Opinion
June 26, 1984
Order of the Family Court, Bronx County (J.F. Pollard, J.), entered on January 23, 1984, which, after a hearing, ordered that the children be returned to the custody of the mother and stepfather, is unanimously reversed as to Moses C., on the law, the facts, and in the exercise of discretion, without costs, and the petition by the Commissioner of Social Services is granted awarding custody to the Commissioner. The appeal from this order as to Jose C. is dismissed as moot. ¶ The improvidence of the Family Court order returning the children to the custody of the mother and stepfather is emphasized by the tragic death of the younger of the two children, Jose. This court ordered an interim stay of the Family Court order, pursuant to which, at the suggestion of counsel, the children were placed in the temporary custody of the maternal grandmother. Unfortunately, the grandmother permitted the mother and stepfather access to the children, and the death of Jose ensued. ¶ The evidence of child abuse before the Family Court at the section 1028 FCT of the Family Court Act hearing rendered erroneous the court's conclusion that no imminent danger to either child had been shown. (Cf. Matter of Cory T., 81 A.D.2d 785.) Dr. Tripel, a resident at Montefiore Hospital on duty at the emergency room when Jose was admitted, testified at the hearing that the 15-month-old Jose was severely malnourished and dehydrated, with hematomas covering many parts of his body. The child was extremely pale and required vigorous resuscitation. After admission, doctors discovered that Jose also had suffered an abdominal injury consistent with being struck with a blunt object. Overnight, his duodenum swelled from internal bleeding, totally blocking the intestines. There was evidence also that the three-year-old Moses, had recently suffered a fractured arm, the explanation for which was questionable.
Concur — Kupferman, J.P., Sullivan, Carro, Silverman and Alexander, JJ.