OPINION OF THE COURT
On March 26, 2010, the Administration for Children’s Services (hereinafter petitioning agency), filed a petition pursuant to Family Court Act § 1012 against Candice J. (hereinafter respondent mother) and Allen S. (hereinafter respondent person legally responsible [PLR]) with respect to Amirah L. (hereinafter Amirah), born on July 5, 2006, alleging derivative severe or repeated abuse, derivative abuse, and derivative neglect. The petition alleges that based upon the respondent mother’s and respondent PLR’s acts and/or omissions that led to the death of Amirah’s younger sibling, Anniyah L. (hereinafter Anniyah), Amirah is a derivatively severely or repeatedly abused, abused, or neglected child, or in danger of becoming so. (See e.g. Matter of Alijah C., 1 NY3d 375 [2004] [finding deceased child may be subject of abuse petition brought on behalf of surviving sibling].)
On March 1, 2011, a fact-finding hearing in the matter commenced before the Honorable Ronald E. Richter (hereinafter Judge Richter). Judge Richter heard testimony on March 1, 2011, April 11, 2011, and June 13, 2011. Thereafter, Judge Richter resigned from the bench. On September 26, 2011, due the fact that the case was in a trial posture, the case was transferred to the court, who presides over the “trial part.”1, 2 On September 6, 2012, the respondent PLR submitted to the court’s jurisdiction pursuant to Family Court Act § 1051 (a).3 On that same date, since the respondent mother was the only remaining respondent in the case, a retrial in the matter commenced solely against her. The court heard testimony on September 6, 2012, September 7, 2012, September 10, 2012,
Evidence
The petitioning agency’s testimonial evidence consisted of the testimony of Maria Figueroa, the caseworker assigned to the instant case, and doctor Danielle Laraque, an expert in pediatrics and pediatric child abuse. The petitioning agency’s documentary evidence admitted during the course of the petitioning agency’s case for the court’s consideration consisted of an oral report transmittal (hereinafter ORT), dated March 25, 2010, another ORT, dated March 25, 2010, certified and delegated Mount Sinai Hospital medical records, and Anniyah’s death certificate, dated March 30, 2010. The respondent mother’s testimonial evidence consisted of doctor Simeon David, an expert in pediatrics and pediatric child abuse, and the respondent mother, who testified on her own behalf. The respon
Testimonial Evidence
A. Petitioning Agency’s Case
The petitioning agency’s first witness was Maria Figueroa (hereinafter Ms. Figueroa), who testified that she is the child protective specialist assigned to the case.8 Ms. Figueroa testified that on March 25, 2010, she went to Mount Sinai Hospital since Anniyah had died and the case was being considered a homicide. She told the court that while at the hospital, she spoke with detectives. Ms. Figueroa stated that when she initially tried to speak to the respondent mother, who was present at the hospital, the respondent mother was irate and belligerent with her, and told Ms. Figueroa that she had no right to be at the hospital. Ms. Figueroa testified that the respondent mother told her that “[Anniyah] just fell, that’s all that happened.” She stated that when she told the respondent mother that she was taking Amirah into custody, the respondent mother started screaming and yelling. Ms. Figueroa told the court that she gave the respondent mother her business card, but the respondent mother threw it back at her, ultimately taking her business card later that day. She stated that detectives escorted the respondent mother to a police precinct.
Ms. Figueroa testified that she interviewed Amirah, who was three years old at the time. She told the court that Amirah stated that she lived with the respondent mother and “Nini,” which was apparently how she referred to her sister, Anniyah. Ms. Figueroa stated that Amirah spontaneously blurted that Anniyah had fallen off of the bed and repeated this information to Ms. Figueroa several times without provocation. She testified that when she asked Amirah about her comment, Amirah told her that she did not actually see Anniyah fall off of the bed because she was watching television and eating pizza. Ms. Figueroa told the court that she then asked Amirah whether someone had told her to say that Anniyah fell off of the bed and Amirah said that the respondent mother told her to say so. Ms. Figueroa also stated that Amirah told her that during the previous evening, the respondent PLR took Anniyah into the
Ms. Figueroa testified that when she was able to interview the respondent mother, the respondent mother stated that in March 2010, Amirah and Anniyah were typically in day care during the day and that the respondent PLR took care of them during the evening while she was at work at CVS in Manhattan. She told the court that the respondent mother stated that her shift at CVS began at 10:00 p.m. and that she left Amirah and Anniyah in the respondent PLR’s care from approximately 8:50 p.m. when she left for work until approximately 7:00 a.m. or 8:00 a.m. when she returned home the following morning. Ms. Figueroa stated that Amirah and Anniyah usually slept through the night.
Ms. Figueroa testified that the respondent mother told her that about one year ago, she met the respondent PLR through her aunt who was dating the respondent PLR’s father. She told the court that the respondent mother stated that she was dating the respondent PLR and that he was practically living in her home, but since her rent voucher did not permit other people to live there, she did not share this information with her service provider. Ms. Figueroa stated that the respondent mother initially told her that she was unaware that the respondent PLR had an extensive criminal background, but that eventually the respondent mother disclosed that she knew that the respondent PLR had been in jail for gun possession. She testified that the respondent mother described her relationship with the respondent PLR as a good relationship, but that there had been some arguments between them about financial issues.
Ms. Figueroa told the court that on March 24, 2010 at approximately 7:00 p.m. she was home alone with Amirah and Anniyah, making dinner in the kitchen, when she heard a thump and then she heard Anniyah crying. She testified that the respondent mother stated that she went into the bedroom, picked Anniyah up from the floor, and asked Amirah what had happened. Ms. Figueroa stated that the respondent mother told her that Amirah stated that Anniyah was trying to climb up the bunk bed ladder and fell. She testified that the respondent mother told her that after the fall, Anniyah had redness on the left side of her face, a bruise and swelling on her left cheek, and blood on her lip. Ms. Figueroa told the court that the respondent mother stated that she did not think that the fall was severe, that she put some ice on Anniyah’s face, and that Anniyah
Ms. Figueroa testified that the respondent mother said that she had been unaware what Anniyah’s injuries were until the police explained them to her. She told the court that the respondent mother stated that she did not have any concerns regarding the respondent PLR’s care of Anniyah until she learned about the extent of Anniyah’s injuries and then she thought that he may have done something to Anniyah. She stated that the respondent mother told her that several weeks prior, she noticed that Anniyah had a bruise on her face. Ms. Figueroa stated that the respondent mother told her that the respondent PLR stated that the girls had been playing and surmised that was probably how Anniyah got injured. She testified that the respondent mother stated that at the time, Amirah told the re
The petitioning agency next called doctor Danielle Laraque9 (hereinafter Dr. Laraque), whom the court qualified, upon stipulation, as an expert in pediatrics and pediatric child abuse. Dr. Laraque testified that in March 2010, she worked at Mount Sinai Hospital as the General Academic Pediatrics Division head and that she was also in charge of the Child Abuse Unit. She told the court that when Anniyah arrived at Mount Sinai Hospital in cardiac arrest with acute injuries, she was contacted to be a consultant on the case because the emergency room physicians were questioning whether Anniyah’s injuries were a result of child abuse. Dr. Laraque stated that on March 25, 2010 at approximately 11:10 a.m., Anniyah’s initial triage took place. She testified that at that time, Anniyah’s eyes were closed, she was unresponsive to pain or stimuli, she had no pulse, no respiration, and she was not spontaneously breathing. Dr. Laraque testified that the doctors were intermittently resuscitating Anniyah. She stated that the left side of Anniyah’s face was extensively bruised from the top of her forehead to her chin, and she had chest bruising, abdominal bruising, and back bruising. Dr. Laraque testified that since Anniyah had to be intubated, she was not able to fully examine Anniyah’s mouth at that time. She told the court that Anniyah’s belly was tense which caused a concern regarding injury to Anniyah’s spleen, liver, and other organs in that area. Dr. Laraque stated that Anniyah’s genital exam was normal, but her anal exam revealed a spontaneous opening, her sphincter presented internally and externally, and she had a mucousy bloody discharge from her anus which caused a concern regarding injury to Anniyah’s intestine. She testified that Anniyah was taken for a CT scan because there was a concern that Anniyah might have suffered a head injury and Anniyah’s CT scan revealed that she had soft tissue swelling. Dr. Laraque told the court that since Anniyah died at 3:31 p.m., rather quickly after her admission to the hospital, there was a huge amount of information that could not be collected regarding her injuries because there were a number
Dr. Laraque testified that she spoke to the respondent mother while Anniyah was critically ill. She told the court that the respondent mother was aware that it was likely that Anniyah might die. Dr. Laraque stated that she asked the respondent mother about the circumstances surrounding Anniyah’s admittance to Mount Sinai Hospital. She testified that the respondent PLR and Amirah were at the hospital in the general vicinity of where she was speaking with the respondent mother. Dr. Laraque told the court that the respondent mother stated that on March 24, 2010 at approximately 7:00 p.m. or 8:00 p.m., Amirah was climbing her bunk bed and Anniyah followed her up the ladder. Dr. Laraque stated that the respondent mother told her that she was in a different room from the girls and she heard a thump, followed by a cry. Dr. Laraque testified that the respondent mother told her that when she went into the room where her daughters were located, she saw Anniyah sitting on the floor being propped up by her hands, and that Anniyah’s face was red and swollen, and she had blood coming out of her mouth. She told the court that the respondent mother stated that she gave Anniyah oatmeal that evening because she thought that Anniyah could not chew, but she did not elaborate about why she believed that Anniyah would be unable to do so. Dr. Laraque stated that the respondent mother told her that other than those injuries, Anniyah was capable of playing and the respondent mother put her to bed that night without additional incident. Dr. Laraque testified that the respondent mother told her that she was the only adult in the house that night. She told the court that the respondent mother stated that on the next day, at approximately 9:00 a.m., she went to check on Anniyah and Anniyah was groaning, she had vomited and defecated, her face was a purple color, and she was unresponsive. Dr. Laraque stated that the respondent mother told her that she took a taxicab to the hospital.
Dr. Laraque testified that to a reasonable degree of medical certainty, some of Anniyah’s rib fractures were shaking injuries, and that direct blows caused the injuries to Anniyah’s jaw, chest, and abdomen. She told the court that the respondent mother’s account of Anniyah’s minor facial bruising and swelling on the previous evening and her concomitant explanation for those injuries did not adequately explain Anniyah’s progression to being gravely ill the following morning. Dr. Laraque’s opinion of Anniyah’s cause of death, to a reasonable degree of medical certainty, was multiple trauma due to child abuse.
After the conclusion of Dr. Laraque’s testimony, the petitioning agency admitted into evidence certified and delegated Mount Sinai Hospital medical records and Anniyah’s certified and
B. Respondent Mother’s Case
The respondent mother called doctor Simeon David (hereinafter Dr. David), whom the court qualified, upon stipulation, as an expert in pediatrics and pediatric child abuse. Dr. David testified that in preparation for his testimony, he reviewed Anniyah’s Mount Sinai Hospital medical records, the petitioning agency’s caseworker’s notes, the medical examiner’s autopsy reports, and the instant case’s original trial testimony, including his own testimony at that trial. Dr. David told the court that the respondent mother’s account of Anniyah’s left-sided facial injuries was consistent with a presumed fall from a bunk bed as she reported and that a fall can cause a chest bruise. He stated that typically, there would be no bruising or swelling around fractured ribs so a caretaker might not be alerted to a child’s fractured ribs unless a child was irritable or crying, but that there are other reasons why a child might be irritable or crying, such as teething or tiredness. Dr. David testified that since there is usually no treatment for nondisplaced rib fractures such as Anniyah had, failing to bring her to a doctor would not exacerbate those injuries. He conceded, however, that Anniyah’s injuries were extensive and acute, and that many of her injuries were caused by copious blows of severe force, including her brain injury, rib fractures, liver laceration, multiple intestines lacerations, hemorrhage to her heart and lung, and damaged spleen, kidney, pancreas, and adrenal glands. He also conceded that all of Anniyah’s injuries would not have been caused by her climbing up one rung of a bunk bed ladder, that she would have had to have been at least three to four feet off of the floor, and that even so, the injuries that Anniyah sustained were so significant that they would not have occurred from that type of fall. Dr. David testified that a direct blow or a compression of Anniyah’s rib cage, such as when a child is shaken, could have caused her nonacute rib fractures. Dr. David told the court in order for Anniyah’s jaw to have been broken, there would have been a large degree of force, such as a direct blow from that of an adult or a child older than three years old. Dr. David stated that a substantial amount of direct trauma caused Anniyah’s liver laceration and that such an injury was fatal since her heart
Dr. David testified that it was difficult to give an exact time as to when Anniyah’s injuries occurred, but that all of her injuries did not occur within the 24 hours preceding her death. Dr. David told the court that Anniyah’s injures were caused by more than one event. Dr. David’s reasoning that there was more than one incident involved with Anniyah’s injuries was based, in part, upon the calcification of some of her ribs, which he stated can occur 10 to 14 days after an injury in an adult, a bit less time in cases involving children since children heal faster. Dr. David stated that the autopsy report reflected blunt impact injuries to Anniyah’s head as well as her body and extremities. He told the court that the autopsy report contended that there could have been three separate incidents in which Anniyah’s injuries were sustained. Dr. David stated that he agreed with the autopsy report that there was more than one incident of trauma to which Anniyah was submitted and that child abuse was the cause of her death.
Next, the respondent mother testified on her own behalf.11 The respondent mother testified that in February 2010, she was promoted to shift supervisor at CVS in Manhattan and she began to work evenings from 10:00 p.m. to 8:00 a.m. She told the court that she entered into an agreement with the respondent PLR that he would care for Amirah and Anniyah while she was at work. The respondent mother stated that in March 2010, the respondent PLR did not live with her, but he did frequently sleep over at her home. She testified that she remembers that March 24, 2010 was a Wednesday. The respondent mother told the court that on that day, Amirah and Anniyah did not go to day care and she spent the day with them. She stated that nothing of note occurred that entire day from the morning when Amirah and Anniyah awoke until 7:30 p.m. that evening. The respondent mother testified that at approximately 6:00 p.m.,
The respondent mother told the court that several times that evening, she had telephone contact with the respondent PLR. She stated that she called the respondent PLR at 10:00 p.m. when she arrived at work to check in with him, she spoke to him briefly at midnight, she had a conversation with him at 6:00 a.m. during which he asked her when she was getting off from work, and she spoke to him at 8:00 a.m. at which point he told her that Anniyah was sick, that he did not know what was wrong with her, and that the respondent mother needed to quickly come back home. The respondent mother testified that during their other telephone conversations that night, the respondent PLR did not tell her that either child was having issues and she never asked him how the girls were doing. She told the court that when she got home at approximately 9:00 a.m. on March 25, 2010, she rushed to see Anniyah, who was in the respondent mother’s room on the bed, instead of in her own bed. The respondent mother stated that Anniyah was alone, lying on her side, and breathing normally, but when she turned Anniyah over, the whole left side of Anniyah’s face was purple. She testified that Anniyah had defecated in her diaper so she changed Anniyah’s diaper. The respondent mother told the court that other than Anniyah’s face’s purplish color, she saw no other signs or symptoms of injury on Anniyah. She explained that the room was dark when she changed Anniyah’s diaper. The respondent mother stated that she asked the respondent PLR what had happened to Anniyah and he responded that he did not know. The respondent mother testified that she got Amirah and Anniyah dressed and got the diaper bag ready to take them to the hospital so that Anniyah could receive medical care.
The respondent mother told the court that she decided to take a taxicab to Mount Sinai Hospital because that was the location where a pediatrician last saw the children. She stated that she did not want to go to Elmhurst Hospital because on a prior occasion while she was with the respondent PLR, he had a bad experience at that hospital. The respondent mother told the court that Elmhurst Hospital was a busy hospital and there were numerous criminal convicts walking around that hospital.
The respondent mother testified that when she got to Mount Sinai Hospital, she checked in at the desk, where they took her information and she was told to sit down and wait. She told the court that about 10 minutes later, she saw Anniyah’s eyes roll back into her head so she knocked on the triage window. The respondent mother stated that she showed the nurse the side of Anniyah’s face and the nurse escorted them to the back. She testified that she spoke to a male doctor, but she did not remember his name. She also testified that she spoke with Dr. Laraque, but that she did not remember their conversation. The respondent mother told the court that Ms. Figueroa briefly questioned her. She stated that the police arrived at the hospital and that she and the respondent PLR were taken to a police precinct where she was questioned about what happened to Anniyah. The respondent mother testified that after two days of questioning, no criminal charges were filed against her. She told the court that she did not know that Anniyah had died until she was at the police precinct and the police told her.
The respondent mother testified that during the two months preceding March 24, 2010, Anniyah did not present with abnormal irritability, vomiting, lethargy, or bruising. She told the court that prior to March 24, 2010, Anniyah suffered some minor injuries that occurred when she was playing with Amirah. The respondent mother explained that Amirah pushed Anniyah and she fell on the radiator, which scratched her. She stated that she cleaned Anniyah’s scratch and put a band aid on it, but that Anniyah’s scratch did not require medical attention. The respondent mother testified that she was not aware that Anniyah had broken ribs, and that Anniyah never acted as though she were in pain.
C. Attorney for the Child’s Case
The Attorney for the Child did not present testimonial evidence.
Documentary Evidence
A. Petitioning Agency’s Case
Admitted into evidence during the petitioning agency’s case was an oral report transmittal, dated March 25, 2010, with the mandatory reporter being Leigh Penner, a social worker at Mount Sinai Hospital. The CRT’s narrative states:
“Anniyah (age 1) has broken mandible, rectal tear, rectal bleeding & low rectal tone. Anniyah has Penumo Thorax to her right side. Anniyah has Hemotoma to the left side of her face. Mother says Anniyah fell off the lower rung of a ladder (to lower bunk bed).This injury occurred on March 24, 2010. Mother said the child had swelling and mother brought the child by taxi to emergency room today March 25, 2010, around 10:00am. Mother’s explanation is not consistent with the nature of the injuries sustained. The injury was inflicted. The role of the other child is unknown.” (See petitioner’s exhibit 1.)
Also admitted into evidence during the petitioning agency’s case was another oral report transmittal, dated March 25, 2010, with the mandatory reporter being Emily Banach, a social worker at Mount Sinai Hospital. The CRT’s narrative states:
“Last night, 03/24/10 between 7pm and 8pm, Amara (3) and Anniyah (1) were unsupervised in theirPage 1019bedroom. Anniyah fell from the lower bunk bed, injured her cheek, and the child was sent to bed. This morning, 03/25/10, Anniyah woke up lethargic, vomiting, with increased bowel movements and rectal bleeding. Mother brought both children from Queens to Mount sinai hospital in Manhattan via taxicab. Anniyah was pronounced dead on 03-25-10. After a medical examination, the child has multiple bruises, injuries, and trauma to both sides of her body. The explanation is inconsistent with the injury, therefore, mother (Candace) is held responsible.” (See petitioner’s exhibit 2.)
Moreover, admitted into evidence during the petitioning agency’s case were certified and delegated Mount Sinai Hospital medical records which reveal that on March 25, 2010 at approximately 10:52 a.m., Anniyah, an approximately 19-month-old child, arrived at Mount Sinai Hospital by taxi. (See petitioner’s exhibit 4.) The records also reveal that Anniyah was accompanied by the respondent mother, who carried her into the emergency department, and the respondent mother’s boyfriend, Allen.12 (Id.) The records further reveal that Anniyah presented with major chest and respiratory trauma. (Id.) The records show that her pupils were fixed and dilated bilaterally, she had diffuse left-sided facial bruising and right rib bruising, and she was cold, pale, and pulseless. (Id.) The records also show that Anniyah was in cardiac arrest. (Id.) The records further show that due to the extreme nature of her condition,13 Anniyah was immediately intubated, and cardiac pulmonary resuscitation as well as advanced cardiac life support was performed upon her, after which a CT scan was performed upon her. (Id.) The records disclose that Anniyah was then transferred to the Pediatric Intensive Care Unit where she presented as unresponsive to all stimuli. (Id.) The records also disclose that Anniyah was provided with emergency care, including transfusions, drug therapy, oxygen administration, catheterization, intubation, ventilation, and ongoing cardiac pulmonary resuscitation. (Id.) The records further disclose that at 3:31 p.m., after approximately three hours of ongoing intermittent resuscitation, Anniyah had multiorgan failure, her blood pressure was
The records show that the respondent mother brought Anniyah to Mount Sinai Hospital on three prior occasions. (Id.) The records show that the first occasion was on July 18, 2009 for an eye problem in which Anniyah’s right eye was tearing, with no redness, itching, discharge, pain, or fever. (Id.) The records also show that Anniyah was discharged home and advised to return if symptoms failed to resolve or worsened. (Id.) The records disclose that the second occasion was on July 22, 2009
The records show that the petitioning agency reported to Mount Sinai Hospital that the respondent mother had two previous child protective cases with them. (Id.) The records disclose that the petitioning agency reported that one case involved the respondent mother’s mental health when it was alleged that she left Amirah home strapped to a car seat while she was on the roof, threatening to kill herself; that case was deemed unfounded. (Id.) The records reveal that the petitioning agency reported that the other case involved locating housing for the respondent mother. (Id.) The records indicate that the petitioning agency stated that when the respondent mother received housing, she divulged that a past boyfriend had been abusive to her, and the case was indicated for domestic violence in the presence of Amirah. (Id.) The records show that ACS stated that case was kept open for preventative services. (Id.)
Further, admitted into evidence during the petitioning agency’s case was Anniyah’s death certificate, dated March 30, 2010, deeming her manner of death, after an autopsy, as a homicide as a result of child abuse. (See petitioner’s exhibit 5.) Anniyah’s immediate cause of death was determined to be “Blunt Impacts Of Head And Torso With Fractures And Visceral Injuries.” (Id.) Her date and time of death were set at March 25, 2010 at 3:31 p.m. (Id.)
B. Respondent Mother’s Case
Admitted into evidence during the respondent mother’s case was an undated employment letter, stating: “To Whom It May Concern, Candice J. works for CVS/Pharmacy. On March 24-25, 2010, she did an overnight shift from 10pm on the 24 and she left at 8am on the 25. Any questions feel free to contact us at
C. Attorney for the Child’s Case
The Attorney for the Child did not present documentary evidence.
Proving Child Protective Cases
In an article 10 fact-finding hearing, the petitioning agency has the burden of proof. In neglect or abuse cases, the Family Court must determine that the petitioning agency proved the case by a preponderance of the evidence. (See Family Ct Act § 1046 [b] [i]; see also Matter of Tammie Z., 66 NY2d 1 [1985] [affirming neglect findings and rejecting argument that, in light of Santosky v Kramer (455 US 745 [1982]), neglect findings should be based upon clear and convincing evidence].) A preponderance of the evidence means “that degree of proof which is more probable than not.” (Black’s Law Dictionary 1182 [6th ed 1990].) Family Court Act § 1012 (f) dictates that a neglected child is a child younger than 18 years old “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.” (Family Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of Tylasia B. [Wayne B.], 72 AD3d 1074, 1075 [2d Dept, Apr. 27, 2010]; Matter of Ashanti R., 66 AD3d 1031, 1031 [2d Dept, Oct. 27, 2009].) Family Court Act § 1012 (e) (i) states, in pertinent part, that an abused child is a child younger than 18 years old whose parent or other person legally responsible for his or her care “inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.” (Matter of Commissioner of Social Servs. of City of N.Y. v Abigail A., 219 AD2d 652, 652 [2d Dept, Sept. 18, 1995]; Matter of Marcus S., 123 AD2d 702, 702 [2d Dept, Oct. 14, 1986].) Thus, the petitioning agency must present evidence sufficient to meet the aforementioned neglect or abuse elements by a preponderance of the evidence.
In severe or repeated abuse cases, the Family Court must decide that the petitioning agency proved the case through clear and convincing evidence. (See Family Ct Act § 1046 [b] [ii].)
In the instant case, the petitioning agency’s petition against the respondent mother was pleaded in the alternative, alleging both derivative severe or repeated abuse as well as derivative abuse and derivative neglect. The court’s finding may be a find
Res Ipsa Loquitur
Family Court Act § 1046 (a) (ii) is a fault-based statute, prescribing that
“proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible.” (See Family Ct Act § 1046 [a] [ii]; see also Matter of Philip M., 82 NY2d 238, 243-244 [1993]; Matter of Jaiden T.G. [Shavonna D.-F], 89 AD3d 1021, 1022 [2d Dept, Nov. 22, 2011]; Matter of Alanie H. [Crystal D.], 69 AD3d 722, 723-724 [2d Dept, Jan. 12, 2010]; Matter of Aniyah F., 13 AD3d 529, 530-531 [2d Dept 2004].)
Where a child is injured and it is unclear as to who caused the injuries and when and where the child’s injuries occurred, traditional res ipsa loquitur principles apply. (See Matter of Philip M., 82 NY2d at 244 [section 1046 (a) (ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur . . . modeled on the res ipsa loquitur doctrine”]; see also Matter of Jaiden T.G., 89 AD3d at 1022.) The res ipsa loquitur negligence doctrine is an evidentiary rule dictating that absent a reasonable alternative explanation, a presumption of culpability will exist from proof that the character and circumstances surrounding an incident demonstrate that but for the alleged wrongdoer’s negligence, the injury would not have taken place. (See Black’s Law Dictionary 1305 [6th ed 1990].)
In the instant res ipsa case, the court finds that the petitioning agency proved abuse and neglect by a preponderance of the evidence. The evidence established that during the relevant time period in which Anniyah sustained serious traumatic injuries which culminated in her death, both the respondent mother and the respondent PLR cared for Amir ah and Anniyah. The evidence showed that the harm to Anniyah was inflicted on more than one occasion with the most severe injuries occurring within the last day of her life. The evidence demonstrated that the respondent mother’s explanation for Anniyah’s injuries, an unwitnessed fall from a bunk bed ladder, was incompatible with the nature and degree of trauma An
When the burden of going forward shifted to the respondent mother, she testified with the same explanation that Anniyah’s injuries were the result of a fall after having climbed up a bunk bed ladder, but her testimony with regards to the details was inconsistent with Ms. Figueroa’s testimony and Dr. Laraque’s testimony about their conversations with her. Most damning was the fact that the respondent mother’s own expert testified consonant with the petitioning agency’s expert that Anniyah’s injuries were significant and that the respondent mother’s account of Anniyah’s fall did not comport with all of Anniyah’s trauma. In short, both the petitioning agency’s expert and the respondent mother’s expert stated that their opinion was that Anniyah suffered multiple acute trauma on more than one occasion that ultimately led to her death as a result of acts of child abuse. Consequently, the respondent mother’s explanation for Anniyah’s serious injuries was not feasible and certainly not reasonable. (See Matter of Daughtry A. [Massiel E.], 94 AD3d 878, 878-879 [2d Dept, Apr. 10, 2012] [affirming neglect finding where respondent failed to offer “credible and reasonable explanation of how the child sustained the injuries” to rebut prima facie case]; see also Matter of Aniyah F., 13 AD3d at 531 [respondents failed to provide a satisfactory explanation for the (child’s) injuries; reversed and abuse findings entered against mother and aunt].)
In its assessment of the evidence, the court credits the testimony of the disinterested witnesses,14 caseworker, Ms. Figueroa, the petitioning agency’s expert, Dr. Laraque, and the respondent mother’s expert, Dr. David, and found the respondent mother’s testimony to be largely self-serving, inconsistent,
Thus, the court finds that the petitioning agency proved by a preponderance of the evidence that the respondent mother’s actions or omissions more likely than not caused Anniyah’s injuries since during the time period when the respondent mother and the respondent PLR were caring for her, Anniyah suffered serious traumatic injuries for which there is no sufficient explanation. Accordingly, the court enters derivative abuse and derivative neglect findings against the respondent mother with respect to Anniyah’s surviving sibling, Amirah.16 The court is, however, constrained not to enter a derivative se
Severe Abuse and Repeated Abuse
In the context of child protective proceedings, the severe abuse and repeated abuse definitions are reached through examining a conglomeration of statutes in conjunction with each other. The Family Court Act refers to severe abuse and repeated abuse as aggravated circumstances within the meaning of Social Services Law § 384-b (8). (See Family Ct Act § 1012 Q]; see also Social Services Law § 384-b [8].) For the purposes of a repeated abuse definition, Social Services Law § 384-b (8) (b) (i) (A) and (ii) (A) must also be examined. (See Social Services Law § 384-b [8] [b] [i] [A]; [ii] [A].) Social Services Law § 384-b (8) (b) (i) (A) and (ii) (A) define a repeatedly abused child as a child who has been found to be abused as a consequence of his or her parent’s acts, and his or her parent has a prior abuse finding, within five years immediately predating the petition’s filing in which said abuse is found, regarding that child or another child for whom that parent is or has been legally responsible. (See Social Services Law § 384-b [8] [b] [i] [A]; [ii] [A]; see also Matter of Alijah C., 1 NY3d at 379.) In the instant case, the court declines to enter a repeated abuse finding against the respondent mother since the petitioning agency presented no evidence demonstrating that a prior abuse finding was ever entered against the respondent mother. (See Social Services Law § 384-b [8] [b] [i] [A]; [ii] [A]; see also Alijah C., 1 NY3d at 379.) Accordingly, the court dismisses those portions of the petitions in conformity with the reasoning set forth within this decision.
For the purposes of a severe abuse definition, Social Services Law § 384-b (8) (a) (i), Penal Law §§ 10.00 (10) and 15.05 (1) and (3), and case law must also be examined. (See Social Services Law § 384-b [8] [i]; see also Penal Law §§ 10.00 [10]; 15.05 [1], [3]; People v Bussey, 19 NY3d 231 [2012]; Matter of Marcus C., 46 AD3d 816 [2d Dept, Dec. 18, 2007].) Social Services Law § 384-b (8) (a) (i) dictates, in pertinent part, that a severely abused child is a child who has been found to be abused as a result of a parent’s17 intentional or reckless acts “committed
“is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (Penal Law § 15.05 [3].)
A depraved indifference to human life means “utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not.” (Bussey, 19 NY3d at 236 [where codefendants beat victim for several minutes and appellant helped codefendants transport victim in his vehicle’s trunk to creek 18 miles away, finding appellant did not exhibit depraved indifference to victim’s life]; Marcus C., 46 AD3d at 817 [no depraved indifference mental state where appellant not aware that handgun possessed contained live round; modifying dispositional order to reduce charges].) Serious physical injury is “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (Penal Law § 10.00 [10].)
Given the severe abuse meaning, the court is unconvinced that res ipsa cases lend themselves to severe abuse findings since there is no way to prove whose acts caused the alleged serious physical injury and whether those acts were intention
In Matter of Kayden E. (Luis E.) (88 AD3d 1205 [2011]), a Third Department case, the evidence demonstrated that the subject child’s injuries were life threatening and left her permanently physically and mentally damaged. (See Matter of Kayden E., 88 AD3d at 1206.) The proof also showed that the respondent mother and the respondent father were the only two individuals who had contact with the subject child during the time period that she sustained those injuries. (See id.) In Matter of Kayden E., the evidence established that the respondent father’s explanation for the subject child’s injuries was inconsistent with the expert testimony that determined that the subject child’s trauma was plausibly inflicted within 24 hours prior to her hospital admission, and was not accidental. (Id.) The Otsego County Family Court found, inter alia, that the subject child was severely abused. (Id. at 1206-1207.) Citing its deference to the Otsego County Family Court’s credibility determinations, the Third Department upheld that court’s severe abuse findings. (Id. at 1207.)
Conversely, in Matter of Child (25 Misc 3d 745 [Dec. 10, 2008]), a Washington County Family Court case from the same department, the proof demonstrated that the subject child was gravely ill, presenting with a panoply of injuries related to shaken baby syndrome. (See Matter of Child, 25 Misc 3d at 761.) The evidence showed that the trauma suffered was nonaccidental and had been inflicted within the week prior to the subject child’s hospital admission. (See id. at 762-764.) In Matter of Child, the court found that based upon the proof presented, it was more likely than not that during the early morning hours of January 31, 2008, the subject child suffered her injuries. (Id. at 764-765.) Thus, the Matter of Child court reasoned that using the preponderance of the evidence standard, the respondent mother abused and neglected the subject child by shaking her while the subject child was in her care. (Id.) By contrast, however, the Matter of Child court found that
Finally, in Matter of Jezekiah R.-A. (Edwin R.-E.) (78 AD3d 1550 [Nov. 12, 2010]), a Fourth Department case, the evidence showed that the subject child’s injuries were consistent with shaken baby syndrome, and that some of those injuries were as old as several weeks. (See Matter of Jezekiah R.-A., 78 AD3d at 1550.) The proof demonstrated that the respondent father’s and respondent mother’s explanations for the subject child’s injuries were inconsistent with type and degree of the injuries the subject child suffered. (See id. at 1550-1551.) The Matter of Jezekiah R.-A. court found that since the subject child was in the care of the respondent father, the respondent mother, and his grandparents during the relevant time period, clear and convincing evidence that the respondent father intentionally or recklessly acted with a depraved indifference to human life could not be established. {Id.)
In the court’s view, the Third Department’s decision offers little guidance in its analysis of the issues and the Washington County Family Court’s decision from the same department, which remains unappealed, comports with the Fourth Department’s logic. The court finds the rationale of the Fourth Department’s decision persuasive and chooses to incorporate its reasoning into the court’s critique of the issues in the instant matter. Here, there is no question that child abuse caused Anniyah to sustain serious physical injury which led to her demise. The medical testimony and documentation presented is unequivocal. Notwithstanding, consistent with the very nature of a res ipsa case, the evidence in the case at bar did not show who committed those child abuse acts or what exactly happened to Anniyah to cause her trauma. Especially in light of the heightened standard of proof in a severe abuse case, the court cannot in good conscience enter a derivative severe abuse finding against the respondent mother. Since the evidence revealed that the respondent mother was not Anniyah’s only caretaker
Adjudged, that the petitioning agency met its burden of proof as to every element of derivative neglect; and it is further, adjudged, that the petitioning agency met its burden of proof as to every element of derivative abuse; and it is further, adjudged, that the petitioning agency did not meet its burden of proof as to every element of derivative severe abuse; and it is further, adjudged, that the petitioning agency did not meet its burden of proof as to every element of derivative repeated abuse; and it is therefore, ordered, that a derivative neglect finding against the respondent mother is entered with respect to Amirah L., Anniyah L.’s surviving sibling; and it is further, ordered, that a derivative abuse finding against the respondent mother is entered with respect to Amirah L., Anniyah L.’s surviving sibling; and it is further, ordered, that the court declines to enter a derivative severe abuse finding against the respondent mother with respect to Amirah L., Anniyah L.’s surviving sibling, and dismisses those portions of the petitions in conformity with the reasoning set forth within this decision; and it is further, ordered, that the court declines to enter a derivative repeated abuse finding against the respondent mother with respect to Amirah L., Anniyah L.’s surviving sibling, and dismisses those portions of the petitions in conformity with the reasoning set forth within this decision; and it is further, ordered, that a forensic mental health examination of the respondent mother be prepared in connection with this case; and it is further, ordered, that an investigation and report be prepared in connection with this case; and it is therefore, ordered, that the parties are directed to appear on December 10, 2012 at 9:30 a.m. for a dispositional hearing in the matter.
1.
The court presides over one of two Queens County Family Court “trial parts,” which offer immediate trials, and were formulated to facilitate speedy resolutions in child protective cases.
2.
On November 10, 2011, in order to comport with the strictures of Judiciary Law § 21 and due process principles, the court granted the respondent mother’s and the respondent PLR’s motion for a mistrial. (See Judiciary Law § 21; see also NY Const, art I, § 6.)
3.
Since the respondent PLR chose not to stipulate that he was a person legally responsible for Amirah and Anniyah, and since the court was unable to enter a finding pursuant to section 1051 (a) without deeming the respondent PLR to be a person legally responsible for their care, the court bifurcated the trial and proceeded first against the respondent PLR on the limited issue of his legal status, if any, regarding Amirah and Anniyah. After the petitioning agency met its burden that the respondent PLR was, in fact, a person legally responsible for Amirah’s and Anniyah’s care, the respondent PLR submitted to the court’s jurisdiction, and the court entered an abuse finding against him.
4.
The court notes parenthetically that the respondent mother did not make a motion to dismiss at the close of the petitioning agency’s case.
5.
The court finds worthy of mention that the petitioning agency did not request that the court make findings regarding the petition’s perceptibly lesser included offenses.
6.
The Attorney for the Child’s summations supported an abuse and a neglect finding against the respondent mother. When the court questioned the Attorney for the Child about whether or not the Attorney for the Child supported a severe abuse and/or a repeated abuse finding against the respondent mother, the Attorney for the Child answered in the affirmative and elaborated.
7.
The court finds worthy of mention that in their closing arguments, the parties addressed “severe and repeated abuse” findings, not understanding that there is a distinction between “severe abuse” and “repeated abuse,” and that they are not one and the same. The court will speak to the meaning of these concepts hereinafter.
8.
The petitioning agency’s exhibits No. 1 and No. 2, ORTs, dated March 25, 2010, were admitted into evidence through Ms. Figueroa.
9.
The petitioning agency offered Dr. Hoffman-Rosenfeld’s curriculum vitae into evidence as petitioning agency’s exhibit No. 3, but the court declined to admit the document into evidence.
10.
During the course of the trial, the petitioning agency attempted, without success, to subpoena a certified and delegated copy of Anniyah’s autopsy report to offer into evidence.
11.
The respondent mother’s exhibit A, an employment letter, was admitted into evidence through the respondent mother.
12.
The respondent PLR in this case.
13.
The records indicate that a proper external examination of Anniyah could not be performed due to the urgent nature of Anniyah’s injuries. (Id.)
14.
“One who has no interest in the cause or matter in issue, and who is lawfully competent to testify.” (Black’s Law Dictionary 468 [6th ed 1990].)
15.
In any trial proceeding, the finder of fact, be it judge or jury, is charged with the responsibility of not just listening and accepting the answers that witnesses offer to questions, but must also weigh and consider the behavior and demeanor of those testifying. (See e.g. Matter of Taylor T. [Darren T.], 73 AD3d 1075, 1075 [2d Dept, May 18, 2010] [great deference afforded trial court who is in best position to assess the credibility of the witnesses and the evidence proffered]; Matter of Kai B., 38 AD3d 882, 883 [2d Dept, Mar. 27, 2007] [same]; Matter of Orange County Dept. of Social Servs., 215 AD2d 562, 563 [2d Dept 1995] [upholding trial court’s assessment of child’s credibility and affirming dismissal of abuse proceeding]; Matter of Thomas S., 26 AD3d 389, 389-390 [2d Dept, Feb. 14, 2006].) The court had the unique opportunity to observe the eye contact, body language, and inflection of each witness’s voice, and to contemplate those physical cues along with the other evidence in deciding whether or not the petitioning agency met its burden of proof.
16.
An abuse or neglect finding regarding a deceased child may be the basis for a derivative abuse finding or derivative neglect finding on behalf of that child’s surviving sibling. (See Matter of Child Welfare Admin. v Marsha C., 225 AD2d 766, 766 [2d Dept 1996] [affirming derivative abuse finding for decedent baby’s living sister where evidence showed father inflicted injuries on six-week-old son from which baby died; surviving sibling at risk of abuse].) In the instant case, the court finds that the respondent mother’s abuse and neglect of Anniyah is sufficient to justify findings of derivative abuse and derivative neglect on behalf of Amirah.
17.
The court notes parenthetically that, standing alone, the Social Services Law portion of the relevant section of the severe abuse definition appears not to contemplate a person legally responsible’s acts for the purposes of *1030a severe abuse finding. (See Social Services Law § 384-b [8] [a] [i].) Thus, a court may not enter a severe abuse finding against a person legally responsible for a child’s care (Social Services Law § 384-b [8] [a] [i]; Matter of Leonardo V., Jr. [Leonardo V.], 90 AD3d 1343, 1345 [2d Dept, May 30, 2012] [affirming severe abuse finding regarding appellant’s biological child, but not for child to whom he was not parent; order modified]), but may enter a derivative severe abuse finding against a target child’s sibling’s parent where that parent was convicted of the target child’s murder or manslaughter during a time period where he or she was legally responsible for the target child’s care. (See Social Services Law § 384-b [8] [a] [iii] [A]; see also Matter of Yamillette G., 23 Misc 3d 841, 850-854 [Fam Ct, Kings County, Feb. 6, 2009].) Accordingly, by admission, submission, or even after trial, such a finding would have been inappropriate against the respondent PLR with respect to Amirah.