Opinion
NA-31336/19
10-30-2019
In the MATTER OF NATHAN G.-C. A Child Under the Age of Eighteen Years Alleged to be Abused by Janeiry C. Cesar G., Respondents.
Richard Camilleri, Esq., for the petitioner Leila Tabbaa, Esq., assigned counsel for respondent mother Annie Carney, Esq., assigned counsel for respondent mother Beatrice Mayol, Esq., assigned counsel for respondent father Cesar G. Jamara Clark, Esq., attorney for the child Nathan G-C.
Richard Camilleri, Esq., for the petitioner
Leila Tabbaa, Esq., assigned counsel for respondent mother
Annie Carney, Esq., assigned counsel for respondent mother
Beatrice Mayol, Esq., assigned counsel for respondent father Cesar G.
Jamara Clark, Esq., attorney for the child Nathan G-C.
Gilbert A. Taylor, J.
Procedural History/Factual Findings :
On October 9, 2019, the Commissioner of the Administration for Children's Services (hereinafter, "ACS") filed a petition alleging that the respondent mother Ms. Janeiry C. (hereinafter, "Ms. C" or "Respondent Mother") and the respondent father Mr. Cesar G. (hereinafter, "Mr. G" or "Respondent Father") abused the subject child Nathan G.-C. (D.O.B. XX/XX/2019) in that:
On or about September 27, 2019, according to Dr. Alexxis Lawson of St. Barnabas Hospital,
The subject child NATHAN (age 7 months) sustained a leg fracture and the explanation provided by the Respondent Mother and Respondent Father is not consistent with the injury sustained by the subject child. On or about September 27, 2019 Dr. Lyubov Nisenbaum, stated to the CPS that the subject child NATHAN sustained a nondisplaced acute fracture of the anterior distal tibial metaphysis, most compatible with a metaphyseal corner fracture to his right foot. According to Dr. Nisenbaum, the child NATHAN sustained a serious fracture and that the fracture is not consistent with the explanations provided by either respondent. According to Dr. Nisenbaum, this injury is consistent with a NON-accidental trauma and the child required further examination at the Children's Hospital at Montefiore.
On or about October 3, 2019, Dr. Jamie Hoffman-Rosenfeld, Child Abuse Specialist at the Montefiore Hospital Bronx Child Advocacy Center stated to the CPS that she consulted with the Pediatric Orthopedic Surgeon Dr. Sharkey regarding the injuries and stated that metaphysical fracture is considered very specific for child abuse and is a "red flag"!! Dr. Hoffman-Rosenfeld stated the mechanisms required to produce this fracture are not typically seen in accidental injuries and that any limb fracture in a non-ambulatory infant is very concerning. According to Dr. Hoffman-Rosenfeld the subject child's injuries are not consistent with the story reported by the Respondents and do not explain the ankle fracture. Dr. Hoffman-Rosenfeld also stated that any child with this type of fracture would be crying and in pain and noted the injury was in the healing phases.
On or about September 27, 2019, the Respondent Mother stated to ACS CPS, that on or about September 25, 2019, she arrived at the maternal great-grandmothers home to pick up the subject child NATHAN at about 8:00 p.m. where she met the child NATHAN, Respondent Father, and maternal great-grandmother and that the child appeared fine. According to the Respondent Mother, they arrived home at approximately 10:00 p.m. and later observed NATHAN in the crib to be excited, bouncing in the crib, with his hands in the air reaching for her, then observed the child to fall forward hitting his face on the crib. According to the Respondent Mother, the child began to cry hysterically, and it took her a long time to console him. According to the Respondent Mother, the following morning at around 11:00am she picked up NATHAN from the crib and he was crying a different type of cry and she knew that something was wrong. According to the Respondent Mother, he was crying throughout the day and realized when she touched his right leg he would cry hysterically. According to the mother, she took the child to St. Barnabas Hospital after 9:00pm. The Respondent Mother also stated that she and the child NATHAN recently moved into the home of the Respondent Father two weeks ago.
On or about September 27, 2019, the Respondent Father stated to CPS that he was in the hospital because something was wrong with NATHAN's ankle and he did not know what was wrong.
Based on the above allegations, the subject child is an abused and neglected child as defined in Article 10 of the Family Court Act.
On October 9, 2019, the matter was first before the Court. Both the Respondent Mother and the Respondent Father appeared in Court on this date for arraignment, were each assigned counsel and issues were joined. At this initial appearance, ACS informed the Court that an emergency removal of the subject child Nathan had been conducted the previous day, and an application for a remand of the child was made. Both Ms. C and Mr. G opposed the removal and ACS requested a hearing pursuant to Family Court Act Section 1027. The 1027 hearing commenced on this date with ACS calling the filing Child Protective Specialist Ms. H (hereinafter, "CPS") as its first witness. The direct examination of the CPS was not completed on this date, and the matter was adjourned to October 10, 2019. At the conclusion of this appearance, the Court indicated that it was not issuing any orders regarding the status of the child Nathan given the lack of sufficient information.
On October 10, 2019, the 1027 hearing resumed with ACS entering into evidence as Petitioner's Exhibit 1, St. Barnabas Hospital (hereinafter, "St. Barnabas") medical records for the child Nathan and as Petitioner's Exhibit 2, a New York State Central Register Oral Report Transmittal, dated September 27, 2019, the source of whom was Dr. Alexxis Lawson from St. Barnabas. The Respondent Mother also entered into evidence as Respondent Mother's Exhibit A, St. Barnabas medical records for Nathan containing a discharge summary. While no testimony was taken this day, there was colloquy amongst the Court and all counsel about the difference of medical opinions contained within the medical records submitted and what informed ACS' decision to wait 11 days after the fracture was diagnosed to conduct an emergency removal of the child Nathan. Thus, in order to clarify many of the Court's inquiries, the Court ordered the ACS Child Protective Manager Ms. D (hereinafter, "Child Protective Manager") to appear in court the following day, either in person or via telephone. Additionally, ACS was ordered to turn over all outstanding updated discovery, including handwritten investigation notes, and ordered to turn over an expert disclosure for Dr. Hoffman-Rosenfeld pursuant to CPLR § 3101(d) and to submit any so ordered subpoenas for medical records forthwith. The matter was adjourned to October 11, 2019.
At the continued 1027 hearing on October 11, 2019, the direct examination of the CPS was completed. The CPS's testimony was interrupted to take pertinent testimony of the Child Protective Manager and the Child Protective Specialist Supervisor II Mr. L (hereinafter "CPS Supervisor II"), over the telephone. At the conclusion of their testimony, ACS entered into evidence as Petitioner's Exhibit 3, Addendum I of the Article 10 petition which contained the allegations. The Court continued no status for the child Nathan and the matter was adjourned to October 15, 2019 for the cross-examination of the CPS.
On October 15, 2019, the matter was scheduled for continuation of the 1027 hearing. However, no testimony was taken because Dr. Jamie Hoffman-Rosenfeld (hereinafter, "Dr. Hoffman-Rosenfeld"), ACS' next anticipated witness, did not appear in court despite indicating that she would be available to testify. ACS informed the Court that Dr. Hoffman-Rosenfeld wanted to review the skeletal survey completed at St. Barnabas prior to commencing her testimony, but that the disc containing the skeletal survey had not yet been provided to her, and she therefore was not prepared to testify. While no testimony was heard, the Respondent Mother entered into evidence a set of St. Barnabas medical records as Respondent Mother's Exhibit B that were more comprehensive than the set entered as Respondent Mother's Exhibit A, and the matter was adjourned to October 16, 2019.
On October 16, 2019, at the continued 1027 hearing, ACS called Dr. Jamie Hoffman-Rosenfeld to testify as its next witness. All counsel stipulated to the testimony of Dr. Hoffman-Rosenfeld being taken as that of an expert in child abuse pediatrics, and the direct examination commenced after ACS entered into evidence Petitioner's Exhibits 4 through 7. Before the matter was adjourned, the covering Child Protective Specialist Ms. T (hereinafter, "Covering CPS") informed the Court that she visited the home of the maternal grandmother on October 15, 2019. Given that was the first day she became involved on the case, she was unsure if any other ACS employee had visited the home between October 8, 2019 and October 15, 2019. The matter was adjourned to October 17, 2019 for continuation of the 1027 hearing.
On October 17, 2019, the matter was scheduled for the continuation of the 1027 hearing. However, no testimony was taken given that Dr. Hoffman-Rosenfeld was not available this date. As a follow up to the objections of the Respondent Father's counsel, counsel for ACS submitted an affirmation outlining the reasons and its offer of proof for its intent to call Mr. G as a witness to testify at this 1027 hearing. The Attorney for the Child was in support of Mr. G being called to testify, but counsel for Mr. G remained opposed. Over the objection of the Respondent Father's attorney, the Court directed that if called, Mr. G was to testify. Before the matter was adjourned to October 18, 2019, the Respondent Mother entered into evidence as Respondent Mother's Exhibit C, a disc containing the skeletal survey taken of Nathan at St. Barnabas on September 27, 2019. On consent of all counsel, the matter was adjourned to October 18, 2019, on which date, the direct testimony of Dr. Hoffman-Rosenfeld was completed. The matter was adjourned to October 21, 2019.
On October 21, 2019, the 1027 hearing continued. All counsel, with the exception of the Attorney for the Child, conducted and completed cross-examination of Dr. Hoffman-Rosenfeld. Accordingly, the matter was adjourned to the following day for the Respondent Father to be called as a witness and to October 23, 2019 for the cross-examination of Dr. Hoffman-Rosenfeld to be completed by the Attorney for the Child.
On October 22, 2019, the 1027 continued with the brief testimony of the Covering CPS. Before the matter was adjourned, the Court ordered ACS to prepare and submit a written report describing the nature of the casework that had been conducted for the family on each day that the 1027 hearing had occurred. ACS was also ordered to visit the home of the maternal grandmother, the home in which it had placed the child after conducting its emergency removal, every calendar day pending the outcome of the 1027 hearing. Further, ACS was ordered, absent any exigent and emergency circumstances, not to move Nathan from his grandmother's home, and the matter was adjourned to October 23, 2019.
Neither Ms. C nor Mr. G appeared this day. Their attorneys informed the Court that they remained at home to care for the child Nathan as there was no childcare resources available on this date.
On October 23, 2019, the cross-examination of Dr. Hoffman-Rosenfeld by the Attorney for the Child was continued, and the doctor's testimony was completed. At the conclusion of Dr. Hoffman-Rosenfeld's testimony, over the objection of the Respondent Mother, an ACS court report dated October 23, 2019 was entered into evidence as Petitioner's Exhibit 8. The Respondent Mother testified that a statement in the report was untrue, attesting that she never informed the case worker that Nathan required occupational therapy as a result of his leg injury. Additionally, on this date, ACS informed the Court that the assigned CPS was experiencing complications from her dental procedure and would not be able to physically appear in court for her cross-examination to be completed. In order to efficiently use the hearing time, all counsel consented to ACS substituting the continued testimony and cross-examination of the CPS with the testimony of her supervisor, CPS Supervisor II. Before the matter was adjourned, an affirmation from Dr. Christopher Sullivan (hereinafter, "Dr. Sullivan"), associate professor of orthopedic surgery at University of Chicago and a curriculum vitae was entered into evidence as Respondent Mother's Exhibit D. Counsel for the Respondent Mother stated that, in accordance with CPLR § 2106, the affirmation was being submitting in lieu of testimony of Dr. Sullivan. Counsel for ACS objected to the entry of the affirmation in the absence of Dr. Sullivan being subject to cross-examination. Thus, the matter was adjourned for further testimony, including that of Dr. Sullivan for purposes of cross-examination.
On October 24, 2019, the matter was scheduled for the continuing 1027 hearing. As had been previously agreed to, counsel cross examined the CPS Supervisor II, in lieu of the CPS, who was still out on medical leave.
At the continuing 1027 hearing on October 25, 2019, the Respondent Mother called Dr. Sullivan as its witness. Dr. Sullivan, who testified over the telephone, was made available for the limited purpose of cross-examination given that his affirmation served as his direct testimony. All counsel completed cross-examination on this date, and the Respondent Mother rested.
On October 28, 2019, ACS entered into evidence two scientific articles into evidence as Petitioner's Exhibits 10 and 11 and rested. The Attorney for the Child called Mr. G as a witness to testify. All sides rested at the 1027 hearing, and counsel for ACS gave a summation. The matter was adjourned to October 29, 2019, on which date all other counsel completed their closing arguments.
The matter is currently adjourned to October 30, 2019 for decision on the 1027 hearing.
Documentary and Testimonial Evidence :
The following documents were received into evidence at this 1028 Hearing :
Petitioner's Exhibit 1: St. Barnabas Hospital medical records;
Petitioner's Exhibit 2: ORT, dated September 27, 2019;
Petitioner's Exhibit 3: Addendum No.1 of Article 10 Petition containing the allegations;
Petitioner's Exhibit 4: ACS Investigation Progress Notes;
Petitioner's Exhibit 5: ACS Court Report, dated October 15, 2019;
Petitioner's Exhibit 6: Curriculum Vitae of Dr. Jamie Hoffman-Rosenfeld;
Petitioner's Exhibit 7: PowerPoint of x-ray images from Children's Hospital at Montefiore;
Petitioner's Exhibit 8: ACS Court Report, dated October 23, 2019;
Petitioner's Exhibit 9: ACS Court Report, dated October 24, 2019;
Petitioner's Exhibit 10: Article by Paul Kleinman and Sandy C. Marks, "A Regional Approach to Classic Metaphyseal Lesions in Abused Infants: The Distal Tibia";
Petitioner's Exhibit 11: Article by Paul Kleinman, et. al., "Prevalence of the Classic Metaphyseal Lesion in Infants at Low Versus High Risk for Abuse";
Respondent Mother's Exhibit A: St. Barnabas Hospital medical records;
Respondent Mother's Exhibit B: St. Barnabas Hospital medical records
Respondent Mother's Exhibit C: CD of St. Barnabas skeletal survey, September 27, 2019
Respondent Mother's Exhibit D: Affirmation and Curriculum Vitae of Dr. Christopher Sullivan
This set of the St. Barnabas records are essentially identical to the medical records in evidence as Petitioner's Exhibit 1.
This set of the St. Barnabas records are more comprehensive than Respondent Mother's Exhibit A and Petitioner's Exhibit 1.
The following witnesses testified :
Called by the Petitioner
ACS Child Protective Specialist Ms. H
Dr. Jamie Hoffman-Rosenfeld
ACS Child Protective Manager Ms. D
ACS CPS Supervisor II Mr. L
Covering ACS Child Protective Specialist Ms. T
Called by the Respondent Mother
Dr. Christopher Sullivan
Called by the Respondent Father
None
Called by the Attorney for the Child
Respondent Father Mr. G
A Summary of the Testimonial Evidence is as Follows :
ACS Child Protective Specialist
The assigned CPS testified that she was assigned to this case on September 27, 2019 to initiate an investigation, after having received a State Central Register intake report made on the same date. The CPS testified that upon receipt of the report, she went to St. Barnabas and spoke individually with Ms. C. After introducing herself and informing Ms. C of the purpose of her visit, the CPS asked Ms. C for her understanding of why the report was called in. Ms. C informed the CPS that on the night of Wednesday, September 25, 2019, she observed Nathan to sustain an injury to his lip while he was bouncing on his bottom reaching up and fell forward hitting his face on the crib, causing his lip to have some minor bleeding. The CPS informed Ms. C of the nature of the injury the doctors were concerned about and told Ms. C that the doctors were trying to learn if it was inflicted or accidental. The CPS testified that she further explained to Ms. C the difference between what an inflicted injury looks like compared to an accidental injury. The CPS testified that she then inquired of Ms. C if there was anything else that occurred in terms of Nathan's behavior that evening. Ms. C told her that he was crying, and it took him a long time to calm down before he was ultimately able to be placed back in his crib to sleep. The CPS also testified that she asked Ms. C whether anyone else was present in the home the evening of September 25, 2019. Ms. C informed her that Mr. G was home as well as Mr. G's father, grandfather, brother and brother's wife.
The CPS testified that she inquired of Ms. C what transpired before the family arrived home on September 25, 2019. Ms. C informed her that she went to school, and that before she goes to school, she takes Nathan to her grandmother's home since her grandmother watches Nathan while she is in school. Ms. C further told the CPS that on September 25, 2019, her aunt and her dad were at her grandmother's home by the time she came out of school and arrived at the home. Ms. C explained that Nathan appeared to be fine when she saw him.
The CPS further testified that Ms. C told her that the next day, around 11 a.m. when Nathan awoke, she went to his crib to change and feed him. As she lifted him up, he belted a screaming cry, and she recognized his cry to sound differently and could tell something was wrong. Ms. C informed the CPS that as she struggled to get him to stop crying while changing his diaper and feeding him, it took her a long time to soothe Nathan. Ms. C specified that she was able to calm him down with the help of playing Baby Shark. Once Nathan settled down, Ms. C detailed for the CPS how she inspected Nathan's body by touching and moving his various body parts starting with his arms, belly, and then legs. As she touched his right leg, he screamed and that is when she realized something was wrong with his right foot and decided to take him to the emergency room.
The CPS testified that while at the hospital, she attempted to speak with Mr. G with the assistance of a language line interpreter. However, the interpreter reported that he was having difficulty trouble understanding Mr. G, and as a result, her interview of him was very limited as a result. The CPS noted that with the assistance of Ms. C, she was able to complete a minimal fact interview and was able to assess directly from Mr. G that he did not know how Nathan hurt his foot and that he was making a bottle for Nathan at the time when the child hit his face on the crib.
In addition to speaking with the parents at the hospital on September 27, 2019, the CPS testified that she spoke with the attending physician, Dr. Nissenbaum. Dr. Nissenbaum informed her about the fracture that Nathan had sustained. The CPS noted that she asked Dr. Nissenbaum if the story that the family provided to her was the same story that they provided to her, and Dr. Nissenbaum confirmed that the story was consistent. The CPS questioned Dr. Nissenbaum on whether the injury was caused accidentally or non-accidentally, and Dr. Nissenbaum told her that the injury could be accidental and that she needed the child to have a follow-up at Montefiore Children's Hospital with a specialist. The CPS testified that Dr. Nissenbaum relayed to her that Nathan was cleared for discharge and informed her that she provided her with a partial discharge summary which stated that the injury was something that could be caused accidentally.
In addition to speaking with Dr. Nissenbaum, the CPS testified that the emergency room triage staff at St. Barnabas also informed her that the parents checked in to the hospital at 10:15 p.m. on September 26, 2019. Finally, the CPS noted that while Nathan stayed overnight in the hospital emergency room, he was not admitted and was released the next day.
The CPS testified that between September 27, 2019 and October 8, 2019, the parents had done everything that had been asked of them including cooperating with ACS supervision and taking the child for follow-up medical appointments.
Dr. Jamie Hoffman-Rosenfeld
Dr. Hoffman-Rosenfeld testified that she is employed at the Children's Hospital at Montefiore Medical Center as an adjunct consultant in the department of pediatrics. She testified that she also serves as the medical director of the child abuse program at Montefiore and that she is primarily based as the medical consultant at the Bronx Child Advocacy Center. Dr. Hoffman-Rosenfeld testified that she first came to know about Nathan on Thursday, October 3, 2019 when she received a call from Dr. Melinda Sharkey (hereinafter, "Dr. Sharkey"), a pediatric orthopedic surgeon at Montefiore.
Dr. Hoffman-Rosenfeld testified that Dr. Sharkey informed her the baby had been referred to her from St. Barnabas due to being diagnosed with a distal tibial classic metaphyseal fracture, also referred to as a CML. She further testified that Dr. Sharkey informed her that Nathan had been diagnosed on September 26, 2019 and because St. Barnabas did not have a pediatric orthopedic surgeon within their hospital system, they referred him to Montefiore for a follow-up appointment with her. Dr. Hoffman-Rosenfeld testified that Nathan was seen by Dr. Sharkey on October 3, 2019, approximately a week after he first presented at St. Barnabas.
Dr. Hoffman-Rosenfeld further testified that based on the info Dr. Sharkey received from the parents about the history of events leading up to the discovery of Nathan's fracture and because the type of fracture sustained by Nathan is considered highly specific for non-accidental injury, Dr. Sharkey expressed concerns and wanted her to be aware of the baby and questioned Dr. Hoffman-Rosenfeld on whether she should allow the baby to go home with the parents that day. Dr. Hoffman-Rosenfeld testified that she agreed that this type of fracture in and of itself, is concerning and that it raises serious red flags when seen, particularly in infants. However, she advised Dr. Sharkey that she did not have a right to hold the baby because once ACS is involved and has done a safety assessment and evaluation of the family, hospitals are not in a position to prevent the baby from going home. Dr. Hoffman-Rosenfeld confirmed that neither she nor Dr. Sharkey called in an ORT to the State Central Register.
Dr. Hoffman-Rosenfeld testified that she was able to personally observe Nathan and to conduct a physical examination on October 8, 2019 at the Bronx Child Advocacy Center. Both parents were present, as well as the CPS. Dr. Hoffman-Rosenfeld testified that Nathan was a healthy, robust appearing infant. The only finding from her examination was that he had some mild swelling around his right ankle where he had sustained the fracture. There were also some scabbed excoriations around the right lower leg on the front and the back which were consistent with rubbing from the wrapping or splint he had previously had on his leg. Finally, Dr. Hoffman-Rosenfeld noted that Nathan tended to protect his right leg by lifting it rather than placing his weight on it to stand. While Dr. Hoffman-Rosenfeld did not personally take any images of Nathan, she ordered imaging to be done. Based on the information she received from ACS, it was her understanding that a skeletal survey could not be done at St. Barnabas.
Dr. Hoffman-Rosenfeld testified that prior to this October 8, 2019 appointment, she prepared by reviewing 2 images that were available in the Montefiore electrical medical records. Both images consisted of a frontal view and a side or lateral view of Nathan's right lower leg and were both taken by Dr. Sharkey on October 3, 2019. One image was simply a more magnified view of the first x-ray image, and Dr. Hoffman-Rosenfeld testified that the images displayed signs of healing.
Dr. Hoffman-Rosenfeld testified that during the October 8, 2019 appointment, she also had an opportunity to speak with both parents, although it was Ms. C who primarily provided a history of events. Ms. C walked Dr. Hoffman-Rosenfeld through the timeline of events on Wednesday, September 25, 2019, starting in the afternoon when she left her home with Nathan around 3:30 p.m. to walk to her grandmother's home. Once at her grandmother's home, Ms. C reported that Nathan got out of his stroller, was playing and seemed fine. She left to go to school, and Ms. C reported that Mr. G arrived at her grandmother's between 6:00 and 6:30 p.m. Dr. Hoffman-Rosenfeld testified that she directly asked Mr. G how was Nathan when he arrived to Ms. C's grandmother's home, and his response was that the child was fine. Ms. C then told Dr. Hoffman-Rosenfeld that she got to her grandmother's home around 9:00 p.m. She shared that she ate a meal, her grandmother changed the baby, and he seemed fine. When he was placed in his stroller to walk home, Ms. C again reported that there were no issues with her son. Dr. Hoffman-Rosenfeld testified that Ms. C informed her that when she, Mr. G and Nathan arrived home, she went to the bathroom while Mr. G went to the kitchen to make a bottle. Nathan had been placed in his crib, and as Ms. C returned to go to him, she observed Nathan seated on his bottom in his crib with his legs in a butterfly position. He was bouncing up and down on his bottom with his hands up in the air, when suddenly he fell forward and hit his lip on the crib. Ms. C reported that Nathan had noticeable blood on his lip and cried. Ms. C also recalled that Nathan had not been wearing pants, and that she did not notice anything about wrong with his leg. Ms. C reported that Nathan was quite fussy, but that he fell asleep in his father's arms around 2 a.m., at which point he was placed in the crib.
According to Dr. Hoffman-Rosenfeld, Ms. C told her that she woke up the following morning on Thursday, September 26, 2019 around 11 a.m. Ms. C stated that although Nathan seemed happy when in the crib, he screamed when she lifted him to take him out. Ms. C informed Dr. Hoffman-Rosenfeld that while she sought to change Nathan's diaper, he cried with each movement. Ms. C informed the doctor that while she was able to feed Nathan, he was very whiny and did not seem right all day. Ms. C stated she was unable to ascertain exactly what was bothering her son, but she thought that touching or moving his leg made him cry more. Upon this realization, she decided to bring the child to the hospital around 10 p.m. that day.
Dr. Hoffman-Rosenfeld did not recall Mr. G giving her a specific history about what happen ed to the baby, but she recalled the St. Barnabas records stating that Mr. G believed Nathan was injured as a result of trying to pull himself up by grabbing at the side of his crib.
Dr. Hoffman-Rosenfeld testified that to a reasonable degree of medical certainty, Nathan's injury was not consistent with the history provided by the Respondent Mother because this type of fracture would have required a greater type of force to occur and it would be highly unlikely that a 7 month old child could do anything on his own that would have accidentally caused this type of injury. Dr. Hoffman-Rosenfeld also testified that the limited statement provided by Mr. G did not serve as a substantive explanation for how the child sustained the fracture.
Dr. Hoffman-Rosenfeld testified that CML fractures usually result from the tension from a yanking or a shearing motion or from vigorous flailing of an extremity. She further noted a few scenarios where it was reported a fracture of this type occurred in accidentally—difficult birthing deliveries where there was yanking or tugging by the ankle to extract a baby or physical therapy manipulations in the setting of congenital abnormalities such as a club foot. Dr. Hoffman-Rosenfeld noted that neither of these examples was applicable to the case at hand.
Dr. Hoffman-Rosenfeld testified that, in conjunction with her radiologist colleagues at the pediatric radiology department at Montefiore, she was able to review the skeletal survey conducted at St. Barnabas, the purpose of which was to ascertain whether the child had multiple fractures or any older fractures that were healing in different areas of the body. She also testified that she was able to review the St. Barnabas medical records. She pointed out that other than the CML fracture, no other fractures or abnormalities had been identified in either the medical records or the skeletal survey. There was no evidence of bone disease and there was no organic cause for the fracture that Nathan sustained. The ultimate diagnosis she pegged was an unexplained right tibial fracture with concerns of inflicted injury.
On cross-examination, Dr. Hoffman-Rosenfeld testified that Ms. C had a calm demeanor and answered all questions asked of her. She, along with Mr. G, took turns holding the child throughout her meeting with them and neither parent had any objection to Dr. Hoffman-Rosenfeld's clinical examination of their son. The doctor noted the parents' interaction with Nathan to be appropriate, and she testified that she did not observe any obvious signs of family dysfunction or anything concerning to her during that appointment. Dr. Hoffman-Rosenfeld testified that Nathan had no suspicious mark or bruises, was an appropriate weight, was appropriately dressed and showed no signs of food deprivation.
Child Protective Manager Ms. D & CPS Supervisor II Mr. L
The Child Protective Manager testified jointly via telephone with CPS Supervisor II in response to questions posed by the Court. The Child Protective Manager confirmed that a report was called in to the State Central Register on September 27, 2019 at 5 a.m. and that ECS handled the investigation until the CPS was assigned.
Both the Child Protective Manager and CPS Supervisor II testified that they were aware that Nathan was diagnosed with a fracture and released home to the care of his parents. The Child Protective Manager testified that a 7 day safety assessment completed by ACS on this case October 4, 2019 determined that the child was safe in the care of his parents with a safety plan in place; given that the family resides with paternal relatives who ACS deemed to have protective capacity, the safety plan was to utilize them as additional supports.
When asked what if anything had changed between October 4, 2019 and October 8, 2019 to lead ACS to conduct an emergency removal, the CPS Supervisor II testified that when the Child Advocacy Center doctor, Dr. Hoffman-Rosenfeld, examined Nathan and informed ACS that this single fracture was suspicious for abuse and that it was more likely than not the result of abuse, the decision to remove was made. The CPS Supervisor II further explained that once Dr. Hoffman-Rosenfeld alerted ACS that this type of fracture is typically caused by non-accidental means, it spurred an inquiry into what role the parents may have played in the causation of this injury and led ACS to believe there was imminent risk. The Child Protective Manager and the CPS Supervisor II testified that neither of them had inquired of Dr. Hoffman-Rosenfeld what type of mechanism would be required to accidentally cause this type of fracture or for her to rule out if there was any chance that this injury could have occurred accidentally.
The Child Protective Manager testified that it was ACS' intent to modify the safety assessment determination in light of the filing of the petition.
CPS Supervisor II Mr. L
The CPS Supervisor II testified again individually on October 24, 2019. He testified that 18 days after the case was called in and 7 days after Nathan's removal, a Child Safety Conference (hereinafter, "CSC") was eventually held for this family on October 15, 2019. The CPS Supervisor II pointed out that at the CSC, there was discussion about how Nathan was doing at his grandmother's home. Ms. C reported that Nathan was not sleeping well as he was crying and waking up nightly, which was not normal for him. The CPS Supervisor II noted that during the weekend of October 12, 2019, Ms. C slept over at her grandmother's home to assist in soothing Nathan at night. Ms. C had explained to him the difficulty she had in putting the child down even when she was there, which again was not normal behavior for him.
The CPS Supervisor II noted that the parents' strengths were highlighted at the CSC. ACS acknowledged that the parents took their child to the hospital once they noticed something was wrong. They further acknowledged that the parents brought Nathan to his follow up appointments at Montefiore with Dr. Sharkey, the pediatric orthopedic surgeon as well as with Dr. Hoffman-Rosenfeld, the Montefiore child abuse pediatrician. The CPS Supervisor II further highlighted that Nathan appeared well cared for and to be the appropriate weight for his age and displayed no signs of failure to thrive. Nathan had also attended his six month wellness check-up and his immunizations were up to date. Additionally, neither the parents nor any caretaker of Nathan's had ACS history. The CPS Supervisor II testified that the only concern which presented itself was the single tibial fracture.
The CPS Supervisor II again noted that Nathan was removed the same day he was seen by Dr. Hoffman-Rosenfeld, and that while Dr. Hoffman-Rosenfeld could not say the injury was one hundred percent attributable to abuse, ACS had concerns given her statement that this type of injury mostly occurs in an abuse setting and that the parents' explanation did not seem plausible.
Covering CPS Ms. T
The Covering CPS testified that she was a covering caseworker and she first made contact in the home of the maternal grandmother on October 14, 2019. Prior to that date, she did not know the family. At her home visit on October 14, 2019, Nathan, Ms. C, Mr. G, two other minor children, the maternal grandmother and her significant other were present. The Covering CPS testified that she had the opportunity to speak with the maternal grandmother and the maternal grandmother allowed her to inspect the home. The maternal grandmother also informed her that Nathan was doing well.
During this visit, the Covering CPS observed Nathan, who was asleep in his pack and play when she first arrived. After asking the maternal grandmother to open up the child's onesie and his diaper, she was also able to observe that he had no marks or bruises or diaper rash. During her inspection, Nathan responded appropriately to her touching and stimuli, but remained asleep. At the home on this date, the Covering CPS noted the home to not have any window guards, and she testified that she also took photographs of peeling paint and plaster on the ceilings of the bathroom and kitchen. She testified that she informed the maternal grandmother that she needed to take corrective measures to rectify these issues.
The Covering CPS testified that she made another visit to the home of the maternal grandmother on October 17, 2019. The Respondent Mother, the maternal grandmother, Nathan and two younger children were present during this visit. Nathan appeared to be healthy, and his mother was caring for him and holding him appropriately. The Covering CPS spoke with the maternal grandmother, and the maternal grandmother informed her that she was taking off from work the following day so that the window guards could be installed. The Covering CPS expressed her concerns that there was not enough formula the first time she visited and there still was not enough in the home during this visit. Ms. C responded saying that she needed to refill the baby's WIC but that she had just purchased this bottle and that she planned to buy another bottle the following day. The Covering CPS testified that she advised Ms. C to purchase more than one bottle at a time to avoid running out of formula, especially since the formula is not perishable. The Covering CPS testified that she did not offer to purchase any formula for the family during either of the home visits.
The Covering CPS testified that before Nathan was placed with his grandmother, she believed an ACS caseworker would have made a home visit to conduct an inspection similar to the one she did. She further testified that she did not believe the absence of window guards or peeling paint in the apartment would have prohibited Nathan from being placed with his grandmother if there was a plan in place to rectify the safety hazards.
Dr. Christopher Sullivan
On cross-examination, Dr. Sullivan testified that the purpose of a skeletal survey is to ascertain whether there are any other unidentified injuries at the time of an evaluation, particularly healed injuries that may have gone unnoticed. He testified when there are multiple injuries at different stages of healing, it is significant because it is considered highly indicative of non-accidental trauma. Dr. Sullivan went on to specify that CMLs are not always fractures, but when they are, they are Salter Type II fractures, the type of which was observed on Nathan. He defined a Salter Type II fracture as one in which the fracture line crosses the growth plate and testified that they are most often caused by accidental means. Dr. Sullivan further expounded that the bone will break according to the force applied to it; thus, when it is bent too far sideways, frontwards or backwards, it does not discriminate based on whether such force is accidental or non-accidental.
Dr. Sullivan testified that he is familiar with Dr. Kleinman's article "Prevalence of the Classic Metaphyseal Lesion in Infants at Low Versus High Risk for Abuse" and that he is aware that this article concludes that CMLs are only found in infants with a high risk of abuse. Dr. Sullivan pointed out that Dr. Kleinman's study was conducted on deceased children with CMLs who had also suffered skull fractures. He did not believe that research involving such a highly specific control group could be generalized to all cases involving CMLs, especially when there is a single injury such as in Nathan's case. Dr. Sullivan also testified that he is aware of Dr. Kleinman's radiology text book which contains a chart listing different fractures and their varying levels of suspicion. Dr. Sullivan testified that he is aware that Dr. Kleinman characterizes CMLs as highly suspicious for abuse, but he stated that he does not agree with Dr. Kleinman's assessment.
On cross-examination, Dr. Sullivan further testified that although he reviewed the St. Barnabas medical records and the x-ray images taken at Montefiore, he did not examine Nathan nor interview the parents. He also testified that he did not speak with Dr. Nissenbaum, any radiologists at St. Barnabas, Dr. Sharkey or Dr. Hoffman-Rosenfeld. Dr. Sullivan clarified that at the point in time when he was asked to consult on this matter, a personal examination of the child would not have rendered itself useful given that there was already significant healing.
Dr. Sullivan ultimately opined that Nathan's injury was likely caused by accidental means; due to the appearance of his fracture line presenting in the front, it seems as if his foot was dorsiflexed too much, meaning that the front of the foot came up too far towards the front of the tibia and buckled in that direction. Dr. Sullivan testified that the child's body weight falling is enough force to cause a minimally displaced fracture, such as what Nathan has. If there was a greater force, it would have displaced the fracture and the ankle would have been deformed. Ultimately, there was just enough force to break, but not to displace the bones. Further, Dr. Sullivan opined that the nature of Nathan's injury is consistent with his mother's history of events.
The Respondent Father
Mr. G commenced his testimony by providing his daily routine around September 25, 2019. He noted that he wakes up at 5 a.m. and leaves home between 5:30 and 5:40 a.m. to get to his job in Brooklyn by 8 a.m. He works until 4:30 p.m. and gets to the Bronx by 6:30 p.m. in order to pick up Nathan by 6:40 p.m. from the home of his maternal great grandmother. Mr. G testified that he usually stays at the great grandmother's home for half hour. After the child's great grandmother changes his clothes, Mr. G takes his son home.
On September 25, 2019 in particular, Mr. G testified that his routine did not deviate from his norm. Mr. G testified that Ms. C met him at her grandmother's home and that together, they walked home with Nathan in his stroller. When they arrived home, he put Nathan in the crib while Ms. C went to the bathroom. He testified that he then went to the kitchen to make a baby bottle. While he was in the kitchen and while Ms. C was coming out of the bathroom, he heard a scream and went to check on Nathan who was crying. Mr. G testified that he observed Nathan to have a busted upper lip with blood and that he washed the blood off. Nathan cried for approximately 20-30 minutes as his mother held him in her arms. During that time frame, Mr. G testified that he fixed a bottle with milk so that he and Ms. C could feed Nathan and put him to sleep. Mr. G testified that once Nathan stopped crying, he fell asleep and slept through the night.
Mr. G testified that the next morning on September 26, 2019 when he woke up to get ready for work, Nathan was still asleep, and he did not awaken before he left the home. After work, he went back home to greet Nathan, Ms. C, his father and his brother. Mr. G recalled that although his father and brother were home, neither of them were caring for or interacting with Nathan. That evening, Nathan was with Ms. C and was mostly quiet throughout the evening. However, Mr. G noted that when Ms. C was changing Nathan's diaper, he cried when his leg was touched. At that point, Ms. C expressed they should take Nathan to the emergency room and they all arrived at the hospital around 10 p.m. and ended up staying there all night.
Mr. G testified that prior to September 25, 2019, Ms. C and Nathan had only been living with him and his family for approximately two or three weeks. Prior to moving in with him, she and Nathan lived in the home of the maternal grandmother. When Nathan and Ms. C were not living in his home, Mr. G testified that he saw Nathan daily in the evenings between 7 p.m. and midnight at their home. During his visits, he would play with Nathan and put him to sleep.
Legal Analysis :
Whether analyzing a removal application under Family Court Act Section 1027 or an application for the return of children under Family Court Act Section 1028, the court is charged with determining whether removal is necessary to avoid imminent risk to the children's lives or health. In considering this question, the court must determine whether there is a risk of "serious harm or potential harm to the child[ren]." There must be evidence that the harm or danger is "imminent," that is, "near or impending, not merely possible" ( Nicholson v. Scoppetta , 3 NY3d 357 [2004] ). Additionally, if the Court determines the existence of imminent risk, the court is then required to determine whether the risk of harm to the child of remaining in the home outweighs the harm that might result from removal and which course is in the child's best interest. Id. at 378. Finally, the statute further requires that upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. In addition, the court must consider whether the risk can be eliminated or mitigated by reasonable efforts to avoid removal, such as issuing a temporary order of protection or providing services to the family. Id. at 378—379 ; Matter of Naomi R. , 296 AD2d 503 2d Dept. 2002)
This case is one in which there are varied and competing medical opinions regarding the manner in which Nathan sustained a fractured tibia. Throughout the course of this hearing, counsel presented a plethora of evidence to persuade this Court to view Nathan's injury to have been caused by either accidental or non-accidental means. However, as the Court has repeatedly stated throughout the course of this hearing, that is not the primary issue that the Court is charged with determining at this juncture. Rather, the precise question presented at this 1027 hearing is whether the child Nathan would be at imminent risk of harm should he be returned to the care of his parents pending a fact-finding hearing.
The evidence adduced at this 1027 hearing establishes that on the evening of September 26, 2019, the Respondent Mother and Respondent Father brought the child Nathan to St. Barnabas due to concerns that he was exhibiting signs of pain in his right lower leg. Upon arrival to the hospital, the parents, primarily Ms. C, described to the hospital staff the events that preceded the hospital visit, proffering a history that could possibly uncover an explanation for her son's pain. Nathan was kept overnight at the hospital and by the morning of September 27, 2019, he was diagnosed with having a non-displaced, acute fracture of the anterior distal tibial metaphysis, most compatible with a metaphyseal corner fracture.
Other than evidence of the fracture, the medical records in evidence establish that Nathan sustained no other injuries. There was "no evidence of acute or chronic fractures" anywhere else in his body, head, pelvis, upper extremities or left lower extremities. Additionally, the skeletal survey conducted at St. Barnabas further yielded unremarkable results, confirming that there were no other healing fractures in the child. While the records noted that this specific type of fracture can be seen in the setting of non-accidental trauma, they simultaneously noted that it can be seen in the setting of an accidental trauma. Finally, the ACS progress notes indicate that the attending physician informed the CPS that injury could have been accidental as well as non-accidental and that Ms. C's explanation had remained consistent and could be a possible cause for the injury. Upon the discovery of the fracture and prior to Nathan's discharge home, ACS was alerted, and an investigation commenced immediately in the early morning hours of September 27, 2019.
What remains undisputed is that despite the start of the resulting ACS investigation, Nathan was discharged home from St. Barnabas to the care of the respondents on September 27, 2019. It is significantly noteworthy to this Court that Nathan was taken to the hospital by his parents, treated and permitted to go home with his parents the very next day, despite the fact that a report was made to the State Central Register with concerns that the child's fracture might have been caused by non-accidental means. Between the time in which Nathan was discharged on September 27, 2019 through the date in which an emergency removal was conducted on October 8, 2019, the record establishes that Nathan was safely in the care of his parents all while being supervised by ACS. The record further establishes that for those 11 days, both Ms. C and Mr. G did everything they were asked to do, including, but not limited to complying with ACS supervision and taking Nathan for follow-up medical appointments at Montefiore on October 3, 2019 and October 8, 2019, respectively, with Dr. Sharkey, the pediatric orthopedist, and Dr. Hoffman-Rosenfeld, the child abuse pediatrician. As it pertains to imminent risk, ACS has failed to present any new information to this Court other than establishing that the parents fully complied with supervision, acted appropriately with the child and did everything that was asked of them.
It is also of great significance to this Court that on October 4, 2019, just one day after Nathan was seen by Dr. Sharkey, ACS completed a 7-day safety assessment and determined that Nathan was safe in the care of his parents as long as a safety plan remained in effect. The child continued to safely remain in the care of his parents for another 4 days, and it was not until October 8, 2019 when Dr. Hoffman-Rosenfeld informed ACS that the child's injury was consistent with abuse and not adequately explained by the parents that ACS decided to remove him. In the Court's view, there was nothing glaringly new about this information—St. Barnabas had already called in a report to the State Central Register, and on October 3, 2019, Dr. Sharkey also opined that the fracture was highly indicative of abuse. Nonetheless, Nathan remained in the care of the Respondent Mother and Respondent Father. Despite inquiring multiple times, it behooves this Court what new information presented itself that led ACS to deem it an emergency to remove Nathan from the care of his parents.
Altogether, this Court finds that ACS has failed to present evidence sufficient to show that if specific orders are implemented, the child would be at imminent risk at this time if returned to Ms. C and Mr. G. Furthermore, in balancing the risk of imminent harm against the harm that removal might bring, the Court is further compelled that continued removal is not necessary or in the best interests of the child Nathan. While the child was placed with his maternal grandmother upon his removal, he has nonetheless experienced trauma that is evidenced by his bouts of crying while waking up nightly, which his mother described as abnormal for him. The fact that Ms. C has had to sleep over at her grandmother's home to assist in soothing Nathan at night is only further proof of the harm this child has suffered as a result of being removed from his parent's care. In reaching its decision, the Court has carefully weighed all documentary and testimonial evidence before it. The Court has also considered the arguments made by all counsel and the concerns expressed by the Attorney for the Child and counsel for ACS.
Ultimately, ACS has failed to set forth any risk factors that would render it unsafe for Nathan to be returned to the care of his parents. Neither the Respondent Mother nor the Respondent Father have any prior child welfare involvement, criminal history or a history of domestic violence or substance abuse. During the October 6, 2019 visit to the case address, ACS deemed the home to be safe and suitable for the child. Furthermore, no information was brought to this Court's attention that would raise concerns about the manner in which the parents interact with and care for Nathan. Last but not least, the record is void of any evidence that leads it to believe that either parent would not abide by its orders if Nathan were to be returned to their care. Overall, the totality of the evidence presented at this hearing leads the Court to conclude that the child Nathan would not be at imminent risk of harm should he be returned to the Respondent Mother and Respondent Father at this time. In balancing the risks against the harms of removal, the Court finds that with a number of measures and services in place, any harm or imminent risk of harm that arose from the nature of events that led to the prolonged separation of Nathan from his parents can be reasonably mitigated (Naomi R. , supra).
For all the aforementioned reasons, the record as a whole, leads this Court to find that the continued removal of the child Nathan is unnecessary to avoid imminent risk to his life or health.
ORDERED, that the subject child Nathan is temporarily released to the custody of the Respondent Mother and the Respondent Father, pursuant to FCA § 1027, pending a final order of disposition or further order of the court, under the supervision of ACS and upon the following terms and conditions:
The Respondents shall cooperate with ACS supervision over their household, including allowing ACS access to complete announced and unannounced visits to the home;
The Respondents shall accept reasonable referrals from ACS given to them in writing and copied to all counsel.
The Respondents are to ensure that Nathan is brought to any and all medical appointments and that they comply with follow up recommendations;
The Respondents are ordered to accept a referral for home dyadic therapy;
The Respondents are ordered to accept a referral for Intensive Preventive Services.
The Respondents are ordered to accept a referral for the ACS Family Preservation Program (FPP) services until Intensive Preventive Services are in place;
The Respondents shall sign releases for ACS to monitor their progress in services;
The Respondents shall not leave the child alone without appropriate adult supervision being in place at all times;
ACS is ordered to make a referral for dyadic therapy forthwith;
ACS is ordered to make a referral for intensive preventive services within (5) days from the date of this decision.
ACS is ordered to make a referral to FPP within five (5) days from the date of this decision; and
ACS is ordered to visit the case address every calendar day until FPP services are in place.
WHEREFORE based on the foregoing, the application for removal of the child made by ACS pursuant to FCA § 1027 is denied. Notify parties.