Opinion
NA 02957/12
03-03-2015
In the Matter of A.L., A Child under Eighteen Years of Age Alleged to be Severely Abused under SSL Section 384(b) and Abused and Neglected under Article 10 of the FCA by v. H.L., Y.L., Respondents.
Kelley Burns, Esq. for Petitioner, Commissioner of the Administration for Children's Services Ian Spiridigliozzi, Esq., Legal Aid Society Juvenile Rights Division, Attorney for the Children Amber Khan, Esq., Center for Family Representation, for the respondent mother Alan Cabelly, Esq., for the respondent father.
Kelley Burns, Esq. for Petitioner, Commissioner of the Administration for Children's Services
Ian Spiridigliozzi, Esq., Legal Aid Society Juvenile Rights Division, Attorney for the Children
Amber Khan, Esq., Center for Family Representation, for the respondent mother
Alan Cabelly, Esq., for the respondent father.
Marybeth S. Richroath, J.
On or about October 22, 2007, Annie suffered injuries which subsequently took her life. Her mother and father were arrested, charged with homicide and incarcerated for a significant period of time pre-trial. On October 30, 2008, A. L., the subject child of this proceeding, was born. While her parents were incarcerated, family friends took care of A. L..
On February 1, 2012, the Administration for Children's Services filed a petition charging respondent mother and respondent father with abuse of A. L., under Article 10 of the Family Court Act, based upon the actions which caused the death of her sibling, Annie. At some point respondent mother was released from jail while respondent father's case proceeded to trial in Supreme Court, Criminal Term. In January 2013 it was reported to this Court that the criminal case against respondent mother had been dismissed. On February 2, 2013, respondent father was convicted, after jury trial, of Manslaughter in the Second Degree and Endangering the Welfare of a Child, in connection with the death of his daughter Annie. Respondent father is serving a state prison sentence based upon that conviction.
After respondent father's conviction, amended petitions were filed on April 16, 2013 and July 10, 2013 alleging that respondents severely abused A. L. under the Social Services Law Section 384(b). By written decision dated October 23, 2013, the Court granted a motion for summary judgement with respect to respondent father and entered a finding that A.L. was a severely abused child within the Social Services Law Section 384-b(8)(a)(iii)(A) in that the respondent father had been convicted of Manslaughter in the Second Degree in violation of P.L. Section 125.15 and the victim of the crime was the sibling of the subject child.
The case against respondent mother proceeded to fact-finding on November 25, 2013. On that date the agency presented its case: eleven documents received into evidence and the testimony of the caseworker. After the agency rested, the Court considered and denied respondent mother's prima facie motion. On January 31, 2014 and April 10, 2014, respondent mother presented her case, which consisted of the testimony from Helen Z. and respondent mother herself as well as two documents received into evidence. The Attorney for the Child presented the testimony of the medical examiner, which was taken on November 7, 2014, followed by summations.
THE PRESENTMENT AGENCY'S CASE
The caseworker testified that she responded to Flushing Hospital on October 23, 2007 and spoke with respondent mother with the aid of a Chinese interpreter provided by the hospital. The caseworker said that when she asked the mother what happened over the day before the child came to the hospital, respondent mother said that she woke up between 7 a.m. and 9 a.m., she fed the baby, the baby was ok, she burped her and put her back to sleep. The baby got up again about 12 Noon and the mother said that she fed the baby between 2-3 ounces of milk, she burped the baby and put the baby back to sleep. Between 4 and 5 p.m. the baby got up again, she fed and burped the baby and put her back to sleep. The next time the baby woke up was about 9:45 p.m. She fed the baby, burped the baby, the baby was fine and went back to sleep. Respondent mother stated again that about 9:45 p.m., the baby was fine. At about midnight, respondent mother said that she woke up and looked at the baby. The baby would not feed and looked black and blue. She heard a gurgling sound. She called the birth father and he did CPR on the baby.
The caseworker asked the mother how the baby sustained the injuries that brought her to the hospital. Respondent mother told the caseworker that she had "no idea." Specifically, the caseworker reported that the mother told her that mother and father were the sole caretakers of the baby and that no one else watched or cared for the baby. Respondent mother denied shaking or dropping the baby and denied that respondent father had shaken or dropped the baby. The caseworker observed that on October 23, 2007 the mother's affect was flat, she was not crying, and that the child was in a hospital room on machines and not breathing on her own.
The caseworker testified that she next met with respondent mother at the case address on October 29, 2007. The caseworker was present at the address with a Chinese interpreter. The caseworker observed that the parents resided in one room that was rented from the landlord and in which they resided together with Annie before she was taken to the hospital. The parents and Annie shared bathroom and kitchen facilities with the other residents of the apartment and the landlord. Respondent father declined to speak with the caseworker upon advice of counsel. When the caseworker tried to clarify where the child had been receiving medical care prior to her hospitalization, she was told New York Hospital Queens. However, the caseworker reported that the parents were not forthcoming with information. The mother was sitting on a queen bed in the room, staring at the wall. Her affect was very flat. Respondent father was sitting on a twin bed also in the room. The caseworker was told that the baby slept in the queen bed with the mother.
The caseworker's next contact with the family was on December 18, 2007. She went with an interpreter to the case address and saw respondent mother and respondent father. The parents told her that they could not verify anything about the child's pediatrician because they had disposed of all of the baby's papers and things that morning. The caseworker noted that the baby things she had noticed in the room during her first visit were gone, and that the twin bed was also no longer in the room. The parents told her about the funeral arrangements made for Annie.
Upon cross examination by the child's attorney, the caseworker testified that she had been told by the mother that Annie had seen the doctor about a month prior to her death, and that prior to the night before she was brought to the hospital, the child had been "fine."
The medical records from Flushing Hospital were received into evidence as Petitioner's 1 in Evidence. The intial report of "present illness" states "two month old female full term baby brought to emergency room by EMS because baby stopped breathing. As per parents, baby was fed at 10 p.m. and put to sleep, then a little before 1 a.m., (about feeding time) father went to baby's room and found baby unresponsive, he picked her up and felt/heard her [illegible]. At that point mother called the landlord and EMS was called." Petitioner's 1 in Evidence, "Admission History and Physical Examination." History was further outlined in a Consultation Report prepared by Dr. Kupferman. He used a Mandarin interpreter, a nurse from the hospital, to take the history from the mother. Ms. L. told Dr. Kupferman through the interpreter that "Annie [was] a two month old female previously health baby - pregnancy was uncomplicated - delivery uncomplicated - during the first two months of life, mother denies having any disease nor to be a colicky' baby. As per mom, child is not cranky - she did have no concerns till the day of her admission. Her prior medical doctor was Dr. Li, and she only went twice to his office and those were for check up (denies any medical problem). The day of the admission, the child was sleeping with her mother, in the middle of the night the mother woke up to feed her (she was bottle feeding, no breast feeding since one month old). The mother gave the baby to the father so he can bring the bottle and feed her. According to the mother, the father was not careful and bump the baby's head against a table. The baby cried once and then stop breathing. They were afraid so they call the home owner to call 911. The home owner did CPR (when doctor asked the mother to clarify what did he do, she said that he only blew up some air into her mouth, denies shaking movements)." Id. , Dr. Kupferman's Consultation Report pp. 1-2.
The doctor's consultation report went on: "I need to clarify that after I finished the medical history, the mother went back to PICU with her partner (the father of the baby) and she came back asking me if she can tell me the history once again because she didn't tell me it the way that it was (I need to clarify that during the first history I ask the mother to corroborate the history and to check for understanding four times and she was keep (sic) repeating the same history.) After returning from PICU she told me that the baby was crying - Mom fed the baby and the baby choked - she gave the baby to the father because she was afraid - the father drop the baby against the table because he was not careful- parents call the owner of the apartment and he blew up air in her mouth for "CPR" and he called 911." Id. at 2-3.
The doctor's consultation report then reviewed physical findings, noting that Annie came to the hospital in cardiopulmonary arrest and was resuscitated, that the CT scan of her head showed a skull fracture with subdural hematoma/cerebral edema with displacement of middle line. Id. at 3. The ophthmalogical report showed bilateral, profused, deep retinal hemorrhages, seen at all levels of the retina. Id. The doctor's conclusion was that the parents' explanation for the baby's injuries was inconsistent with the serious nature of the injuries suffered by the baby and that the medical team needed to consider that the injuries may have been inflicted. Id. at 5-6.
The medical examiner's report was received as Petitioner's 2 in Evidence. The cause of death was "shaking with blunt impact of head with skull fracture and subdural hemorrhage." Petitioner's 2 in Evidence, Report of Autopsy. The "manner of death" was "homicide." Id. Aside from the head injuries noted above, and the retinal hemorrhages noted in the medical records, the autopsy report also noted leg fractures, "bi-lateral distal femoral cornu fractures and distal left tibia fracture" as well as a "remote blunt impact of torso, rib fracture, healing." Id.
The criminal court complaint was received into evidence as Petitioner's 4 in Evidence. In that complaint, "[d]eponent states that on October 23, 2007, defendant H. L. and Defendant Y. L. admitted that the complainant [Annie] was home alone with them during the day and afternoon of October 22, 2007 and that the complainant was in good health, behaved normally and ate normally. Deponent states that defendant H. L. and Defendant Y. L. stated that the complainant remained in good health, behaved normally and ate normally until approximately 12:43 a.m. on October 23, 2007.
Deponent states that he is informed by Yong D. , that he is the defendant H. L.'s close friend and that he received a phone call from defendant H. L. on October 22, 2007 in the late afternoon during which the defendant H. L. told him that the complainant was sick and requested that Yong D. come over to take the complainant for a check-up. Deponent states that he is informed by Yong D. that he arrived at the defendants' residence at approximately 8:00 p.m. and that he observed the complainant to be sweating and not moving her arms and legs. Deponent states that he is informed by Yong D. that from the time he arrived until the time that 911 was called at 1:00 a.m. on October 23, 2007 (approximately six hours), he never heard [this part of the complaint received into evidence is cut off and illegible] he only heard the complainant make distressed, gurgle sounds and that the complainant appeared uncomfortable and sick throughout the evening." Petitioner's 4 in Evidence, paragraphs 6-7.
After a jury convicted H. L. of Manslaughter in the Second Degree, after a trial which included his testimony, there was a sentencing hearing on March 4, 2013, before Justice Richard Buchter in Supreme Court, Criminal Term. Respondent mother, Y. L., spoke through an interpreter, at her request, at that hearing. She said: "Honorable Judge Buchter, thank you for allowing me this opportunity to express my heartfelt thoughts. During the trial that we had I was prepared to testify for my husband at the trial.
THE COURT: All right. This is all in the letter, is that correct? Is there anything that you have to say which I have not already read?
Y. L. THROUGH INTERPRETER: I really believe my husband was a very good husband and a very good father. He loved our baby very much. There was no way that he would intentionally hurt our baby. Because when Annie was still alive, when we were together, he would always say, Annie is my life. So I believe, I totally believe that my husband did not intentionally try to hurt Annie. Because what happened that day, I was there also. I witnessed everything. So I knew everything that happened that day. During that time I just gave birth to our baby. He even told me that he was going to help me take care of the baby; that I should stay in bed for couple months. He was going to take care of both of us. And he was going to delay going out to find work because of, for three months he was going to stay at home and take care of both me and the baby. And my husband was a very good father. He would never intentionally hurt our baby. I just want the Judge to please be lenient on my husband. Be lenient on your sentence." Petitioner's 8 in Evidence, pp. 7-8.
At the same sentencing hearing, respondent father apparently repeated many of the things he testified to at the jury trial, saying that the baby was sick and that he had never intentionally hurt the baby, that there was an accident and that he mourned being unable to be a father to either of his daughters. Id. at 9-17. The Judge interrupted respondent father saying, "Mr. L., we're not going to try the case again. The jury heard the story. They didn't believe it and I don't believe it. You want to tell me how the baby's head got cracked? How her eyes filled up with blood? The other fractures she had?" Id. at 13. Respondent father went on to say, "I really, I really believe the baby was injuried because the baby was ill. And that's why she had those injuries...I did not shake the baby or try to do anything to hurt the baby." Id. at 13-14. The father and his attorney referenced evidence at the criminal trial which had been introduced suggesting that the baby had a condition of osteogenesis imperfecta or fragile bones, as an explanation for the child's injuries. Id. The Court referenced expert testimony from a doctor from Johns Hopkins, apparently the prosecution's expert refuting that position, which had been received at the trial, and obviously credited by the jury. In sum, the Court rejected respondent father's statements stating, "I don't believe a word you say" and pronounced the maximum sentence available for the crime for which he was convicted, 5 to 15 years. Id. at 27.
The final exhibit received upon the presentment agency's case was a supplemental report from the Office of the Chief Medical Examiner, which outlined the basis to reject any suggestion that the child suffered from having fragile bones, in that the medical examiner physically examined the child's bones and found no evidence that she suffered from osteogenesis imperfecta. Petitioner's 11 in Evidence.
RESPONDENT MOTHER'S CASE
Respondent mother entered into evidence the certificate of disposition in her criminal case, which documented the fact that her case was dismissed and sealed, as well as the transcript of the record made by the Assistant District Attorney when she moved to dismiss respondent mother's case. Respondent Mother's A and B in Evidence.
Helen Z. testified for respondent mother. Ms. Z. stated that she is the landlord and Ms. L. rents a room in her home. She said that they had lived next to each other and been neighbors for a long time. Ms. Z. testified that in October 2007, Y. L. resided in that room with H. L., the father of the child, and the baby. Ms. Z. testified that in October 2007, respondent mother was rather weak, having just given birth to a child, and was lying in bed and taking frequent rests.
Ms. Z. testified that she remembered October 23, 2007, that she was asleep, but was awoken by respondent mother who knocked on her door. Ms. L. was crying and said, "I don't know what happened to my child - can you take a look?" When Ms. Z. entered the L.'s room, Mr. L. was holding the child. Ms. Z. told him to put the baby flat on the bed and to do mouth to mouth while she called 911. Ms. Z. said that respondent mother looked "horribly worried and crying." When the police came, Ms. Z. carried the baby to the ambulance and she noted that Annie was "very light, like a piece of paper." Mr. and Ms. L. also went in the ambulance to the hospital.
At the hospital both Mr and Ms. L. were very emotionally agitated, "we were praying." After Annie passed away, Ms. Z. noted that every time Ms. L. spoke about the child she would cry. Ms. Z. noted that Mr. L. tried to calm the mother down. Ms. Z. also stated that she tried to calm the mother down. After the police "took her away" and Ms. Z. found out that Ms. L. was pregnant with another child, Ms. Z. agreed to care for that child. Ms. Z. testified that she has cared for A. since her birth. While respondent mother was incarcerated, Ms. Z. brought A. L. to visit her on a weekly basis. Ms. Z. also testified that Ms. L. asked her for books about how to raise a child and Ms. Z. brought those books to Ms. L..
On cross examination Ms. Z. denied speaking with the ACS caseworker and did not recognize her in court. She testified that she was interviewed at the precinct one time by the police and that she talked to the police at least one other time when they came to her home. During cross examination the ACS attorney tried to establish whether Ms. Z. was present in her room during the day/evening before Ms. L. woke her asking her for help and Ms. Z. could not remember very much at all about anything prior to Ms. L. awakening her and taking Annie to the hospital. Ms. Z. described the child as having her eyes closed like a "natural sleep." When she told the father to give the child mouth to mouth, he did, and the baby threw up "little pieces of tofu." The child was not breathing and was not answering, and her "face looked like a child having natural sleep." When she called 911, Ms. Z. said that she did not tell the police that the child was not breathing, she told the police that "the child was sick."
Ms. Z. testified that she was a witness for the father at his criminal trial and that the mother's attorney had found her - the mother did not ask her to testify. She agreed that she was still good friends with respondent mother and that she calls her "Aunty."
On cross examination by the child's attorney, Ms Z. testified that when the mother came to wake her on the night of October 23, 2007, she was accompanied by Yong D., a friend of Mr. and Ms. L..
Respondent mother testified on her own behalf. She testified on direct, that she was the mother of Annie and A. L.. She stated that Annie was born on August 13, 2007. Ms. L. testified that on the day before Annie went to the hospital, (October 22, 2007) she was "weak and pale" and resting on the bed. Ms. L. testified that she had "just finished giving birth and even walking was difficult for [her]." Ms. L. testified that the father was taking care of Annie as Ms. L. slept on the bed, but Annie was lying next to Ms. L. and when the mother was awake she played with Annie for a little while. Ms. L. testified that at about 12:45 am on October 23, 2007, Annie woke up and Ms. L. carried the baby, and the baby drank milk, then she hiccup'ed "and then she softened." When asked whether prior to 12:45 am on October 23, 2007 Ms. L. had any concerns about Annie's health, she testified that about 7 or 8 pm on the evening of October 22, 2007 she had taken Annie's temperature, and "it was normal" but she had called her parents' phone in China and her mother told her that the temperature was okay. Ms. L. testified that only she and Mr. L. had taken care of Annie that day.
"After Annie drank milk and softened" Ms. L. testified that her "husband took over [her] daughter" and Ms. L. went out and called for the landlord, Aunty Z.. She explained that her husband was calling "Leenie, Leenie" and "Nene, Nene" and she went and called the landlord because they were "very nervous about what happened to the child." Ms. L. explained that Ms. Z. called the police because she spoke English and after the ambulance came, Ms. L., Mr. L. and Ms. Z. took Annie to the hospital.
Ms. L.'s attorney asked Ms. L., "why did Annie get sick?" Ms. L. testified, "I don't know. I couldn't see inside my daughter's body, so I had no clue." When asked whether she spoke with anyone from the hospital or ACS while Annie was in the hospital, she testified that she thought that someone talked with her but "I don't remember what we talked about." She testified that she was very distressed, and said "I don't know why something was happening with my daughter."
Ms. L. testified that her daughter A. L. was born on October 30, 2008, while she was incarcerated. She testified that she made arrangements for A. L. to be cared for by Ms. Z., so that ACS did not have to be involved. She testified that Ms. Z. brought A. L. to see her while she was "inside" and that she was in counseling in jail and that she read books from a parenting course from Ms. Z..
When asked whether two months after the child was born was a lot of time to rest after the birth of a child, Ms. L. testified that her parents mentioned that she should rest for a month after the birth of the child, and that there was a Chinese word for that rest.
On cross examination Ms. L. testified that only her husband, Mr. L. and she took care of Annie and that because she "was feeling weak" her husband "mostly did the work." She denied that Annie was colicky and testified that she was very cute and very quiet, sleeping, playing and drinking milk, just like other children. When asked if Annie was "healthy" respondent mother replied, "before this I don't know if she was sick. I can't see the flesh inside her." When asked how often Annie ate, Ms. L. testified, "sometimes I'm sleeping, I'm not so sure." Ms. L. testified that L. D. came to visit on the evening of October 22, 2007. When asked multiple times by the ACS lawyer whether Annie had a fever or temperature that evening, respondent mother testified that she checked the temperature, and she called her parents in China, and Annie did not have a temperature and was not "overheating" that day. Ms. L. denied that Annie felt warm and testified that "I knew this temperature was not a fever." Ms. L. testified that she did not tell Mr. Yong D. that Annie was warm; indeed, she testified that he was right there when she measured the temperature and "it was confirmed, no fever." Ms. L. testified that after they confirmed that Annie had no fever, she cooked food for Mr. Yong D. and they ate together.
Ms. L. testified that she did not speak with individuals at the hospital, stating that she did not speak English. She denied being assisted by a Mandarin speaking nurse. She said that they sent a Mandarin speaking doctor to speak with her. As the ACS attorney confronted respondent mother with her statements memorialized in the hospital records, respondent mother repeatedly requested that the questions be repeated, stated that she did not understand, asked "what is it that you are asking" and testified that she did not remember. When the ACS attorney specifically asked the mother whether she had told staff at the hospital that "the father dropped the baby because he was not careful and she hit her head on the table" respondent mother replied, "I did not say that." When the ACS attorney asked whether the mother had told a police officer that the father "accidentally hit the baby's head against a night stand when giving the baby CPR," the mother testified, "I did not see it."
Respondent mother requested a Fu Chow interpreter, and the Court made every effort to secure one throughout the trial. When the Fu Chow interpreter was present for respondent mother's testimony, he told the Court that he was interpreting in Mandarin, and respondent mother did not take issue with his translation. On at least one occasion, a different Mandarin interpreter was present. Because the mother had made complaints during pre-trial proceedings with respect to this interpreter, both the mother's counsel and the agency, had individuals fluent in Mandarin to insure the integrity of the translation. They did not raise issues with the translation, even when the mother was assisted by the Mandarin interpreter and not the Fu Chow interpreter. Moreover, on more than one occasion, respondent mother indicated her understanding of the English being spoken by the attorney questioning her, in advance of any translation into Chinese.
Respondent mother testified that the police took her from the hospital and accused her of injuring the child, and that she was very afraid because they spoke to her very loudly. Ms. L. testified that "there were a lot of them" that she "was crying" and she wanted to go back to be with her daughter.
When asked whether she had gone to get Ms. Z. because Annie was not breathing, Ms. L. testified, "I only know that she had softened." Ms. L. testified that Mr. L. had quit his job to stay home with her and help her care for Annie. Ms. L. testified, "I was very weak" and "there was nothing I could do." Ms. L. repeatedly testified that the child "hiccupped and softened," that the father took the baby and "was nervous" that Ms. L. ran and got Aunty Z., and Ms. L. also "was nervous." When asked a number of times whether "softened" meant that the child was no longer breathing, Ms. L. repeated that the baby "softened." Ms. L. testified that she did not know whether the baby was not breathing. She testified that Annie's eyes were closed and that she did not know whether Annie was moving her arms and legs because her father was holding her.
Ms. L. testified that Annie was inside their room while she cooked dinner, and that about 9 pm Annie was hungry and she fed Annie, but then she testified, "I do not remember for sure, but I think yes." She testified that she wiped the child off with a rag and put her back to bed. When questioned about the "rag" respondent mother testified that she did not know if it was her husband who wiped Annie with the rag, she was not sure.
Ms. L. testified that she wanted to be a witness for her husband at his criminal trial, but "they would not let me be a witness." When questioned about the statements she made in Court at her husband's sentencing, Ms. L. testified that she did say that her husband was a very good husband, that he was always responsible and loved his daughter. She testified that she did tell the Criminal Court judge that she was present and saw everything that day. Ms. L. testified, "on that day I did not see my husband hurt my child." The mother agreed that she made these statements after her husband had been convicted of Manslaughter for the death of Annie, and testified, "I had not seen him hurting the child so I believed so."
Upon cross examination by the child's attorney, Ms. L. denied that she told an investigator at the hospital that Annie hit her head. Ms. L. testified that she only remembered the "director telling [her] Annie had a cut inside the head." The mother again denied making those statements and stated that Annie never had any bruising until after the surgery. She denied shaking or dropping Annie and stated "I have never seen him do anything to hurt the child."
Respondent mother's testimony continued to another date and she described how she and the father fed Annie together, mother holding the baby and father holding the bottle, Annie drinking, when the baby "softened." Ms. L. testified "I don't know why she softened. I'm not a doctor." Ms. L. also denied that Yong D. was present in the apartment because there had been anything wrong with Annie earlier in the day. To the contrary, Ms. L. insisted that Annie did not have a fever earlier in the evening and that once Mr. Yong D. was there, it would have been impolite to ask him to leave.
CASE PRESENTED BY ATTORNEY FOR THE CHILD
Dr. Kristen Landi, a level two medical examiner, employed at the Office of the Chief Medical Examiner in New York City for eleven years, was called by the attorney for the child and qualified as an expert in forensic pediatric pathology on consent.
Dr. Landi testified that the case of Annie was assigned to her on October 29, 2007 and that aside from her own examination of the baby's body, she reviewed Annie's medical records from the hospital, the information provided by the medical investigator, photos of the child and full body x-rays. The child had skull fractures, fractures of the thigh bones, femurs and lower tibia. The doctor found that Annie had numerous, bi-lateral retinal hemorrhages, bleeding all the way through the retina at every level. She testified that Annie had injuries to the nerve roots coming out of the spine where the neck attaches to the head. All of these injuries had occurred within 24-48 hours of the time Annie was taken to the hospital. She also had healing rib fractures, estimated as about 14 days old.
The doctor ruled out the possibility that Annie suffered from any congenital defect which would have explained normal handling of a child to have caused these injuries, including osteogenesis imperfecta. The doctor testified that these injuries could not have happened spontaneously. The doctor also testified that the injuries had not occurred as a result of resuscitation efforts, nor were they consistent with an accidental bump of the head on a piece of furniture. The doctor explained that the amount of force necessary to result in the injuries suffered by Annie were consistent with a motor vehicle accident or a fall of several stories from a building. Moreover, the doctor testified that the injuries showed that there had been multiple points of impact on Annie's head, which is inconsistent with a one-time accidental bumping of a child's head on a piece of furniture.
The doctor testified that the injuries were most consistent with whip lash in conjunction with blunt force trauma and impact. The cause of death certified in the autopsy report was "shaking with blunt impact of head with skull fracture and subdural hemorrhage" and the manner of death was "homicide." Petitioner's 2 in Evidence at 1. The doctor testified that the majority of the injuries were traumatic, having happened immediately before the child's entry into the hospital, or perhaps within 24-48 hours of that entry. This included the skull fracture, injuries to the nerve roots of the upper neck, retinal hemorrhages and leg fractures.
The rib fractures showed signs of healing, and were consistent with injury about 14 days before the child entered the hospital.The doctor testified that the rib fractures were consistent with squeezing the baby's body during a shaking incident.
The doctor testified that based upon the injuries suffered by Annie, she would not have been behaving normally after the incident and before she came to the hospital. She would have been irritable and fussy, would not have been eating normally and would have appeared generally unwell. She may or may not have run a temperature.
COURT'S DECISION
The Court fully credited the testimony of the caseworker, the testimony of the medical examiner and the documentary evidence received at the trial. The Court credited some of Helen Z.'s testimony, including the events that lead to Annie being transported to the hospital by ambulance in the early morning hours of October 23, 2007, but did not credit her testimony concerning earlier events during the evening of October 22, 2007, including that she either was not present or heard nothing.
The Court did not credit the mother's testimony at the trial. Giving her some allowance for the fact that the trial took place more than five years after the events that took Annie's life, Ms. L.'s testimony appeared rehearsed, and her stubborn refusal to explain to any of the lawyers questioning her (including her own) what she meant when she insisted that Annie "softened" reinforced that conclusion. In answer to multiple questions by multiple attorneys phrased in multiple ways, she robotically repeated that the baby softened. Ms. L. was also hostile to the entire process and that hostility came through clearly throughout her testimony. Her insistence that she did nothing, her husband did nothing and somehow her baby died of traumatic inflicted injuries that spontaneously occurred is simply incredible, self-serving and entirely rejected by the Court.
Ms. L. denied much of what was recorded in the records at the time. However, she admitted that she and her husband, Mr. L., were Annie's only caretakers. Ms. L. testified that she was resting in bed for the time between Annie's birth and her death and that Mr. L. was not working; he was home taking care of Ms. L. and Annie. Mr. L., Ms. L. and Annie resided in one room; they shared kitchen facilities with their landlord. Ms. L. testified that neither she nor Mr. L. did anything to harm Annie, and that she could not understand why Annie had died. With the overwhelming evidence showing that Annie suffered multiple assaults resulting in multiple traumatic injuries to her tiny body over her short life of just over two months, her account is simply not credible.
An abused child is "a child less than eighteen years of age whose parent ... 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...." FCA Section 1012(e)(i). Annie was the daughter of Mr. L. and Ms. L. and she died as a result of injuries determined by the medical examiner to be consistent with homicide, not an accident and not a disease. "Proof of the abuse ... of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of ... the respondent. FCA Section 1046(a)(i). A. L., the subject child of this proceeding, is the daughter of respondent mother and the sibling of Annie.
Further, "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 ... shall be prima facie evidence of child abuse or neglect ...of the parent...." FCA Section 1046(a)(ii). The agency, through the testimony of the caseworker and the documents received into evidence at this proceeding, showed that Annie died as a result of shaking, blunt force trauma to the head, with multiple sites of injury. Corroborating that this was inflicted injury was the evidence of the fractures to the child's legs, the deep retinal hemorrhages throughout the child's eyes, and older fractures of the child's ribs. The testimony of the caseworker provided evidence that respondent mother and father were the sole caretakers of the child, and that they lived together with the child in one room. The agency met its prima facie burden of showing that Annie died from injuries sustained in the care of the parents, its prima facie burden of res ipsa. Matter of Philip M., 82 NY2d 238 (1993) ; Matter of Shade B., 99 AD3d 1001 (2nd Dept. 2012); Matter of Aaron McC., 65 AD3d 1149 (2nd Dept. 2009); Matter of Fantaysia L., 36 AD3d 813 (2nd Dept. 2007).
At that juncture the burden of going forward moved to respondent mother, to show that the injuries were not inflicted, but had happened accidentally, or that the child was not in her care when the injuries happened. Respondent mother did present evidence and did testify. She reiterated that the child was in her care and/or the father's care for all of her short life. She insisted that she did not know how the child sustained the injuries that took her life. She testified that the baby "softened" without explaining what that meant. She testified that she never hurt the baby and that the father was a good father and a good husband who would not harm his daughter. She suggested that the child had something wrong inside her, but provided no records or testimony to rebut the medical examiner's expert opinion that the child had no medical condition or defect which would explain her injuries. In short, respondent mother presented evidence that she had no idea how it was that her daughter sustained the injuries which took her life. In no way did the mother provide any credible evidence to rebut the agency's res ipsa case.
The evidence presented by the child's attorney, served to strengthen, through in person testimony by a well-qualified expert, which was fully credited by the court, the medical examiner's conclusion that the manner of the child's death had been a homicide, caused by repeated and violent shaking together with blunt force trauma to the baby's head.
The agency met its burden of showing that Annie was abused. At this juncture, the Court must consider whether the defects in parenting judgement which lead to Annie's abuse may have been cured through cooperation in services, passage of time or some other circumstance. Respondent mother testified that she made arrangements for A. L. to be cared for by a trusted friend, Helen Z., and that she read books on parenting while she was in jail. In addition, the Court is well aware that the events which took Annie's life took place in 2007, and the instant petitions were filed in 2012 and 2013. However, the evidence presented shows that respondent mother's defects in parenting judgement continue to the present day. The agency presented respondent mother's statements in support of her husband at his sentencing hearing including her statements there and at this trial that she wanted to testify on his behalf at his criminal trial, but "they" would not permit her. These statements attested to what a good husband and father Mr. L. is, how he loved his daughter and would never intentionally harm her. Ms. L.'s statements were all made after Mr. L. had been convicted, after a jury trial, beyond a reasonable doubt, of Manslaughter in the Second Degree in connection with Annie's death. These statements, up to and including respondent mother's testimony in the instant trial, all show that respondent mother's parenting judgement continues to be impaired. Therefore, A. L. is derivatively abused. Matter of Harmony M.E. 121 AD3d 677 (2d Dept. 2014); Matter of Ilonni I., 119 AD3d 997 (3rd Dept. 2014); Matter of Devontay M., 56 AD3d 561 (2nd Dept. 2008). Enter finding of abuse against respondent mother.
The agency and the child's attorney argue that the Court should make a finding of severe or repeated abuse by clear and convincing evidence against respondent mother. "A child is severely abused by ... her parent if (i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law." SSL Section 384-b(8)(a)(i). Death is included in the definition of serious physical injury. PL Section 10.00 (10).
Repeated abuse is covered by SSL Section 384-b(8)(b), requires that there be more than one finding of abuse. There is no allegation that A. has been directly abused by respondent mother; indeed A. L. has never resided in respondent mother's care and the allegations are derivative. Therefore, repeated abuse under SSL Section 384-b is inapposite.
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It should be noted that the Court has already made a finding of severe abuse against Mr. L. based upon his conviction of Manslaughter in Annie's death and A. L.'s status as Annie's sibling. SSL Section 384-b (8)(a)(iii)(A). Mr. L. was convicted after a jury trial at which he testified. He is currently incarcerated in state prison as a result of that conviction.
After Ms. L. had served four years in jail, the Queens District Attorney's Office dismissed the indictment against her prior to trial. During the proceeding which resulted in the dismissal, the People asked that Ms. L. be sworn and state under oath that she had done nothing to her baby. Ms. L. refused. She stated, "Why do they - why do they want me to —why do they want me to speak under oath? I didn't do anything wrong. I'm innocent and I didn't do anything wrong." Respondent's B in Evidence at 4. After consultation with counsel and a bench conference, the Court inquired of Ms. L.:
"THE COURT: Miss L., I just want to ask you, you stated that you didn't shake the baby or did anything to cause the baby injury in any way. Is that true?
THE DEFENDANT: I did not do anything to harm my— I did not do anything to harm my baby. I — my husband also did not do anything." Id.
It is noteworthy that Ms. L. was not sworn for this colloquy.
The record made by the Assistant District Attorney indicated: "two [of Annie's] treating physicians ... told [the ADA] that they believed that Annie had brain injuries that were so severe at the time that she was injured that immediate medical intervention would likely not have substantially changed her outcome." Respondent's B in Evidence at 5. The Assistant District Attorney stated that she had informed defense counsel of this information, and in her opinion, "this information impacts the sustainability of the manslaughter charge for defendant Y. L.." Id. at 6. The manslaughter count was then dismissed. The Assistant District Attorney then made the following record, "in spite of the fact that the doctors are saying that given the severity of the injury, immediate medical intervention would not have mattered, it's my position that Y. L., she watched her baby deteriorate for a period of hours and failed to call 911 or a doctor. So as such, I believe that an endangering charge could be sustained at trial; however, during the pendency of this case, Miss L. served four years in jail which exceeds the maximum on the endangering charge...so I believe in the interests of justice it's the right thing to do is dismiss the endangering charge against her." Id. While the criminal charges against Ms. L. were dismissed, it is clear from this record that they were not dismissed because the prosecutor believed that she was innocent.
The evidence before this court showed that Annie L.'s ribs were fractured about two weeks prior to the incident that resulted in her hospitalization and death. Fractured ribs are painful; just breathing can cause pain, and handling to change clothing or a diaper is painful. The medical examiner testified that significant force is required to fracture the ribs of an infant of this age. Normal handling would not have caused that injury. The medical examiner also testified to her opinion that after sustaining that injury the baby would have expressed that pain through crying or fussiness.
Respondent mother and the father of the child lived together in one room and were the sole caretakers of the child. One of them exerted significant enough force upon the child, to break her ribs, probably shaking her in the process. Ms. L. insists that she was resting in bed, recovering from her pregnancy and giving birth to Annie. Is it possible that the child was injured with that degree of force and Ms. L. was unaware? Based upon the evidence before the Court, based upon the combativeness of Ms. L. during her testimony both here and in criminal court, the Court rejects that as a possibility. Ms. L. either participated herself, or watched as Mr. L. squeezed Annie until her ribs broke. She then did nothing to assist the child. She did not summon help; she did not call the police; she did not take the child to a doctor or hospital. She let the child suffer.
Two weeks after this incident, there was another, final incident. Respondent mother and the father of the child were still residing in that single room. One of them shook the child with force equivalent to a car accident or a fall of several stories from a building, sufficient to fracture two of the strongest bones in the infant's body, her femurs, both of them, and then slammed the infant's head multiple times into a solid object. The injuries suffered by Annie did not occur spontaneously. They did not result from an accidental bump into a nightstand. The force of a fall from several stories high in a building - the force of a car accident - these are monumental forces. These forces and the injuries sustained in their wake could not go unobserved by the other occupant of that single room. These forces did not occur quietly.
Mr. L. has been convicted of manslaughter in Annie's death, and the court will infer based upon that conviction beyond a reasonable doubt, that he was the actor. Ms. L. had an obligation to do something to protect her daughter from the man who broke her ribs. She had an obligation to seek out medical care. She did nothing. When Annie was being shaken and her head smashed into a solid object multiple times, causing the devastating injuries that killed her, Ms. L. laid in the bed and did nothing. She did not intervene to stop or try to stop her husband, and the child's father, from hurting the child. She did not call the police. She did not call an ambulance. She did not try to take the child to a doctor. She did not seek assistance from an English speaking neighbor to take the child for medical treatment.
Ms. L. testified that she was weak and recovering from childbirth, two months after Annie's birth. She admitted, however, that during the evening before the child went to the hospital, she cooked a meal for herself, her husband and a guest. The three adults ate that meal together. Though capable of cooking a meal and eating with her husband and a friend, Ms. L. did not seek any medical assistance for Annie until the baby "softened." The Court credits the medical records that Annie stopped breathing prior to the parents taking her to the hospital. So, Ms. L. entertained her husband and his guest as her baby lay dying and did not seek medical attention until she stopped breathing.
Ms. L.'s failure to act in the face of the devastating attack that had been visited upon her infant daughter in her presence constituted reckless behavior with depraved indifference to human life. While the doctors may opine that immediate medical attention would not have prevented Annie's inevitable death, Ms. L. did not know that. She chose not to protect her infant, not to attempt to intervene as her husband perpetrated his deadly assault. Had she intervened, could she have prevented some of the most devastating injuries? We will never know. Had she sought help immediately after Annie's ribs were fractured, could she have prevented Annie's death? We will never know. She chose not to seek medical attention for her daughter. These actions and lack of action by the mother of this suffering infant were reckless and evinced a depraved indifference to human life. In re Ne-Ashia 34 Misc 3d 1233(A) (Family Court, Bronx County 2012); aff'd 99 AD3d 616 (1st Dept. 2012); see also Matter of Amirah L. 118 AD3d 792 (2d Dept. 2014).
The question is whether the social services law contemplates a derivative finding of severe abuse where the subject child is not the child who was actually harmed, but a child who would qualify for a derivative finding under the Family Court Act. FCA 1046(a)(i). The Court of Appeals stated in Matter of Alijah C.: "[i]n drafting these sections [Social Services Law 384-b(8)(a) and (b)] the Legislature clearly demonstrated an intent to bring deceased children within the ambit of the Family Court Act in order to protect the health and safety of children whose siblings have died at the hands of a parent or caretaker ... Clearly siblings of a child killed by abuse are within the class of children the Legislature sought to protect in enacting Social Services Law Section 384-b, enhancing the protective purposes of Article 10 of the Family Court Act." In re Ne-Ashia, supra, at 12, quoting Matter of Alijah C. 1 NY3d at 379-380. Indeed, the Court of Appeals has "upheld the Family Court standard that derivative findings of severe abuse may be predicated upon the common understanding that a parent whose judgement is so defective as to harm one child in his or her care is likely to harm others as well.'" Id. quoting Matter of Marino S. 100 NY2d 361 (2003); see also Matter of Amirah L., supra.. The evidence demonstrated clearly the neither passage of time nor review of parenting books had ameliorated the lack of parenting judgement shown by Ms. L. when she ignored her daughter's distress and tended to her husband. The clear, convincing and indeed uncontroverted evidence showed that to this day, Ms. L. chooses to protect herself and her husband, the murderer of her older child, thus derivatively severely abusing the surviving child A.. Matter of Harmony M.E., supra.
The agency proved by clear and convincing evidence that Ms. L. severely abused Annie and derivatively severely abused A. L.. Statute and caselaw make clear that it is not necessary to show diligent efforts to achieve reunification. FCA Section 1051(e); Matter of Amirah L., supra. Enter finding of severe abuse against respondent mother.
Dated: March 3, 2015
Jamaica, New York
_____________________________________________
Marybeth S. Richroath
J.F.C.