing reveals that Ms. C. has been visiting Kevin regularly. By all accounts, the visits are positive and enjoyed by mother and child. Kevin has significant developmental delays, and he receives occupational therapy weekly during one of the visits, and Ms. C. has learned how to work with him and reinforce the skills he is developing in the therapy sessions. While he did not recognize her when she first returned to New York in March 2017, after they re-established their relationship, he responds to her positively and the agency has supported an expansion of visits because she cares well for him under supervision. She has completed a CPR class, aided by an interpreter in her primary language, and is now able to navigate the subway system successfully to attend Kevin's appointments. Ms. C. has been cooperative with ACS and agency supervision from the outset of the case (though obviously was not involved during the seven months when she was working out of state), and is regularly attending and benefiting from individual counseling. The child was well cared for prior to the April 2016 incident; his pediatrician noted several visits for colds and the like and did not observe any maltreatment. Finally, Chongxia has been home with his mother for many months without incident or cause for concern, suggesting her present ability to properly and uneventfully parent.
Noting the evidence in the record that before his removal from her care, Kevin slept in a bed with Ms. C., the Court would be remiss not to indicate its deep concern with this literal form of co-sleeping. If the Court were to release the child to Ms. C. with ongoing supervision, it would be with an accompanying order requiring her to place the child in a crib, co-sleeper, or play yard approved by the Consumer Product Safety Commission for sleeping for a child of his age.
Even if the Court were to make a finding of abuse, all of these factors nevertheless support a conclusion that Kevin would not be at imminent risk to be returned to his mother. This is true even if she has not acknowledged abusing him. See Philip M., 82 NY2d at 243 (affirming order releasing children to respondents despite their denial of having caused their abuse); see also Matter of Aniyah F., 13 AD3d 529 (2d Dep't. 2004) (reversing dismissal of abuse charge but letting stand Family Court dispositional order of release); Matter of Maria S., 43 Misc 3d 1218(A), 2014 NY Slip. Op. 50690(U) at *34–*35 (Kings Co. Fam. Ct. 2014) (collecting like cases).
The Court finds that the difficulty and frustrations involved with Ms. C.'s testimony are more likely due to a language barrier and/or her lack of education (she had less than three years of formal schooling). The Court disagrees with the characterization of Kevin's attorney, offered in his summation, that Ms. C.'s testimony revealed a lack of empathy. To the contrary, the Court observed Ms. C.'s demeanor throughout many appearances on this case (including many pre-trial conferences), both on and off the witness stand, and finds that she displayed an appropriate level of care, concern, and pain for the child's predicament.
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Conclusion and Order
For the foregoing reasons, IT IS HEREBY ORDERED THAT:
1) The petition as to Kevin (docket NA–11434/16) is dismissed with prejudice.
a. All prior orders and future court dates are hereby vacated.
b. The permanency hearing is deemed moot.
c. In order to facilitate the transition of the child, who has been in foster care for 18 months, and to afford parties the opportunity to review this Decision and Order and pursue appellate relief, Petitioner is directed to return the child Kevin to his parent(s) no later than 5pm on Wednesday, November 22, 2017. Pending the return of the child, Ms. C. shall have unsupervised visits, with agency discretion to include overnights.
d. In the event enforcement of this paragraph 1 is stayed by the Appellate Division, the parties are directed to appear before the undersigned in Part 20 on December 5, 2017, at 2:30pm time certain for a permanency hearing.
2) The parents' application for return of the child Kevin pursuant to § 1028 is granted, and the remand order dated May 4, 2016, is hereby vacated.
a. In order to facilitate the transition of the child, who has been in foster care for 18 months, and to afford parties the opportunity to review this Decision and Order and pursue appellate relief, Petitioner is directed to return the child Kevin to his parent(s) no later than 5pm on Wednesday, November 22, 2017. Pending the return of the child, Ms. C. shall have unsupervised visits, with agency discretion to include overnights.
b. In the event enforcement of this paragraph 2 is stayed by the Appellate Division, the parties are directed to appear before the undersigned in Part 20 on December 5, 2017, at 2:30pm time certain for a permanency hearing.
3) The petition as to Chongxia (docket NA–11433/16) is dismissed with prejudice.
a. All prior orders and future court dates are hereby vacated.
b. In the event enforcement of this paragraph 3 is stayed by the Appellate Division, the parties are directed to appear before the undersigned in Part 20 on December 5, 2017, at 2:30pm time certain for a status conference.