Opinion
NA-XXXXX-16
05-25-2017
In the Matter of Kaiden W. A Child Under Eighteen Years of Age Alleged to be Neglected by Phalyn W., Respondent.
New York City Administration for Children's Services 900 Sheridan Avenue Bronx, New York 10451 By: Special Assistant Corporation Counsel Beverly Gertler Esq. Bronx Defenders Attorney for Respondent 360 East 161st Street Bronx, New York 10451 By: Christopher Buerger Esq. Legal Aid Society- Juvenile Rights Division Attorney for Child 900 Sheridan Avenue Bronx, New York 10451 By: Maria Taylor Esq.
New York City Administration for Children's Services 900 Sheridan Avenue Bronx, New York 10451 By: Special Assistant Corporation Counsel Beverly Gertler Esq. Bronx Defenders Attorney for Respondent 360 East 161st Street Bronx, New York 10451 By: Christopher Buerger Esq. Legal Aid Society- Juvenile Rights Division Attorney for Child 900 Sheridan Avenue Bronx, New York 10451 By: Maria Taylor Esq. Sarah P. Cooper, J.
PROCEDURAL HISTORY
On November 15, 2016, the Commissioner of Administration for Children's Services [hereinafter referred to as the "Petitioner" or "ACS"] filed a petition against Phayln W. [hereinafter referred to as the "Respondent"] alleging that she abused her child Kaiden W. (DOB: X/XX/15) within the meaning of section 1012(e)(i) of the New York State Family Court Act. The petition specifically alleges that on October 28, 2016, the child presented at the hospital in septic shock and with third degree burns on his penis, legs, arms and hand that appeared to be days-old. The petitions further allege that the Respondent did not provide an explanation for the injuries that was consistent with the child's injuries and that she admitted to noticing the burns at least two days prior to seeking treatment.
On March 8, 2017, the fact-finding hearing in this matter commenced with the testimony of Nicole Henry [hereinafter referred to as "Ms. Henry"], a child protection specialist with ACS who testified on behalf of the Petitioner. The Court accepted into evidence, as Petitioner's 1, the certified and delegated medical records relating to the child from New York Presbyterian Hospital- Weil Cornell Medical Center [hereinafter referred to as "Weill Cornell Medical Center"] which were provided to the Court on a compact disc.
On April 24, 2017, the fact-finding continued with the testimony of Dr. James Gallagher who was offered as both a fact witness and qualified as an expert witness in surgery and burn care. The Court accepted into evidence, as Petitioner's 2, the birth certificate for the child Kaiden W..
On May 11, 2017, the fact-finding continued with the continued testimony of Dr. Gallagher. At the conclusion of Dr. Gallagher's testimony, the Petitioner rested. Neither the Respondent, nor the attorney for the child, put on a case. The attorneys each gave a summation with the Petitioner and attorney for the child both asking that the Court enter a finding of abuse against the Respondent. The Court issued in oral decision from the bench, indicating a written decision would follow, finding that the Respondent abused the child within the meaning of section 1012(e)(i) of the New York State Family Court Act. The following is a written decision for the fact-finding hearing.
LEGAL ANALYSIS AND DISCUSSION
In a child protective proceeding commenced under Article Ten of the Family Court Act, the petitioner bears the burden of proving the allegations in the petition by a preponderance of the evidence. FAM. CT. ACT § 1046(b)(i); Matter of Tammie Z., 66 NY2d 1 (1985). While the statute does not define the term "preponderance of the evidence," the court is required to determine whether the allegations in the petition are "more probably true than untrue." Matter of Jamie TT., 191 AD2d 132 (3rd Dept 1993).
In the present case, the evidence against the Respondent is not refuted as she did not testify on her own behalf. A child protective proceeding is a civil proceeding and therefore the court may draw the strongest inference that the opposing evidence in the record permits where parties fail to testify at the fact-finding hearing. Commissioner of Social Services v. Philip De G., 59 NY2d 137, 141 (1983). Accordingly, the Court draws the strongest negative inference permitted by law from the Respondent's failure to testify on her own behalf and refute the evidence.
The trial court's determinations regarding a witness's credibility shall be afforded great weight and not be disturbed unless unsupported by the record. Matter of Elijah J. (Yvonda M.), 105 AD3d 449, 450 (1st Dept 2013). The Court had ample opportunity to observe the demeanor and credibility of the two witnesses in this case. The Court credits the testimony of both of the Petitioner's witnesses. Child protection specialist Nicole Henry testified candidly about her involvement in this case. Her testimony on direct examination was consistent with her testimony on cross-examination, she showed no bias and her testimony was corroborated in part by the testimony of Dr. James Gallagher, as well as by the medical records from Weill Cornell Medical Center in evidence as Petitioner's 1. Dr. James Gallagher testified credibly as both a fact and expert witness. Dr. Gallagher is an associate professor of surgery at Weill Cornell Medical College in the department of surgery and he is the director of the burn center at New York Presbyterian Hospital. He treated the child Kaiden in October 2016 and he testified credibly to the burns he observed and the surgeries he performed on the child. His testimony was corroborated by the medical records in evidence and partially corroborated by the testimony of Ms. Henry.
A child is abused, within the definition of Family Court Act § 1012 (e) (i), when a parent or other person legally responsible for the care of the child "inflicts or allows to be inflicted 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 or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" FAM. CT. ACT § 1012(e)(i).
A finding of abuse does not require that the child actually sustain a serious injury but rather, that the respondent placed the child at substantial risk of a serious injury. In re Angelique H., 215 AD2d 318, 320 (1st Dept 1995). Expert testimony is not required in order to determine that the injury sustained constitutes abuse under the statute. Matter of Matthew O. (Kenneth O.), 103 AD3d 67, 72 (1st Dept 2012).
Family Court Act § 1046(a)(ii) provides 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. FAM. CT. ACT § 1046 (a)(ii). Therefore, a prima facie case of abuse may be established by evidence of the injury and evidence that the respondents were the caretakers of the child at the time the injury occurred. Matter of Xavier F. (Yvette E.), 48 Misc 3d 1204(A) (NY Fam. Ct. 2015). The statute authorizes a method of proof which is closely analogous to, and modeled after, the negligence rule of res ipsa loquitur. In re Philip M., 82 NY2d 238, 244 (1993). Once the petitioner has established a prima facie case of abuse, the burden going forward shifts to the respondent to rebut the evidence of parental culpability. Id. To satisfy their burden, a respondent would need to provide a reasonable and acceptable explanation for how the injuries would have occurred. Matter of Tevon C., 280 AD2d 473 (2001). Self-serving or contradictory denials or unreasonable explanations are insufficient to rebut a prima facie abuse claim. In re Benjamin L., 9 AD3d 153 (1st Dept 2004).
In the instant case, the Petitioner established a prima facie case of abuse through the credible testimony of the child protection specialist (Nicole Henry), the credible expert and fact testimony of Dr. Gallagher, and the medical records in evidence as Petitioner's 1.
The medical records and the expert testimony of Dr. Gallagher established that the child, who was approximately16 months old at the time of the allegations, sustained a serious injury, namely, second and third degree burns to his lower extremities, posterior thighs, penis, ankle, and sustained significant third and fourth degree burns to his right hand and wrist which required a partial amputation of the child's right pinky finger. The child presented at the hospital with these severe burns on October 28, 2016 and displayed signs of septic shock including high fever, tachycardia and notable signs of systemic infection. Lab work revealed that the child had a high white blood cell count, immature white blood cells, and acidosis. The child underwent multiple surgeries to treat and clean the burns which included skin grafting, a partial amputation of his right pinky, and treatment of the infections. There was a significant line observed on the child's right wrist/forearm that the doctor attributed to a submersion burn and the child had burn injuries to both the back and palm of his right hand where sepsis was noted in the right hand. The doctor testified that the burns were days-old, perhaps even weeks-old, based on the sepsis that had set into the hand and based on the stages of healing noted on other parts of the child's body.
The Respondent reported to medical staff that the child sustained the burn injuries when she was cooking in the kitchen and the child reached up, grabbed the pot, pulled the pot down and was burned by hot water. At a different point, she indicated she was cooking with hot oil and the child was accidentally burned by the hot oil.
ACS caseworker Nicole Henry credibly testified that she was assigned the case on October 28, 2016 after receiving an oral transmittal report. Ms. Henry testified that she tried to interview the Respondent on the day the case was received but an SVU detective interviewed the Respondent alone. Ms. Henry testified that she interviewed the Respondent for the first time in court on November 15, 2017 and asked her what happened on the day the child was burned. The Respondent told Ms. Henry that she put the child in the bath tub on October 26, 2016 and that she noticed that his skin started to peel after a few minutes. She said he was sitting down in the tub and that she had first put hot water in the tub and then cold water, that she had mixed it around with her hand to make it warm, and that she had put the child toward the back of the bathtub. She told Ms. Henry that the water only came up to the child's pelvis and that only his legs were submerged in the water. During further questioning, the mother indicated that one of the child's arms was also submerged in the water and the other was leaning against the wall of the tub. The Respondent told Ms. Henry that the child was in the water for approximately two to three minutes and at no point did the child cry. She said she briefly left the child alone in the tub when she left the room to retrieve a towel.
The Respondent told Ms. Henry that she waited two days to seek medical treatment for the child because she wanted to avoid an ACS case because she knew his injuries were severe. The Respondent told Ms. Henry that she wrapped the child's arm in a cloth and treated the wounds with butter and oil. She further added that she waited to seek medical treatment because she didn't want her mother to tell her "I told you so." The Respondent said she finally took the child to the hospital because his wounds had started to have a funny smell and his skin was discolored. She further stated that she had felt the bath water and that it felt warm, that it didn't feel that hot but that even though it wasn't too hot for her, it might have been too hot for the baby. She said she had bathed the child at her boyfriend's home and the water temperature there becomes very hot. Ms. Henry asked the Respondent why she gave a different explanation for the child's injuries to medical staff at the hospital (referring to the alleged cooking injury) and she said she was scared at that time to tell the truth, that she was tired of lying, and now she was telling the truth.
Ms. Henry further testified on cross examination that the mother told her that she only noticed the burn to the child's hand when she dried him off with a towel after the bath and she saw skin coming off and that his hand was pink and peeling. She said she wrapped his hand in a towel and put coconut oil and butter on the burn. The mother further told the caseworker that she observed the other burns to the child's body the next morning and those burns looked different than the burn on the hand, they were not peeling and she had hoped that the home remedies would help the injuries heal.
Dr. Gallagher testified that he performed four surgeries on the child including the partial amputation of the child's right pinky. He described in detail the process of draining the puss, formally cleaning and removing the dead tissue, the skin grafting and the amputation. Dr. Gallagher testified that neither of the Respondent's explanations (that hot water or oil spilled on the child accidentally while she was cooking or that she placed the child in the bathtub in warm water submerged at the waist with one arm submerged, for a period of a few minutes while the child showed no signs of distress) is consistent with the child's injuries. Dr. Gallagher further rejected the Respondent's contention that the injuries had occurred a day or two before the child was treated, explaining that the pattern of healing on the legs, along with the sepsis infection observed in the hands, indicates that the burns were sustained many days, possibly weeks before the child was brought to the hospital. Dr. Gallagher further testified that the line observed on the child's right wrist and forearm, and the burns to the palm side of the right hand, indicate a long-time forced exposure to very hot water, at least 120 degrees Fahrenheit, and that these injuries were consistent with a submersion burn where the child's hand and forearm were forcibly held under very hot water for a prolonged period of time, at least 30 seconds to a minute. He further testified that one would not commonly see infection in hand burns unless there is a significant delay in treatment because it takes a while for bacteria to grow and divide and produce enough volume of bacteria to produce an infection. He testified that, to a reasonable degree of medical certainty, the Respondent's explanations for the burns were not consistent with the injuries and that the burns were consistent with a submersion of the skin in a hot liquid of approximately 120 degrees Fahrenheit for at least 30 seconds to a minute.
Dr. Gallagher further testified that it is not credible that the mother tested the water and did not get burned, that the water would have been hot enough to burn an adult's skin as well as a child's skin, and that the child would have been making every effort to remove himself from the water and that he would not have remained in the water voluntarily. The doctor testified that the injuries would have been very painful, that the skin would have appeared raw and discolored, that the child would not have been using his right hand, and that the child would have been protecting his right hand and withdrawing it. The child was treated with pain medication at the hospital and was observed to be crying and withdrawing his hand when medical staff attempted to touch it. The doctor indicated that the burns to the child's hand and wrist were consistent with a submersion burn in hot liquid, that the burns on the child's thighs were more typical of splashing burns, not immersion burns, and that the burns on the ankles were also not consistent with immersion-type burns. The doctor testified that if the water was hotter than 120 degrees Fahrenheit, if it had been more like 150-160 degrees Fahrenheit, it would only have taken a few seconds to create the burns observed on the child's hand and wrist, but it is not possible to say precisely how long the child's hand was submerged or how hot the water was. The doctor stated that this injury was so severe that it led to the complete death of the skin on the dorsum and the loss of skin on the palm side (thicker skin) which is very unusual for a scolding injury and most indicative of a submersion burn.
Dr. Gallagher further testified that it is impossible to date the injuries exactly but that the grandmother reported she had seen the child two weeks before he was treated at the hospital and he was fine. The doctor testified that based on the severity of the burns, the systemic infection, and signs of septic shock, the child sustained the injuries more than 48 hours before the mother brought the child to the hospital, and more likely, many days or weeks before she sought medical attention. The doctor testified that if the mother had waited another day or two to seek medical treatment, the child could have died from septic shock.
The Respondent did not testify on her own behalf and did not offer any evidence to rebut the Petitioner's prima facie case. The Respondent did not offer a reasonable or acceptable explanation of how burns of such nature and degree would have happened (see Matter of Tevon C., supra). Both of the explanations the Respondent gave to Ms. Henry and to medical professionals regarding the child's injuries, are incredible, unreasonable and not consistent with the injuries the child sustained.
The Court finds that the Petitioner met their burden in establishing that the child sustained a serious injury that would not have happened but for the acts and omissions of the Respondent. Indeed, the evidence establishes that the Respondent intentionally submerged the child's right hand and wrist in scalding hot water for an extended period of time while the child most likely was screaming in pain and trying desperately to remove his hand from the water. The evidence establishes that the resulting third and fourth degree burns to his right hand and wrist required a partial amputation of the child's right pinky finger. The Respondent further caused the child to sustain second and third degree burns to his lower extremities, posterior thighs, penis, and ankle. These injuries, already serious and painful in nature, were compounded by the Respondent's failure to seek medical treatment for the child for at least forty-eight (48) hours and possibly for as long as two weeks after the injuries occurred. (See In re Angelique H., supra). As a result, by the time the Respondent brought the child to the hospital, the child was in a state of septic shock that, left untreated, would have caused the child's death within a day. There is no doubt that the child's injuries in this case, and the risk of even more serious injury (namely, death), rise to the level of abuse. The child not only suffered through the initial occurrence of the burns, but then suffered days without receiving proper medical treatment while most certainly experiencing incredible pain as infection set in. When the Respondent finally brought him to the hospital, the child was near death and had to undergo four surgeries, including a partial amputation of his finger.
CONCLUSION
WHEREFORE, this Court finds that the Petitioner has proven by a preponderance of the evidence that the Respondent abused the child Kaiden W. (DOB: X/XX/15) within the meaning of Section 1012(e)(I)) of the New York State Family Court Act by a) intentionally submerging the child's right hand and wrist in scalding hot water for an extended period of time which resulted in third and fourth degree burns to his right hand and wrist required a partial amputation of the child's right pinky finger; b) causing the child to sustain second and third degree burns to his lower extremities, posterior thighs, penis, and ankle, and c) waiting at least two days, and possibly weeks, to seek medical treatment for the child which compounded the child injuries in that the wounds became infected and the child was in a state of septic shock which, left untreated for one more day, could have resulted in the child's death.
This constitutes the decision and order of the Court. Dated: May 25, 2017 Hon. Sarah P. Cooper, JFC