Opinion
NA-XXXX-7/17
05-31-2017
In the Matter of Nevaeh N. Aaliyah N. Payton P. Alexis N., Children under Eighteen Years of Age Alleged to be Abused by v. Brianna N. Danitza S. Unique S. Tristan A., Respondents.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Factual Background
This Court held a hearing pursuant to Family Court Act § 1028 on this abuse petition which involves allegations of a fracture to the 4-month old subject child Alexis's arm for which she was brought to the hospital by her mother on February 18, 2017. The mother, Ms. Brianna N., who is also the mother of the three other subject children on this petition, is one of four respondents that the Administration for Children's Services ("ACS" or "Petitioner") filed against in the instant case. The Respondent mother orally moved for the return of these four subject children on May 1, 2017. The Attorney for the Children ("AFC") has been in support of this application and has repeatedly argued for unsupervised contact between the mother and at least the older two subject children throughout the pendency of this hearing.
ACS also filed two other petitions arising out of these same allegations: one against Ms. Unique S ("the babysitter") which solely alleges derivative neglect of her own children (ages 6 and 12) as a result of the allegations in the instant case, and one against Ms. Danitza S ("the godmother") which also solely alleges derivative neglect of her own children (ages 2, 9, 11, and 13) as a result of the allegations in the instant petition. ACS did not request the removal of either of those respondents' respective children on those dockets.
Notably, although Alexis's injury was first seen at NYU on February 18th and the case was called into ACS that same day, ACS did not execute an emergency removal from the mother until the filing of this petition on February 28, 2017. Prior to February 28th, the mother remained primarily with Alexis at NYU Hospital and ACS allowed her to make various provisions for the other three children's care.
At one point the other 3 children were with their godmother, Ms. Danitza S, but ACS directed Ms. N to make other arrangements since Ms. Danitza S was one of the caretakers during the time period relevant to Alexis's injury. Ms. N asked her own mother to pick up the other 3 children and they have remained in their grandmother's care, joined by Alexis once she was released from the hospital.
This case presents a classic child welfare "res ipsa" situation in which a child has had several, in this case three, different caretakers during the timeframe in which the injury could have occurred and, as a result, ACS acknowledges that it is not able to pinpoint exactly which caretaker is responsible. For that reason, petitions have been filed against four alleged caretakers: the child's mother, Ms. N, Ms. N's boyfriend Mr. A, the child's sitter, Ms. Unique S, and finally the child's godmother, Ms. Danitza S Somewhat inconsistently, although ACS sought removal of all four of Ms. N's children upon filing, they allowed Ms. Unique S, the sitter who had Alexis in her care overnight before the injury was discovered, to retain care and custody of her 6 and 12 year-old children. In part because of the multiple caretakers and other proof issues, although the matter was investigated by NYPD detectives, no criminal charges were brought. The subject children have resided with their maternal grandparents since the time of the initial remand and the Respondent mother has had daily, unlimited visits supervised by them.
While the Family Court Act does not specifically refer to "res ipsa" in its language, "[s]ubdivision (a)(ii) [of section 1046 of the Family Court Act] is the equivalent of the tort law res ipsa loquitur presumption." Practice Commentary, Family Ct. Act § 1046. Section 1046 states, in relevant part that, "[i]n any hearing under this article of this act proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible."
There was no evidence presented at this 1028 hearing that Mr. A was a solo caretaker of, nor even with Alexis at any time during the relevant period except after Ms. N discovered Alexis's injury and asked Mr. A to drive them to the hospital.
At the hearing, this Court heard the testimony of ACS case worker Ms. K and Dr. Margaret McHugh, a child abuse specialist from NYU Hospital. In addition, the Respondent Mother testified on her own behalf. ACS introduced only the ORT and some text messages between the Respondent mother and the godmother as exhibits while the Respondent introduced numerous exhibits including the records from NYU hospital and over 80 pages of ACS case records documenting the investigation of Alexis's injuries, all of which the Court has carefully reviewed. The AFC rested without calling any witnesses or introducing any evidence.
The sole basis for the removal of Ms. N's four children from her care proffered by Petitioner at this hearing is the fracture of the subject child Alexis's arm and tibia. The petition refers to three different types of injuries: an oblique fracture of the left humerus, a corner fracture of the tibia near the knee, and a toe fracture. The evidence established that the Respondent mother has given the same consistent rendition of her discovery of Alexis's injuries and the actions she took following that discovery to multiple people including the caseworkers, the detectives and various medical providers at the two locations where Alexis was treated. This account was testified to by Caseworker K and the mother and is repeated throughout all of the exhibits.
Petitioner's expert testified that the alleged toe fracture was ultimately found to be normal.
The evidence of the timeline of Alexis's movements over the course of the several days before her injury was discovered was established by the direct testimony of the caseworker and Ms. N and is essentially uncontested. Up until the time of the hearing, Ms. N worked night shifts at a hospital and therefore needed overnight care for her daughters five days per week. Ms. N, who had never had any indicated ACS cases with any of her children including Naveah who is 7, is clearly a hard-working single mother of four who manages a difficult work schedule through the assistance of a regular caretaker in her same building so that she can maximize her time with her children while providing financially for her family. Her schedule is likely exhausting: working from 11pm until 7am and then picking up her four children every morning, only one of whom is school-aged. On this particular week, since Ms. Danitza S, the children's godmother, wanted to spend time with the children whom she had not seen in a while, Ms. N took advantage of the opportunity for a break from the care of her three youngest children. So Alexis and her twin sister, Aaliyah, as well as her three-year-old sister, Payton, spent the week of February 13th Monday through Friday at the godmother's home. Naveah remained with Ms. N because her school was very close to Ms. N's home and the mother did not want to increase Naveah's commute. Ms. N picked up the 3 children from Ms. Danitza S on Friday at approximately 4:30pm and brought them home where she undressed and bathed them. Ms. N did not notice anything unusual about Alexis during that time. The babies took a nap and Ms. N rested on her bed, later feeding all of the children before she had to go to work. Ms. N then brought the children to the home of their sitter, Ms. Unique S, downstairs in the same building, at approximately 9:30pm. Around midnight that night, the Respondent received a text from Ms. Unique S that the babies were "cranky, especially Alexis", and Ms. N suggested the sitter give them Tylenol, which she had provided, because they were teething. At approximately 9:40 am Saturday morning, Ms. N picked up the children from Ms. Unique S. Because the twins were asleep, Ms. N carried Aleyah and Ms. Unique S carried Alexis, each putting them down in their bobby pillows still asleep. Ms. N fed the older two girls and they watched TV while Ms. N rested. Sometime later, Ms. N gave Alexis a bottle to feed herself while she was propped up in her "boppy pillow" but Alexis was not interested in eating. Then around noon, Ms. N went to dress Alexis to go out and that was when she first noticed that Alexis was not moving her arm, only her wrist. When the mother picked her daughter up, Alexis screamed when her mother lifted her arm. Ms. N consulted with her boyfriend and she put Alexis on her tummy to see if she could lift herself but she could not. Ms. N then called her mother and the children's god-mother and then went downstairs to see Ms. Unique S, the babysitter. According to what Ms. N told the hospital, the caseworker and then repeated on the stand, Ms. Unique S came upstairs to see Alexis and she immediately became very defensive and said nothing had happened to Alexis at her home. In the presence of Ms. Unique S, Ms. N asked her daughter Naveah if she saw anything happen to her sister, and Naveah said "no" but according to her mother "she looked scared." Ms. N testified that she then left the three older children with a different neighbor and asked her boyfriend, Mr. A, to drive her and Alexis to the Cobble Hill/NYU Emergency Room because she did not feel the closer hospitals were as good.
Dr. Margaret McHugh, an Associate Professor of Pediatrics and the Medical Director of the Child Abuse Team at NYU Hospital, testified that on Saturday, February 18th she received a call from the Cobble Hill NYU affiliate regarding four-month-old Alexis N who presented with a fracture of the left humerus. After arriving at NYU in Manhattan, Alexis received a full series of scans for suspected child abuse and maltreatment pursuant to protocol which determined that Alexis had a dislocated fracture of the left humerus and revealed a second fracture of the left proximal tibial metastasis, known as a "corner fracture". There was also a question of whether Alexis had a left toe fracture, however this possibility was eliminated two weeks later. On February 20th, Dr. McHugh reviewed the x-rays and labs and saw Alexis later that day. The doctor observed Alexis in the Respondent mother's arms being very active, trying to take the gauze off her arm. The doctor saw a very small bruise on Alexis's face but she otherwise appeared fine. Alexis's presenting symptom was that she was not moving her arm. Dr. McHugh testified that she observed that the mother acted appropriately and affectionately with Alexis and that the doctor had no concerns about their interactions that she observed. Dr. McHugh said she was informed that the Respondent mother and maternal grandmother stayed with Alexis throughout her entire hospitalization at NYU, that the mother was cooperative with the staff the whole time, and that no concerns were observed or raised.
Dr. McHugh testified telephonically at this hearing.
As far as timing of the injuries, Dr. McHugh testified that she could not tell exactly how old either fracture was or if both fractures happened at the same time. She said swelling would not necessarily happen immediately nor would the child be crying steadily from the time of the injury. Rather the doctor testified that "babies are smart" and know not to move their limbs if they are broken. Therefore, if Alexis was holding her arm still, or if she was carried while wrapped up or cradled so her arm was not moving, she would not show signs of being in pain. Given the timeline of whom the child was with, i.e. three different caretakers in the 24 hours before being brought to the hospital, Dr. McHugh stated that she could not rule out the Respondent mother, or any of the caretakers, because of the length of the window of opportunity. The doctor could not say definitively whether the injury happened on Friday February 17th or Saturday February 18th.
In terms of the mechanism of the injury, Dr. McHugh testified that Alexis's arm injury could be caused by either a blow to the arm or manipulation of the arm to twist the bone on itself, and that at four months old, Alexis could not have caused the injury herself. Although one possibility is blunt force, the doctor testified she would have expected more bruising around the site of the fracture unless Alexis had been hit hard enough with a soft toy. More likely, according to Dr. McHugh, is that the arm injury was caused by twisting or manipulation given the lack of bruising. On cross-examination, the doctor testified that the injuries could have been caused by Alexis being lifted by her arm with enough force from a sitting position, even by a 6-year-old, and thrown back into the playpen with her arm getting caught behind her, depending on the surface she fell back on. The corner fracture of the leg is caused by a "yank" or twist and is asymptomatic and thus would be missed without an x-ray as there would be no visible swelling or bruising. The fact that both injuries were on the left side was notable and likely means that the person involved was right-handed. Someone grabbing the child by her arm and leg while the child was falling could have caused both injuries simultaneously. Ultimately, Dr. McHugh testified that "there were multiple different ways" these injuries could have occurred.
The only direct explanations offered by anyone for Alexis's injuries placed the location of the injuries at the babysitter Ms. Unique S's home. These explanations were testified to by the ACS caseworker and are contained in the ACS case records admitted into evidence by the Respondent as Exhibit E. Naveah, Ms. N's 7-year-old daughter, gave the following account on multiple occasions: to her mother the day after the injury was discovered, the investigating detective and caseworker at the Children's Advocacy Center ("CAC") on February 23rd, and then again to the Caseworker Ms. K. separately. According to Naveah, at some point between Friday night to Saturday morning, Ms. Unique S left the apartment to take out the garbage and Ms. Unique S's 6-year-old daughter Sole picked Alexis up from the playpen by her arm and threw her back down into the crib. Alexis began crying and when Ms. Unique S returned, Naveah told her what happened. Naveah said Ms. Unique S told Sole never to do that again. Naveah told the detective and caseworker that her mother told her to tell them the truth; she also told the detectives that she knows there are "cameras in the building so they could see she was not lying." Notably, Naveah told the interviewers that Ms. Unique S was "her favorite babysitter" so she did not appear to have any motive to falsely accuse her or Sole. Respondent's Exhibit E, ACS Case Records, p. 45. Naveah repeated this account to the caseworker when interviewed at school on March 7th. Id. at p. 82.
On February 24th, when Sole was interviewed by the detective and caseworker, she first said that the last time the baby stayed at her house, the baby broke her arm. When asked how it happened, Sole said her mommy had dropped Alexis on the floor while feeding her and then the baby was crying. Sole acted out this scenario with a doll. Id. at 60. When subsequently interviewed at school on March 7th, Sole later changed her story to say that Naveah dropped Alexis and then after being pressed about the importance of telling the truth went back to saying that her mother dropped Alexis and had told her to blame Naveah. Id. at 83. The detective told the caseworker he felt that Ms. Unique S's children had been coached. Respondent's Exhibit E, p. 29.
Ms. Unique S's older child, Jahquan, 12 years old, strenuously denied that the Alexis was injured in his home even though he claimed he was in his room playing video games the whole time so therefore could not have seen anything that happened. Respondent's Ex. E p. 60-61.
The Respondent mother offered a written expert opinion by Dr. Jack Levenbrown who, according to his curriculum vitae, has more than 40 years' experience in the field of Pediatric Radiology and continues to practice as a hospital attending and professor in both areas at North shore Long Island Jewish and Cohen Children's Medical Center. Dr. Levenbrown reviewed the NYU Hospital records, Alexis's birth records from Lenox Hill Hospital, and the ACS case records, all of which were also put into evidence by the Respondent. See Respondent's Exhibits A-E. Respondent's expert also reviewed the x-rays taken at NYU on February 18th, 19th, 20th and March 3rd. See Respondent's Exhibit A. Dr. Levenbrown concludes in his letter that,
[I]t is uncertain when the injuries occurred but it is more likely to have occurred in the care of the babysitter, Unique S[], because of the statements (albeit conflicting) that the children Sole and Neveah made, the fussiness and crying of the infant overnight, and the mother's first being aware of the infant reluctance to use the left arm and noting tenderness of the left arm when the child woke up from a nap on 2/18 after being in the care of the baby sitter overnight. Furthermore, the onset of the presentation of swelling and bruising during the infant's hospitalization on 2/18, and the worsening of these symptoms over the course of that day is consistent with the injury occurring overnight while in the care of the babysitter.
The doctor also opined that Alexis may have caused the injury herself by rolling over and trapping her arm as described in an article from a journal of Pediatric Radiology given the notation in the NYU records that Alexis was able to roll over herself from a supine position even when her arm was in a sling. See Respondent's Exhibit F, Humeral Fracture in Non-ambulant Infants — a Possible Accidental Mechanism, Pediatric Radiology (2014) 44:1219-1223, by John Somers MD, Katharine Halliday MD, and Stephen Chapman MD.
While the Court is not able to fully resolve the question of how Alexis's injury occurred, the Court does not need to do so to address the legal issue at this 1028 hearing. "Rather, [this Court must] engage[] in a fact-intensive inquiry to determine whether [the children's] physical or emotional health is at risk" if returned to their mother. 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.
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).
Ultimately, in light of all the other evidence, the Court's assessment of the mother's credibility is critical to its decision here. The Court had the unique opportunity to observe Ms. N's demeanor and hear her testimony firsthand. The Court believes that the mother was credible in describing a situation in which she became aware of an injury to her infant daughter which she had no involvement in causing, and responded entirely appropriately from that point forward. Ms. N first noticed that Alexis was not moving her arm normally late Saturday morning. She lifted the child's arm and was convinced of a problem when Alexis screamed in apparent pain. To assess the severity, she tried putting Alexis on her stomach for "tummy time" and observed that she could not lift herself. She proceeded to reach out to the two caretakers who had been with Alexis most recently to see if they had noticed anything wrong. She called and texted the children's godmother who had Alexis from Monday through Friday and went downstairs to see Ms. Sin, the babysitter, who had Alexis the night before. She asked her oldest daughter if she had seen anything happen. Once she and her boyfriend became seriously concerned that Alexis's arm was broken, she arranged care for her other three children with a different caretaker and drove to the hospital.
Ms. N testified that she elected to drive over one hour to get to the Cobble Hill/NYU ER because she did not feel the closer hospitals of Kings County, Downstate, and Brookdale were as good. Additionally, she testified that, in her experience, there is never a wait at the NYU Cobble Hill ER location and she wanted her daughter seen quickly. Common sense dictates that, given that Alexis's injury was potentially at worst a broken bone, she could expect to wait a very long time in a busy emergency room of a large hospital, especially one such as Kings County that provides trauma care. In fact, as Ms. N predicted, Alexis was seen quickly at Cobble Hill and then transferred to NYU Manhattan by ambulance once it was determined she needed full hospital care. The Court finds the mother's actions and explanation to be entirely reasonable and within the bounds of sound parental judgment. The hour or more that Ms. N drove to get Alexis to Cobble Hill is quite likely less than her daughter would have waited to be seen in any of the other hospitals' emergency rooms. In addition, the choice of hospital is not indicative of guilt in any way. In fact, Ms. N testified that she knew, given Alexis's age, and likely also from her own work in a hospital, that ACS would be called for this type of injury and there is no suggestion that she had any affiliation with NYU which would have made them less likely to call in the report. As Ms. N predicted, the report of suspected child abuse was called in by the Cobble Hill NYU ER. See Petitioner's Exhibit 1. Given this knowledge, Ms. N's decision to take her daughter to an emergency room immediately supports the conclusion that she did not cause the injury. Although the Attorney for ACS attempted to dispute the mother's timeline, and there may have been minor discrepancies, the Court did not find that her cross-examination undermined the mother's credibility in any significant way. It is highly likely that a parent realizing her infant daughter was injured would be somewhat panicked and not proceed in the most rational or organized fashion. Ms. N testified that none of her four children had ever broken a bone before, yet Ms. N took all the steps that a reasonable, innocent, loving parent should be expected to take — confirm the injury exists, attempt to determine how the injury occurred from the child's most recent caretakers and obtain the most prompt and competent medical treatment available balancing the level of emergency involved. This is precisely the type of "adequate supervision and guardianship" that the law would require of a parent in Ms. N's situation. Ms. N clearly loves her children and showed appropriate concern about the injury Alexis suffered both on the day it occurred and every day since then.
Since the time this petition was filed over three months ago, the Respondent mother has been fully cooperative with ACS, the foster care agency, and all service referrals. She has almost completed a parenting skills program and attended a mental health evaluation. Since the children are with her parents, Ms. N has been granted liberal full day visits supervised by the grandparents and the mother has taken advantage of this order by visiting almost every day. No safety concerns have been raised about the mother's interactions with her children during any of these visits. Nor have of any of the children been observed to have any fear of their mother including when the caseworkers observed Alexis with her mother in the hospital the day after she was admitted. The Court allowed Ms. N to have liberal unsupervised visits with her oldest child Naveah and sandwich visits with her four-year-old daughter, Payton, during the course of this hearing and those, too, proceeded without incident. Naveah and Payton have never reported being hit by their mother and there were no bruises observed on any of the other three children. Ms. N testified that she does not use corporal punishment because she "was not raised that way" and that she disciplines her children by taking electronics away from them. ACS spoke to Ms. N's pediatrician and there had been no prior concerns about her care of any of the children. There is no evidence of Ms. N having any criminal history or prior domestic incident reports. Finally, Ms. Danitza S, the godmother, who was also named as a respondent and therefore could have a motive to blame Ms. N, told the caseworker that Ms. N was an "awesome mother" who would not do anything to harm her girls. Ms. Danitza S also offered to take a lie detector test. See Respondent's Exhibit E, ACS Case Records p. 43.
Petitioner argues that it is inappropriate to allow unsupervised contact and return children in a res ipsa abuse case pre-fact-finding. However, no such categorical exception exists in FCA § 1028 or in the case law. See In re Matthew W., 125 AD3d 677, 678 [2d Dept 2015] ("[P]rior to a fact-finding hearing on the cause of the injuries to the 10-month-old child [t]he record supports the Family Court's determination that allowing overnight parental visitation did not pose an imminent risk of harm to the children. The parents had addressed the need for greater vigilance in monitoring their children's activities, and were otherwise compliant with their service plan."); In re Vinny Z., 52 NYS3d 198 [Fam Ct 2017]; In re I.R., 47 Misc 3d 1018 [Fam Ct 2015]. The cases cited by Petitioner are inapposite to the facts of this case. In both In re Bree W., 98 AD3d 522 [2d Dept 2012] and In re Daniel O., 141 AD3d 434 [1st Dept 2016], there was only one home in which the subject child's injury could have occurred and both respondents lived in that home. Both courts pointed out in their decisions reversing the Family Court's granting of unsupervised visitation that the injured child had been in the exclusive care of the respondent parents at the relevant time when the injury occurred. These scenarios are significantly different from the instant case where the injured child was cared for by three different caretakers in three different homes during the relevant timeframe and the Court has had the opportunity to closely examine the evidence concerning the relative likelihood of the injury having occurred in each home. The Court had the ability to assess the credibility of the mother over multiple court appearances and found her actions upon discovering Alexis's injury to be inconsistent with the actions of someone who caused the injury or had any information about how it had been caused. This is also distinguishable from the cases cited in that those Family Court decisions allowing unsupervised contact were reached after only a permanency hearing, see Bree W, supra, or an application by motion, see Daniel O., supra, as opposed to a fully-litigated 1028 hearing as was held in this case. This Court believes the record from this 1028 hearing, including all of the testimony and exhibits, is a "sound and substantial basis" to find that return is in the children's best interests. See Daniel O. at 435.
The Court notes that even when abuse is found at a fact-finding hearing, that finding is not necessarily dispositive of whether the children should be released to the Respondent(s) or not. See Matter of Philip M., 82 NY2d 238, 243 [1993] (after making finding of abuse, Court released the subject children to the respondents with supervision); 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"). --------
The Court has also considered whether any orders can be put in place to further eliminate any risk that might exist and allow the children to return home to their mother. Given the Respondent's cooperation with ACS over the past three months and compliance with all prior orders of this Court, this Court is convinced that the subject children will not be at imminent risk of harm in Ms. N's care and that she will continue to obey any and all court orders which is sufficient under Nicholson to mitigate any risk of returning the subject children 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 children be released back to the legal care and custody of their mother under the following conditions:
The Respondent mother is to cooperate with ACS supervision including weekly announced or unannounced home visits.
The Respondent mother is only to leave the four subject children alone with a caretaker approved by ACS.
The Respondent is to continue to attend her parenting skills class until completed.
The Respondent mother is not to use any corporal punishment on the subject children. Dated: May 31, 2017 ENTER ________________________________ The Hon. Jacqueline B. Deane