Opinion
NA-XXXX-16
02-23-2017
In the Matter of Rihana J.H. A Child under Eighteen Years of Age Alleged to be Abused by Quiana J., Keith M., Respondents.
Sharisse Campbell Administration for Children's Services 330 Jay Street, 12th Floor Brooklyn, New York 11201 Counsel for the Petitioner Emma Alpert Brooklyn Defender Services, Family Defense Practice 180 Livingston Street, Suite 300 Brooklyn, New York 11201 Counsel for the Respondent Maria Roumiantseva Legal Aid Society 111 Livingston Street, 8th Floor Brooklyn, New York 11201 Attorney for the Children
Sharisse Campbell Administration for Children's Services 330 Jay Street, 12th Floor Brooklyn, New York 11201 Counsel for the Petitioner Emma Alpert Brooklyn Defender Services, Family Defense Practice 180 Livingston Street, Suite 300 Brooklyn, New York 11201 Counsel for the Respondent Maria Roumiantseva Legal Aid Society 111 Livingston Street, 8th Floor Brooklyn, New York 11201 Attorney for the Children Jacqueline B. Deane, J.
This Court held a hearing pursuant to Family Court Act § 1028 on this abuse petition which involves allegations of injuries to the head of the then six-week old infant subject child Kaden which he received while in the care of his parents, the Respondents. Kaden, who is now one-year-old, is not the subject of this hearing. The application in front of this Court at this time, and the subject of this hearing, is the Respondent mother's request that the Court return her now nine-year-old daughter Rihana to her care and custody.
The Respondent mother has made it clear she wants Kaden returned to her as well but there is a Criminal Supreme Court order of protection in effect which prohibits contact between them except for that which is supervised by ACS.
The Administration for Children's Services ("ACS" or "Petitioner") filed this petition on January 28, 2016, and sought removal of both subject children after a doctor at Weil Cornell Hospital determined that Kaden's injury was not consistent with his mother's explanation for how it occurred. As a result of that diagnosis, Ms. J. was also arrested and charged criminally for the same incident. Rihana was initially released to her non-respondent father, Mr. Hayes, with whom she had previously had only regular weekend visitation. By the end of March, Rihana's emotional state had deteriorated as a result of the two-month separation from her mother to the point where her school work and behavior were affected and she had told a teacher she wanted to die if she wasn't returned to her mother and brother. On April 8, 2016 all parties consented to Rihana being remanded specifically to reside with her maternal grandmother who had been caring for her baby brother as a kinship foster parent since his release from the hospital. This change enabled Rihana to have more regular contact with her mother though that contact was curtailed by virtue of the Supreme Court order of protection limiting the mother's contact with Kaden to agency-supervised visits. Therefore, the mother cannot visit Rihana in the maternal grandmother's home if Kaden is present which, given his young age, essentially makes visits there impossible.
At the hearing, this Court heard the testimony of two case workers called by ACS, Ms. Tracy, the original ACS investigating child protective worker, and Ms. Shavanda, who was previously a supervisor at the foster care agency involved in the case. At the request of the Attorney for the Child ("AFC") and on the consent of ACS and the Respondent mother, the Court conducted a brief in camera interview with the subject child Rihana. The Respondent mother had been advised by her attorneys not to testify given the pending criminal charges. ACS and the Respondent introduced numerous exhibits into evidence which the Court has carefully reviewed. Finally, on consent of the Respondent mother, the Court ordered an "imminent risk assessment" by the Court Mental Health Clinic which was completed on February 15th and entered into evidence as the Court's Exhibit I, along with an updated agency report as Court's Exhibit II.
On consent of all counsel, the AFC was the sole attorney present for the interview but the Court allowed all counsel to submit proposed questions for the Court to ask the child and made the minutes of the interview available to all.
For this reason, as well as the numerous statements by the mother contained in the exhibits, the Court declines to exercise its discretion in drawing a negative inference from her decision not to testify.
The allegations in this petition, which are the sole basis for the removal of the child Rihana proffered by Petitioner's witnesses at this hearing, revolve entirely around then six-week-old Kaden's head injuries. The evidence established that the Respondent mother has consistently given the same explanation for those injuries to multiple people including the caseworkers, the detective and various medical providers at the two hospitals where Kaden was treated. This explanation was testified to by both caseworkers and is repeated throughout numerous exhibits. According to Ms. J., she was upstairs at the paternal grandmother's house preparing a bottle for Kaden while Kaden's father, the Respondent Mr. M., was downstairs. She described holding Kaden in one arm and making the bottle with the other when he "jerked" or "threw himself back" causing him to hit his head on the corner of the wall. See Respondent mother's Exhibit A, Progress Notes, p. 7. The mother noticed bleeding from the baby's head and immediately grabbed a towel and called Mr. M. into the room and they decided to take Kaden to the hospital. Id. The caseworker testified that the parents took a cab with Kaden in a snow storm to get to Kingsbridge Hospital. The caseworker observed a small laceration at the top of Kaden's head that was consistent with this description and no other marks or bruises. Id. at p.8. The testimony from Caseworker Tracy, as well as the ACS progress notes in evidence, establish that initially Kingsbrook doctors concluded that it was "highly probable" that Kaden's injury could have happened the way his mother's described. Id. at p. 9. However, Kingsbrook needed to transfer Kaden to Weil Cornell for a higher level of care than was available at Kingsbrook.
The Weil Cornell medical records submitted into evidence as Petitioner's Exhibit 3 document medical findings of bilateral retinal hemorrhages, bilateral subdural and subarachnoid hemorrhages, a skull laceration and a nondisplaced skull fracture which Dr. Gordon at Weil Cornell found was not consistent with the explanation given by Ms. J. and were consistent with the injuries seen from "non-accidental" or "abusive head trauma." Id. at pp. 264, 357.
The records document the treatment Kaden received throughout his two-week hospital stay as well as establish that Ms. J. was attentive to and appropriately worried about Kaden throughout his hospitalization, not wanting to leave the hospital and expressing concern about how to explain to Rihana what was happening to her brother. Caseworker Tracy testified about her observations of the mother hysterically crying in the hospital while saying that "she loved being a parent," that she had the "perfect set of kids," and that she "would never hurt either of her children." Ms. J. was cooperative with all ACS and medical personnel and there were no concerns documented in any of the exhibits about Ms. J.'s demeanor or behavior, even when she was questioned about the source of Kaden's injury. The ACS progress notes state that Kaden "appeared well-cared for" aside from his head injury. See Respondent's Exhibit A, supra.
The fact-finding hearing in this case will likely revolve around expert medical opinion as to whether the mother's account could sufficiently explain the injuries Kaden suffered. No medical experts were called to testify at this hearing but the Respondent introduced a letter from a bio-mechanical forensic engineer who specializes in injury reconstruction, particularly pediatric head injuries. Dr. Loyd's letter discusses his findings that Kaden's injuries could have been caused in the manner Ms. J. explained. See Respondent's Exhibits C1 and C2. The science of the causation of childhood head injuries of the type seen in this case has changed substantially in the past ten years. There is now significant scholarly debate and some consensus that these injuries were over-diagnosed as resulting from abuse. Even the names of the diagnoses, i.e. "abusive head trauma" and "shaken baby syndrome," have been criticized as essentially self-fulfilling prophecies. Rather than noting the objective injury observed separate from hypothesizing the cause, these "diagnoses" conflated the two distinct concepts into one. The history of this scientific debate as well as the benefits of this newer, more cautious approach are discussed in the scholarly articles submitted into evidence by the Respondent. See Respondent's Exhibits D and E. At a minimum, the experts agree that subdural hemorrhages and retinal hemorrhages "are not caused exclusively or almost exclusively by shaking or inflicted trauma" and that "impact, even on a padded surface, generates more force than shaking." Respondent's Exhibit E, p. 297-98. This change in scientific understanding of these types of injuries has also been noted by courts in reversals of convictions based upon the now outdated science. See e. g. People v Bailey, 144 AD3d 1562, 1564 [4th Dept 2016]. Clearly, as much harm can be done to children by misdiagnosing head trauma as being the result of abuse instead of accident as there is from the reverse scenario. Fortunately, Kaden appears to have not suffered any lasting impairment from his injuries and he has developed normally in the one year since. The seizures Kaden suffered in the hospital were managed through medication and have not re-occurred and his most recent eye exam was normal. See Respondent's Exhibit B and H.
The Court notes that the outcome of the fact finding on the abuse allegations will not necessarily be dispositive of whether the children should be released to the Respondent(s) or not. See Matter of Philip M., 82 NY2d 238, 243 [1993] ("Family Court found that petitioner had established injury to the children while under respondents' care and it had, therefore, established a prima facie case of child abuse under article 10 of the Family Court Act. It also found that respondents' explanation for the source of injuries failed to rebut petitioner's prima facie case. Accordingly, the court ordered the children released to respondents under CWA [Child Welfare Administration] supervision for 12 months, during which time the parents were to seek counseling with their children."); In re Matthew W., 125 AD3d 677, 678 [2d Dept 2015] (affirming Family Court order in abuse case alleging 10-month old abused after suffering subdural hematoma in parents' care and derivative abuse of 5-year-old sibling that Respondents be permitted to have overnight parental visits prior to fact-finding determination, and "thereafter, except for good cause, to temporarily release the subject children to the parents' custody."); see also In re Maria S., 43 Misc 3d 1218(A) [Fam Ct 2014, Wan, J.] (Family Court held consolidated 1028/fact-finding hearing, made abuse finding while granting 1028 application because "respondents ha[d] done everything that the agency ha[d] asked them to do and they ha[d] cooperated with every single court order. Their unsupervised visitation with the children ha[d] gone without incident or concern for over three months ").
Swedish Agency for Health Technology Assessment and Assesssment of Social Services, Traumatic shaking: The role of the triad in medical investigations of suspected traumatic shaking, Report 255E/2016 ("[T]he Agency's results as presented in the report can be summarized as follows: 'There is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking (very low quality evidence).' 'There is limited scientific evidence that the triad and therefore its components can be associated with traumatic shaking (low quality evidence).' 'The triad or its components can be attributable to causes other than shaking.'") (Respondent's Exhibit D), Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it right, K.A. Findley, P.D. Barnes, and W. Squier, co-authors. Hous. J. Health L. & Pol'y, no. 2 (2012): 209-312 (Respondent's Exhibit E).
The ACS caseworker made clear in her testimony that Kaden's injury is the only fact that is keeping ACS from returning Rihana to the mother. However, the Court does not believe it is necessary to resolve the question of how Kaden's injury occurred to address the legal issue at this 1028 hearing on behalf of Rihana. "Rather, [this Court must] engage[] in a fact-intensive inquiry to determine whether [Rihana's] physical or emotional health is at risk. In re DeAndre S., 92 AD3d 888 [2d Dept 2012].
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.
First and foremost, by all accounts, including the ACS case records in evidence, the testimony of the caseworkers, and the Court's own observations during the in camera, Rihana is a well-adjusted, healthy nine-year-old girl who, at the time this petition was filed one year ago, had never had any ACS involvement in her life nor raised any concerns about her mother's care. The evidence established that Ms. J. has addressed all of Rihana's medical, mental health, educational and emotional needs. Rihana attended school and the pediatrician regularly. In fact, at the time this petition was filed the mother was following up on Rihana's sleep apnea issues by arranging for a recommended surgery. Rihana has had some behavioral issues due to her ADHD diagnosis and her mother had responded appropriately to Rihana's needs by obtaining special education services, seeking counseling which Rihana continues to be enrolled in as well as medication. See Respondent's Ex. A and H and Court's Ex. I p. 5. Dr. Stuart, the mental health clinician who conducted the court-ordered imminent risk evaluation, indicated that Ms. J. demonstrated a good understanding of Rihana's behavioral challenges, a knowledge of the benefits of her medication and appropriate methods of limit-setting. "Ms. J[.] described adequate means of coping with stress as well as a network of supportive individuals to whom she turns when she feels in need." See Court's Exhibit I, New York City Health and Hospitals Corporation Family Court Mental Health Services ("MHS"), Clinical Report, Feb. 15, 2017, page 5. It is notable that despite Rihana's history of challenging behaviors, there is no evidence of Ms. J. ever having used corporal punishment on her. Rather, both the Respondent mother and Rihana deny any use of corporal punishment. In fact, during Rihana's in camera interview, Rihana described that being placed "on punishment" meant a loss of privileges such as the use of television and video games. This is consistent with what Rihana told Caseworker Tracy early on in her investigation. The testimony established that Rihana has never shown any fear of her mother and in fact, to the contrary, is extremely bonded to her. Rihana expressed to the Court her desire to return home to her mother and that she is sad to be away from her.
Dr. Stuart noted that the Respondent mother "presented in a cooperative manner" and that "[s]he responded at length to many of this examiner's inquires [sic] and her narrative was internally consistent." Dr. Stuart found that the Respondent "gave no indication of intentionally distorting information present to this examiner. Her reliability as an informant impressed as adequate."
It is highly significant to the Court and probative to the issues at this hearing that, since the time this petition was filed over one year ago, Ms. J. has been fully cooperative with ACS, the foster care agency, and all service referrals. See Respondent's Exhibit H, Permanency Hearing Report dated June 24, 2016.
It is also notable to this Court that, despite the stress of both this child protective proceeding and the criminal court proceeding, Ms. J. has kept the needs of her children first and foremost by consistently attending services as well as visiting with her children at every opportunity. The Respondent mother has completed two parenting skills programs and has been attending individual therapy regularly for almost one year, focusing on anger and stress management treatment. See Court's Exhibit II. Her therapist at Kings County Hospital, Dr. Alicia Mascho, wrote that Ms. J. is "fully engaged" in therapy and "very open to the process of exploring her emotions and experiences and allowed herself to face and work through very difficult situations." See Respondent's Exhibit F. Dr. Mascho further reported that Ms. J. "is very engaged in her sessions" and "makes all scheduled appointments." See Court's Exhibit II, Court Report, Coalition for Hispanic Family Services, dated Feb. 22, 2017. The Respondent has also attended every court date and the Court has had the opportunity to observe her demeanor throughout this hearing.
Ms. J. has attended all scheduled visits with both Rihana and Kaden and is noted to be "very attentive," and "very caring and lovable" towards them, helping Rihana with her homework and performing all normal parenting functions including giving Kaden his seizure medication, stressing that she "wants to be there for her children." See Respondent's Ex. H. No safety concerns have been raised whatsoever about her care of either child during any of these visits over this more-than-one-year period since the case was filed and the children were removed from her care. In fact, her visits with Rihana were changed from supervised to unsupervised day visits in August of 2016 and again, in the 6 months since, no concerns have been raised by Rihana or anyone who has observed her at the end of any of these visits. The Court allowed an overnight visit during the course of this hearing and that, too, proceeded without incident.
The foster care agency report, dated February 22, 2017, stated that, after her overnight visit with he rmother, Rihana told the caseworker that "she had a great time with her mother." See Court's Exhibit II. --------
Taken as a whole, the evidence establishes that Ms. J. is a concerned, loving and attentive parent. Additionally, it is notable to the Court that Ms. J. has not acted in any way that would foster the suspicion that she caused Kaden's injuries. Ms. J. immediately took Kaden to the hospital and has fully complied with interviews by numerous caseworkers, police and medical professionals who were investigating the cause of Kaden's injuries.
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, 378-79 (2004).
In March of 2016, Rihana, only eight-years-old at the time, threatened to hurt herself due to her removal from her mother. At that time, Rihana's therapist told the caseworker that Rihana had regressed to where she had been two years prior and was not the same child she was before. Although Rihana was moved to her grandmother's home soon after and her behavior and emotional state have improved, she remains separated from her mother now almost one year since the caseworker's conversation with Rihana's therapist. The question of whether Ms. J. played some role in allowing or causing any of Kaden's injuries will not be resolved until at least either the Family or Criminal Court trials are complete, a point which is, at best, months away. Nicholson requires that the Court focus on any current risk of harm to Rihana if she is returned to her mother and balance that against the emotional and mental harm of her continued removal. Rihana is a highly verbal and school-aged nine-year-old, and is very differently situated from her one-year-old brother. At this point in time, given Ms. J. compliance with services and court orders as well as her lack of any prior ACS history and her observed interactions with Rihana, the Court does not find that there is a sufficient basis to find that the Respondent mother poses an imminent risk to Rihana and therefore continue the removal of Rihana from her mother.
Additionally, the Court must consider whether any orders can be put in place to eliminate any risk that might exist and allow Rihana to return home to her mother as both the Respondent and Rihana have requested and for which Rihana's attorney has vigorously advocated. Based on the Respondent mother's high degree of cooperation with ACS over the past year and compliance with all prior orders of this Court, this Court is convinced that Ms. J. will continue to obey court orders, including those precluding the use of any corporal punishment, allowing weekly ACS announced and unannounced home visits and ensuring both she and Rihana continue to attend therapy. These orders are sufficient under Nicholson to mitigate any risk of returning Rihana that might exist.
Thus, for the reasons above, the Respondent mother's application pursuant to Family Court Act § 1028 is granted.
The court hereby orders that the subject child Rihana is released back to the legal care and custody of her mother under the following conditions:
• Ms. J. is to cooperate with ACS supervision including weekly announced or unannounced home visits.
• Ms. J. is to continue to attend her individual counseling sessions regularly.
• Ms. J. is to insure that the subject child Rihana attend her individual counseling on any weekends she has Rihana in her care and participate in that counseling as requested by the therapist.
• Ms. J. is not to use any corporal punishment on the subject child.
• Ms. J. is not to allow Rihana to be in the presence of Mr. M.
• Ms. J. is to continue to allow Rihana to have regular weekly visits with her father as arranged between the parents and regular sibling visits with Kaden. Dated: February 23, 2017
ENTER
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