Opinion
NA 21833-4/11
02-28-2012
In the Matter of T.A. T.B. Children Under the Age of Eighteen Years Alleged to be Abused/Neglected by Dr. A., Dr. B., Ms. C., Respondents.
Bolaji Olasokan, Esq. and Wayne Palma for Petitioner, New York City Children's Services Joanna Galia, Esq. for Respondent Father, Dr. A. Richard Miller, Esq. for Respondent Mother, Dr. B. Maura Keating, Esq. for Respondent Nanny, Ms. C. Marianne Allegro, Esq., Attorney for the Children T.A. and T.
Attorneys:
Bolaji Olasokan, Esq. and Wayne Palma for Petitioner, New York City Children's Services
Joanna Galia, Esq. for Respondent Father, Dr. A.
Richard Miller, Esq. for Respondent Mother, Dr. B.
Maura Keating, Esq. for Respondent Nanny, Ms. C.
Marianne Allegro, Esq., Attorney for the Children T.A. and T.B.
Douglas E. Hoffman, J.
Following fact-finding in these Abuse proceedings pursuant to Family Court Act, section 1012(e), the court sets forth below its findings of fact and conclusions of law. New York City Children's Services ("NYCCS") filed the instant petitions alleging that respondents, Dr. A. and Dr. B., abused T.A. and T.B., their twin children. Respondent Ms. C. was the nanny for the children during the pertinent time period.
Petitioner originally filed against a fourth respondent, Ms. D., who was the baby nurse for the twins prior to Ms. C. becoming the nanny. Based upon the uncontroverted evidence adduced during the early portion of the trial, indicating that it was not possible from a temporal perspective for Ms. D. to have committed the abuse in question, the parties acceded to the court's suggestion that the petitions be dismissed as against Ms. D. Ms. D.'s employment ended on March 25, 2011 and all witnesses agreed that the injuries in question occurred after that date.
The children were born six weeks prematurely on January 21, 2011. T.A. was released from the hospital on February 2, 2011 and T.B. one day later. Undisputed evidence shows that the children suffered no relevant ill effects from the somewhat premature birth and that T.A.'s bones were developing in an age-appropriate manner. On May 2, 2011 and May 3, 2011, medical personnel at two hospitals determined that T.A. had suffered a fractured humerus and four broken ribs in at least two, and possibly three, separate incidents of abuse. There was no question but that these injuries were not accidental in nature and resulted from the application of extreme and inappropriate force. The injuries were unquestionably indicative of child abuse. Similarly, there was no question but that the three respondents, alone or together, had exclusive child care responsibilities for T.A. during the possible periods of time during which the injuries occurred.
Not able to pinpoint which of the care givers committed what it considered to be abuse of T.A., NYCCS filed the instant petitions on May 6, 2011, relying upon FCA section 1046(a)(ii), the functional equivalent of a res ipsa loquitur presumption. NYCCS alleged that respondents derivatively abused T.B. After the court initially removed the children from the parents and placed them under the care of the paternal grandparents, it ultimately permitted the children to reside with their parents with an order of protection requiring that neither parent be with either child in the absence of the grandparents or a newly-hired nanny who stayed in the parents' home 24 hours per day.
After affording all parties full opportunity to investigate potential expert and other witnesses, the court commenced trial in September 2011 and concluded the fact-finding on December 13, 2011. The court received written summations by January 13, 2012 and this decision and order follows.
T.A.'S INJURIES
The injuries T.A. suffered at two to three months of age were severe and brutal. Petitioner presented the testimony of two expert medical witnesses: Dr. Timothy E. Radomisli, who was qualified as an expert in the field of pediatric orthopaedics; and Dr. Jack Rabinowitz, who was qualified as an expert in the field of radiology. Respondent father presented the testimony of Dr. Jean Choi-Rosen, who was qualified as an expert in the field of pediatric radiology. Based upon those portions of these three experts' testimony that were uncontroverted, it was established that as of May 3, 2011, T.A. had healing fractures of his 8th, 9th and 10th ribs; a fresh fracture of his 7th rib; and a fresh fracture of his humerus. To a reasonable degree of medical certainty, T.A. sustained these fractures during more than one incident of abuse. The subject child could not have caused these injuries and they could not have resulted from a fall.
The humerus is the long bone of the arm or forelimb, extending from the shoulder to the elbow.
There was no underlying medical condition that could have caused these fractures. The parties contested at trial the precision of the dating of the fractures, as the dating of the fractures play a major role in determinating who had access to the child at the times of the abuse and, consequently, whether and in what manner the res ipsa loquitur presumption should apply, or, alternatively, who should directly be found to have committed this abuse.
EXPERT TESTIMONY AS TO TIMING OF T.A.'S INJURIES
In addition to Dr. Choi-Rosen, respondent father presented the testimony of the children's treating pediatrician, Dr. Louis G. Monti, who testified as to his periodic examination of the infants. The court finds that all four expert witnesses testified credibly. The court credits the testimony of both Dr. Rabinowitz and Dr. Choi-Rosen, who proffered expert opinions only, based upon review of records and x-rays. The court also credits in its entirety the combined expert and fact testimony of Dr. Radomisli and of Dr. Monti. These credibility findings are based upon the logic and consistency of their testimony, as well as upon the court's observation of their demeanor on the witness stand.
Dr. Timothy Radomisli
Dr. Timothy E. Radomisli testified for petitioner. Dr. Radomisli is a pediatric orthopaedist at Lenox Hill Hospital and is a Clinical Assistant Professor at both Lenox Hill Hospital Department of Orthopaedics and The Mount Sinai School of Medicine Department of Orthopaedics. He is certified by the American Board of Orthopaedic Surgery. Respondent father brought T.A. to see Dr. Radomisli on Monday, May 2, 2011. Very significantly, Dr. Radomisli credibly testified that respondent father stated "very specifically" that he bathed T.A. during the evening of Sunday, May 1, 2011 and that the baby "was fine". The doctor testified that respondent father stated that he and the mother noticed sometime Sunday night into Monday morning that T.A.'s left arm was swollen and immobile.
Dr. Radomisli was adamant that he had a "very vivid" recollection of the conversations with the father and later with the father and mother together, as this type of fracture on such a young child was very rare, and that he discussed the circumstances at length with the father, himself a physician, to figure out what had happened. Dr. Radomisli's conversations with the parents were specifically geared toward trying to establish a time-line for and the cause of the child's injuries.
Varying significantly from the parents' testimony later in the trial, Dr. Radomisli testified that the father stated to him that he had bathed T.A. and then had put him in pajamas on Sunday night. Dr. Radomisli reported the father's statement that the father would have noticed had there been something wrong with T.A.'s arm. In response to Dr. Radomisli's question as to whether or not anyone else was present in the home or caring for the child the night or day before they brought the child to his office, the parents stated that the nanny had left the prior Friday evening. The parents reported no prior injury or fall to this witness.
Dr. Radomisli stated that he performed a comprehensive infant orthopaedic examination that revealed a swollen, tender left upper arm. There was palpable crepitus at the site of the fractured humerus. X-rays of the left humerus revealed "a transverse fracture of the mid-shaft and, incidentally, a posterior rib fracture." The next day, T.A. and his sister were sent to Mount Sinai Hospital for skeletal surveys to rule out other injuries.
As used here, crepitus is a crackling or grating sound of a broken bone, heard when the broken ends of the bone rub together.
In terms of dating the humerus fracture, Dr. Radomisli relied upon the x-ray, his examination of T.A., his extensive experience and the parents' statements as to the pertinent events. Immediately upon T.A. being brought into the doctor's office, Dr. Radomisli observed that the left arm was swollen and immobile. T.A. was acutely tender and the fractured humerus was obvious on palpation. As the witness stated, "[t]he baby was wailing," and clearly in pain, inconsolable.
Dr. Radomisli testified that he normally dates such a fracture "based on the history, the degree of swelling and tenderness, the crepitus," and opined that, within a reasonable degree of medical certainty, the fracture to T.A.'s arm was less than 24 hours old. A child of T.A.'s age would have exhibited signs of discomfort and/or pain "immediately, instantaneously" upon infliction of injury, and would have exhibited signs of pseudoparalysis (not moving the arm). Upon cross-examination, the doctor stated that one would expect to observe a similar reaction if someone had tried to touch the child, including dressing the child. In response to the question as to what conclusions the doctor would draw as to the timing of the humerus fracture if he only had the x-ray, but no history, the witness indicated that the fracture could have been within 24-48 hours.
Opining that, within a reasonable degree of medical certainty, the arm fracture could not have been caused accidentally, Dr. Radomisli explained that a child of this age could not inflict the arm fracture on himself. At that time, T.A. did not sit or bear weight on that arm and the physician stated that this "is an exceedingly rare fracture." The expert witness explained further that "long bone fractures in non-ambulatory children are indicative of non-accidental trauma, as are having multiple fractures in varying degrees of healing." The fracture was transverse, indicating a bending force. The parents provided Dr. Radomisli with no explanation for the injuries.
With respect to his experience in the area, Dr. Radomisli noted that he is a fellowship-trained pediatric orthopaedist with more than 15 years experience in practice. He obtained his M.D. from The Mount Sinai School of Medicine in 1990, served as a Resident in Orthopaedic Surgery at Mt. Sinai from 1991-94 and as Chief Resident from 1995-96. He has read and interpreted over 50,000 x-rays, of which approximately 10,000 were of children in T.A.'s age range. Dr. Radomisli testified that he sees fractures on a daily basis. He deferred to the pediatric radiologist as to dating of the rib fracture. Dr. Radomisli stated that pediatric orthopaedists do not treat rib fractures, as they do not need treatment. In this case, the posterior rib fracture led to the skeletal survey that in turn led to the diagnosis of other rib fractures.
As noted, the court found Dr. Radomisli to be a highly credible witness with detailed, precise recollection of the pertinent events. The court discredits the testimony of respondent parents to the extent that it is inconsistent with Dr. Radomisli's testimony. Regardless of whether it was Dr. Choi-Rosen or Dr. Collins, or both, with whom Dr. Radomisli consulted concerning x-rays, Dr. Radomisli was perfectly clear, consistent and insistent as to the statements the parents made concerning the timing of T.A.'s apparent reaction to his humerus fracture.
Dr. Jack Rabinowitz
All parties consented to having Dr. Jack Rabinowitz, petitioner's second expert witness, qualified as an expert in the field of pediatric radiology. Dr. Rabinowitz presented as an extremely impressive witness. Dr. Rabinowitz has been a radiologist for more than 50 years, is a tenured professor at Mount Sinai School of Medicine, and is Chairman of Radiology at three universities. He has been teaching pediatric radiology for more than 50 years and has written "the textbook" on pediatric radiology.
Dr. Rabinowitz analyzed the various radiological films taken of T.A. and explained them while on the witness stand, with the films (petitioner's exhibit 10) displayed clearly in the courtroom. The radiological films were taken on Tuesday, May 3, 2011, the day after Dr. Radomisli's head to toe examination of T.A. Dr. Rabinowitz explained the four rib fractures and the fracture to the left humerus and how they should be dated.
The expert witness highlighted T.A.'s 8th, 9th and 10th ribs, which visually differed from his other ribs. These ribs appeared dense and thick, although a slight fracture could still be observed. The thickness, Dr. Rabinowitz explained, represents callus formation, indicating three healing fractures. Ribs 8, 9 and 10 appeared to have similar callus formation, leading to the conclusion that these fractures probably occurred at the same time. Dr. Rabinowitz testified that, although there can never be 100% certainty, soft callus indicates an injury 10-14 days old, while hard callus points to an injury 14-21 days old. Most of the callus observed concerning the fractures to T.A.'s 8th, 9th and 10th ribs was soft callus, leading to the conclusion that these fractures occurred closer to 10-14 days prior to the May 3rd x-rays, placing the time of injury as between April 19, 2011 and April 23, 2011.
As used here, callus is a mass of fibrous tissue, calcium, cartilage and bone that forms progressively during the healing of a bone fracture. The soft callus, Dr. Rabinowitz explained, does not appear as the same density as the bone. The soft callus means that there is inflammatory action around the tissue. When developing ossification, soft tissue mass becomes harder, more dense. When it hardens, it looks like bone, but is larger in density, which can be observed by the trained eye.
The fracture of the 7th rib and of the left humerus bone presented quite differently. Dr. Rabinowitz testified that the chest x-ray revealed a fracture right through T.A.'s 7th rib, with the margins relatively sharp, with no evidence of callus formation, indicating a fresh fracture of 0-5 days old occurring at a time different from the other healing rib fractures. This would place the time of fracture of the 7th rib as between April 28, 2011 and May 3, 2011. Had there been even the beginning of soft tissue, the witness would have dated the injury to closer to 10 days old.
Similarly, Dr. Rabinowitz observed the humerus fracture in the chest film and other films. The witness pointed out the fracture on the film going straight through, with no callus formation whatsoever. The expert witness placed the time of this relatively fresh fracture as 0-10 days prior to the May 3, 2011 film. This would place the time of fracture of the left humerus as between April 23, 2011 and May 3, 2011. Of course, these fractures were already observed by Dr. Radomisli on May 2, 2011, so May 3rd was not a possible date.
Dr. Rabinowitz opined that, to a reasonable degree of medical certainty, the fractures were sustained at more than one time. He stated further that T.A. could not have caused these injuries to himself and that not even a fall could have caused the injuries. The expert witness explained that a single rib fracture of a child this age is a 95% indication of child abuse. The probability rises with multiple fractures and increases further when the fractures are at different times. In the instant case, the rib fractures could only have occurred by pressure on the anterior portion of the chest. The abnormal pressure on the ribs, particularly those near the vertebral body, caused them to snap. Not only are the rib fractures not the result of accidental trauma, the witness testified, but the fracture of the humerus, by itself, indicates child abuse when the child is not ambulatory.
Dr. Louis G. Monti
Respondent father presented the testimony of the children's treating pediatrician since birth, Dr. Louis G. Monti. The parties stipulated that Dr. Monti was an expert in the field of pediatrics. As with Dr. Radomisli, Dr. Monti served as both an expert and fact witness. Dr. Monti has been a pediatrician for 27 years and is affiliated with Mt. Sinai Hospital. Dr. Monti testified as to his periodic examinations of both children, indicating that as late as April 15, 2011, the children were thriving and their physical examinations were normal. The import of this testimony was two-fold: First, assuming the accuracy of this testimony, and the court does credit this uncontroverted testimony, the individual or individuals inflicting these injuries upon T.A. did so after April 15, 2011; second, Dr. Monti's testimony tended to undercut to a limited extent Petitioner's position that the injuries constituted "abuse" within the meaning of FCA section 1012(e), as opposed to "neglect" within the meaning of FCA section 1012(f), as he opined that, within a reasonable degree of medical certainty, T.A. suffered or will suffer no long-term effects from his injuries. Dr. Monti explained that, at the time of T.A.'s injuries, there would have been a long-term risk if the baby had torn a nerve or blood vessel, but believed that T.A.'s injuries were of a type that would heal with no complications. The court credits Dr. Monti with testifying honestly and to the best of his ability in this regard; however, the doctor also stated that he had never before seen such injuries and had never treated such injuries, acknowledgements that reduced the impact of his opinion in this regard.
Dr. Jean Choi-Rosen
Respondent father proffered the testimony of Dr. Jean Choi-Rosen, who, by stipulation, was qualified as an expert in the field of Pediatric Radiology. In her capacity as a Radiologist at Lenox Hill Hospital, Dr. Choi-Rosen read films of T.A. on May 2, 2011. Dr. Choi-Rosen opined that, within a reasonable degree of medical certainty, T.A.'s left humerus fracture could be less than seven days old or even less than 4 days old. As did Dr. Rabinowitz, Dr. Choi-Rosen acknowledged that the dating of fractures is not an exact science. Dr. Choi-Rosen explained that the lack of subperiosteal bone formation formed the basis for this dating. The expert witness testified that the first film line across the bone fracture of the mid-humerus was easily visible on the May 2, 2011 films. Since there was no subperiosteal bone formation, the fracture could be 0-4 days or 0-10 days from the acute event. That would place the injury as occurring as early as April 22, 2011 to May 2, 2011 or April 28, 2011 to May 2, 2011. The same observation was made and dating conclusion drawn concerning the 7th rib fracture. As there was no new bone formation, the doctor could not state the injuries were 24 hours or less old. However, that conclusion is from a radiological perspective only and did not and could not account for the history-based conclusion of Dr. Radomisli that the injuries were 24 hours or less old.
Subperiosteal refers to being situated or occurring beneath the periosteum, which is a membrane that lines the outer surface of all bones, except at the joints of long bones.
Dr. Choi-Rosen also viewed later films taken at Lenox Hill Hospital on May 9, 2011. In these films, the doctor observed a difference in the appearance of the left mid-humerus fracture. There now appeared a little angulation of the fracture, with new bone formation, appearing cloudy, faint-white, indicating healing was taking place. The 7th rib fracture now showed several areas of new bone formation, essentially confirming for Dr. Choi-Rosen her earlier analysis as to the time frame of the original injuries.
The May 23, 2011 Lenox Hill Hospital films showed much more white at the areas of fracture, consistent with the healing process of laying down new bone to heal itself. The bones were healing at the expected rate, according to Dr. Choi-Rosen. The expert witness explained that subperiosteum new bone formation turns into soft/hard callus with remodeling of the bone, so that one would not know one year later that the bone had been broken. The white, cloudy appearance on the films is callus. Dr. Choi-Rosen stated that one could not say with a reasonable degree of medical certainty whether it was hard or soft callus, with soft callus generally 14-21 days and hard callus approximately 21-40 days. This witness's analysis of the May 2, 2011 film is generally consistent with the time frame set forth by Dr. Rabinowitz, which establishes, from a radiological perspective, the very short period of time during which the acute injuries to T.A.'s humerus and 7th rib could have occurred. To the extent that the testimony of these two experts differs in any material respect, the court credits the testimony of Dr. Rabinowitz based upon his superior experience and expertise.
APPLICABLE LAW
FCA section 1012(e) defines an abused child in pertinent part as:
[a] person less than 18 years of age whose parent ... inflicts or allows to be inflicted upon the 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 or
creates or allows to be created a substantial risk of physical injury to such child by other
than accidental means which would be likely to cause death or serious protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ ...
FCA section 1012(f) provides that a "neglected child" is one, (i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent ... to exercise a minimum degree of care ...
(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof ...
Relying upon the logic underlying the negligence law doctrine of Res Ipsa Loquitur, FCA sec. 1046(a)(ii) declares 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 reasons of the acts or omissions of the parent of such child shall be prima facie evidence of child abuse or neglect."
Under this rule, a prima facie case of abuse or neglect can be established with respect to any legally responsible person who was caring for the subject child during the time period within which the injuries or condition arose. Thus, the identity of the actual abuser need not be established. See Matter of Philip M., 82 NY2d 238, 624 N.E.2d 168, 604 N.Y.S.2d 40 (1993).
The evidentiary presumption commonly comes into play where, as here, the expert testimony established that the subject child's injury was not attributable to an accidental cause, but was instead the result of intentional or negligent conduct.
The evidentiary presumption in section 1046(a)(ii) operates like many other legal presumptions. It does not shift the overall burden of proof from Petitioner to Respondents; however, when evidence sufficient to activate the presumption has been presented, a finding can be made unless Respondents satisfy their burden of coming forward with an adequate explanation. See Matter of Philip M., supra.
It is generally not sufficient for a respondent merely to deny that he or she caused the injury or knows how it occurred, or to allege generally that others had access to the child, since the respondent has not thereby explained the injury. Id. Only a credible explanation for the injury can rebut the presumption. Id. All of the relevant evidence in the instant proceedings establish that T.A.'s injuries were caused by other than accidental means. Thus, to establish its prima facie case, Petitioner had to and did in fact demonstrate an injury of such a nature as would not ordinarily occur absent an act or omission by Respondents and that Respondents were T.A.'s caretakers at the time of the injury. See In Re Benjamin L., 9 AD3d 153, 780 N.Y.S.2d 8 (1st Dept. 2004).
To satisfy Respondents' burden of explanation or of going forward (although the burden of proof always remains upon Petitioner), Respondents needed to provide a reasonable and acceptable explanation of how injuries of T.A.'s nature and degree would have happened. Id. and citations therein. Respondent parents' self-serving, or contradictory denials or unreasonable explanations, as here, are insufficient to rebut Petitioner's prima facie proof.
ANALYSIS OF THE LAY TESTIMONY
Against the backdrop of the substance and timing of the injuries to T.A., as well as of the applicable law, the court next analyzes the testimony of the lay witnesses. All three respondents and Bernadine Stevens, the Child Protective Specialist from NYCCS assigned to this case, testified. Respondent C. also presented the rebuttal testimony of Detective Elizabeth McColgin, assigned at the time to the NYPD Manhattan Child Abuse Squad, who interviewed all three parties on or about May 3, 2011.
Bernadine Stevens, CPS NYCCS
Bernadine Stevens, the Child Protective Specialist for NYCCS, was assigned to the case as of May 3, 2011. On that date, she interviewed the parents, Ms. C. and Ms. D., the latter by telephone. Each interview was conducted separately. Ms. Stevens spoke with Ms. C. on May 3rd at Mt. Sinai Hospital, together with Detective McColgin. Ms. Stevens reported that Ms. C. stated that she started working full-time for the A-B family on April 11, 2011 and last worked for the A-B family on Saturday, April 30, 2011. Ms. C. told Ms. Stevens that she started working two to three nights per week for the family prior to full-time work, as she was getting acquainted with the family and their routines. At that time (late March), Ms. D., the baby nurse, was still working for the family and the parents were in the home as well.
Ms. Stevens testified that Ms. C. told her the following: On April 30, 2011, she went to the home to take care of the children, arriving approximately 9:00 AM. The parents were present. Ms. C. did not observe any behavior on the part of the subject children to indicate that anything was wrong with them. At about 12:30 PM, the parents left the home and Ms. C. remained alone with the twins for about two hours. When the parents returned at about 3:00 PM, Ms. C. left for the day. Ms. C. believed that the children were fine and noticed nothing different about the children when she left. She had observed that T.A. was usually more fussy than T.B.
Ms. Stevens also spoke with Ms. D., the baby nurse. In relevant part, Ms. D. told Ms. Stevens that Ms. C. started working with the family while she was present so that Ms. C. could learn the routine of the children.
The Child Protective Specialist interviewed the mother, Dr. B., on May 3, 2011 at Mt. Sinai Hospital. Ms. Stevens testfied that respondent mother told her in pertinent part: On Friday, April 29, 2011, she asked the nanny to work that Saturday, April 30th. Ms. C. arrived at the home at about 9:00 - 9:30 AM. Both parents were home. The father left to go to work at about 11:00 AM. The mother and nanny remained at home together with the children until the father returned home. The subject children were fine, with nothing out of the ordinary. T.A. is a fussy child, who cries a lot. Ms. C. left about 3:00 PM that day. The parents went for a walk with the children, bathed them and put them to bed. The mother did not notice anything unusual about T.A., who is usually cranky. Upon determined cross-examination, Ms. Stevens insisted that the mother stated that T.A. was a fussy child, directly contradicting the mother's testimony.
Consistent with what appeared to be an attempt to affix blame to Ms. C. and, earlier, to Ms. D., the mother volunteered during her May 3rd interview with Ms. Stevens that on April 21, 2011 she noticed that T.A. seemed hoarse when she returned from work. The nanny allegedly told her that T.A. was crying extra that day. This was the only time prior to May 1st that the mother noticed anything unusual about T.A.
Ms. Stevens specifically asked the mother on May 3rd what, if anything she noticed about T.A. on April 30th and May 1st. The mother responded that on May 1st, when her husband was giving T.A. a bath, T.A. was not moving his left arm. They bathed him and placed him in the crib. The father dangled a piece of paper over T.A.'s face, but T.A. moved only one arm. T.A. went to bed that evening. The mother reported to Ms. Stevens that T.A. awoke that night. The father stayed with T.A., cuddling him, to make sure that he was alright. They gave T.A. a pacifier, but he still cried. When T.A. awoke again, at about 5:00 AM, Monday morning, May 2nd, they noticed that T.A.'s arm was swollen. The father called the child's pediatrician, who told them to bring the child to the office later that day.
The witness asked the mother about the timing of events on Sunday, May 1st. The mother stated: Both parents were home. The children awoke at about 7:00 AM, appeared fine, with nothing unusual observed. They were fed and bathed. Later that morning, the father went to work. The mother's father and step-mother came to the home. The mother did not notice anything different regarding T.A. when her father and step-mother left. The mother then was alone with the subject children until the father returned from work that day. The court notes that the maternal grandfather and the step-maternal grandmother did not testify in this matter.
Ms. Stevens testified that she spoke with respondent father at Mt. Sinai Hospital on May 3, 2011, with Detective McColgin present. The father presented Ms. Stevens and Detective McColgin with a time line as to what happened on Sunday, May 1st regarding T.A. The father told them that: The subject children awoke about 7:00 AM. The parents fed and bathed them. The father left for work about 11:00 AM, leaving the mother alone with the children. The father did not return until about 2:00 PM. When he returned, the mother's father and step-mother were with the mother in the home. The in-laws remained for awhile, the parents fed the children and then went for a walk with their children, returning about 5:30 PM. It was unclear whether it was the father alone, or both parents, who fed and bathed the children at that time, but it appears that the father gave both children their baths. During T.A.'s bath, the father noticed that T.A. would not move his left arm. He placed T.A. in the crib, dangled a piece of paper, but T.A. did not move that arm. They put the children to bed that evening. Later that evening, T.A. woke up crying, but settled down for a period of time after the father gave him a pacifier. The father reported that about 5:30 AM on Monday morning, May 2nd, T.A. woke up again crying. The father went in to console him and noticed that T.A.'s left arm was swollen. The father called the pediatrician's number and was told that he could bring T.A. in to the office around noon that day. They took T.A. to the pediatrician's office and were referred to a radiologist. The father took T.A. to the radiologist, who informed him that T.A. had a humerus fracture of the arm.
Both parents told Ms. Stevens that they had no knowledge of how T.A. sustained his fractured humerus. Ms. Stevens had no reason to prevaricate and the court observed her to be an honest, forthright witness with good present recollection of pertinent events. Ms. Stevens's later rebuttal testimony again contradicted the testimony of the mother. As set forth below, the mother had testified that she told Ms. Stevens that she heard T.A. crying on April 29th when she returned from work. Ms. Stevens testified that the mother did not mention this at all and that the mother did not tell her that T.A. woke up about 3:00 AM that night crying. Ms. Stevens's testimony supports the notion that no one in fact noticed any injury to T.A. prior to some time during May 1st, casting doubt on the participation in any injury by Ms. C., who last had contact with the children more than 24 hours prior to any injury being observed by anyone. Her testimony also undercuts what appeared to be a calculated strategy by respondent parents to attempt to tie Ms. C. to the injury time frame.
Ms. C., Respondent Nanny
Respondent Ms. C. has been a nanny for ten years for various children in New York City, with her longest stint lasting three and one-half years. She had never been fired, no complaints were ever lodged against her, and no State Central Registry (SCR) calls made about her. She started working for the A-B family for one to two days per week in March 2011 and full-time in April 2011. She was referred to the parents by Ms. D.. She generally worked Monday through Friday, 7:00 AM - 6:00 PM. At times, she was called to come into work on weekends.
Ms. C.'s job was to take care of the children and chores, doing the laundry, bottles, taking the children outside, making sure everything was in order. She had no problem with either parent and never observed bruises on either child.
In response to one of several unfounded suggestions or insinuations of alternative bases for T.A.'s injuries raised by respondent parents, Ms. C. testified that she was the only person employed to take care of the babies and that she never let Ms. D. or anyone other than the cleaning lady or dogwalker into the house after she started working at the home. Once it became apparent that Ms. D. had ceased employment well before any of the injuries occurred, respondent parents suggested that Ms. C. may have let Ms. D. into the home after her employment had ceased, thereby attempting to show that another adult may have had access to the children during the pertinent time frame. When asked directly by the court whether or not there was any foundation for this suggestion, none was provided.
Ms. C. testified that on Saturday, April 30, 2011, respondent mother asked her to come in to work because respondent father had to work. The court found that there was never any indication as to why Ms. C. needed to come in on her time off when the mother was or could be alone with the children. Ms. C. was occasionally asked to stay overnight in the home when the father was on call. Ms. C. arrived at the home at 9:30 AM and the mother was home alone with the children. The mother told her that all was fine with the children and they proceeded to feed the babies. Ms. C. was alone with the children for about two and one-half hours during the afternoon, and she left to return home about 3:30 - 4:00 PM that day. At the time she left, T.A. appeared perfectly normal and was asleep. Ms. C.'s testimony that at no time during April 30th or May 1st, anyone called her to ask her whether anything had happened to T.A., was uncontroverted. It appears to the court to be unusual that the parents, who would call Ms. C. to work as their schedule dictated, would not ask Ms. C. if anything happened to T.A. on April 30th or May 1st if they had observed anything seriously amiss or had thought that someone may have harmed the child.
The nanny saw T.A. next on Monday morning, May 2nd, the day the parents were to bring T.A. to the pediatrician and then the hospital. When Ms. C. arrived at the home at 7:00 AM, the mother greeted her at the door and said that she thinks that something may be wrong with T.A. The mother explained that she did not think that it was anything serious, but that her husband thought it was serious. T.A. was asleep at that time. After the mother indicated that the problem was with T.A.'s left arm, Ms. C. touched the arm gently and he gave a little cry. Ms. C. testified that she told the mother that they would have to call the doctor and they did so. The witness did not know whether or not the parents had already called the doctor. After the parents left that morning, Ms. C. fed the children from the bottle between 9:30 - 9:45 AM. When she went to change T.A., she noticed that his arm was swollen. The witness stated that she was shocked and called or texted the mother that something was definitely wrong. The mother texted Ms. C., telling her to get T.A. ready to go to the hospital. The mother texted again later, stating that the father would take T.A. to the hospital. Ms. C. remained at home with T.B. The father returned home around noon to take T.A. to the hospital. Ms. C. testified that during that morning, T.A. was calm unless someone touched his arm.
The next day, May 3rd, the mother accused Ms. C. of harming T.A. and fired her. Ms. C. denies ever squeezing or putting pressure on T.A.'s chest or bending his arm at an unusual angle. She stated that she never accidentally or deliberately hurt T.A.
Dr. A., Respondent Father
Dr. A., respondent father, is a surgical oncologist, employed by Hospital A., working at Hospital B. since July 2008. He testified in relevant part: In March and April 2011, he worked his usual schedule, leaving the home 7:00 - 7:30 AM and returning 5:30 - 6:00 PM. He was on call an average of once weekly and one weekend per month. When he would return home from work, he would spend approximately two to three hours daily with the subject children when they were awake. The evening routine for the children was to complete their bath at about 5:30 - 6:00 PM, play a little, go to bed, wake up again, have a final bottle for the night, go to bed and sleep through the night.
When the parents found out that they were having twins, they arranged for a baby nurse, Ms. D., to be available when the children were discharged from the hospital. They wanted a baby nurse who specialized in multiple babies to clean the children, do chores around the home and take care of the children safely. The parents sought additional child care in preparation for the mother returning to work, so they hired a nanny, Ms. C., who came highly recommended through Ms. D.. Ms. C. provided references whom the parents contacted. Ms. C. started March 18, 2011. Her full-time hours were 7:00 AM - 6:00 PM. The parents requested that she stay overnight at times and she stayed overnight in the children's room. The parents were satisfied with Ms. C.
The father testified further that: The mother returned to work on April 18, 2011. On April 21, 2011, the parents observed T.A. with a hoarse cry. Ms. C. mentioned that he had been crying all day. The mother called the pediatrician and was told to observe the child for the next 24-48 hours to see if the hoarseness improved. T.A. was back to his "happy baseline" that morning. The court notes that there is no notation of any such call in Dr. Monti's records, introduced into evidence by the father. It is not clear, however, that the pediatrician's office would note such a call in its records.
Dr. A. stated that on April 29, 2011, he returned home at approximately 6:00 PM, finding the mother and Ms. C. at home. T.A. was cranky and anxious. That night and into the next morning, T.A. woke up, which was uncommon for him, in the middle of the night, crying. They gave him a pacifier and after about 20 minutes, he calmed down. On April 30, 2011, the children were happy as usual. When he returned from work, he went out with the children, came home, bathed and fed them.
On Sunday, May 1st, at about 5:45 PM, when bathing T.A., he observed that T.A.'s left arm was not moving as much as his right arm or both legs. During the bath, T.A.'s demeanor was otherwise happy, with the child playing and enjoying the bath. T.A. ate well and otherwise acted normally, so the father decided to monitor T.A. When he was dressing T.A., the father noted that the child's left arm was not moving. He put T.A. to bed.
T.A. awoke at 5:00 - 5:15 AM, unusually early, with his left arm in the same position as when the father had placed him down before. The father put crinkly paper in front of the child, who reached for the paper with his right hand only, not moving the left. Dr. A. contacted his father, who advised him to call the pediatrician. The physician on call returned Dr. A.'s call and told him to bring T.A. in at about 1:00 PM that afternoon, May 2, 2011. On the way to the pediatrician's office, T.A. was in a happy, great mood.
The pediatrician contacted Dr. Radomisli. The father and T.A. went to Dr. Radomisli's office. Dr. A. testified that T.A. was happy on the way to Dr. Radomisli's office, but became unhappy after it was determined that the child needed x-rays, was stripped to his diaper, went to the adult radiology waiting room, had to re-register, sit around and wait. The child, the father stated, was hungry and cold. After waiting 10-15 minutes for the x-ray, the father and T.A. were seen by Dr. Radomisli, who examined T.A. The father and Dr. Radomisli went over the results of the film, re-dressed T.A., pinning the sleeves of his shirt.
When the father returned home from Dr. Radomisli's office, T.B. and Ms. C. were home. He stated that when he told Ms. C. that T.A.'s arm was broken, Ms. C. replied that if he had fallen, he would have had more injuries. On rebuttal, Ms. C. testified that it was the mother who told her that T.A. had a broken arm. Ms. C. stated that she said that she was sorry to hear that. When the mother asked Ms. C. whether T.A. had fallen from the changing table, Ms. C. claimed that she responded that if T.A. had fallen from the diaper table, he would have more bruises than that and that Ms. C. would not keep that from the mother.
At about 5:00 PM on May 2nd, the father testified, he received a call from Dr. Radomisli, informing him that after they received a final reading of the x-rays, there was a left rib fracture in addition to the left arm fracture and that they were obligated to report this to NYCCS.
On May 3, 2011, the parents took T.A. to Mt. Sinai for the skeletal survey. NYCCS notified the parents that it would have someone meet them at the hospital. The father testified that he never inflicted any injury on T.A. and did not know how T.A. sustained his injuries.
Upon cross-examination by Petitioner, the father stated that he told Dr. Radomisli that the first time he had observed any problem with T.A.'s arm was during the bath during the evening of May 1st and never observed anything out of the ordinary regarding T.A. prior to May 1st. The father explained that this was because at the time he did not know what was going on and had no reason to report anything other than that which brought him to see Dr. Radomisli. The witness testified that, looking back, from Friday night, April 29 to Saturday morning, April 30th, he remembered T.A. waking and crying for 15-20 minutes; however, he admitted upon further cross-examination that he did not recall seeing anything out of the ordinary on April 30, 2011. The father denied recalling any conversation with Dr. Radomisli in which they reviewed the films together and brainstormed concerning possible causes of the break, but did acknowledge that he knew that it was important to share with Dr. Radomisli anything he could possibly think of to assist.
Respondent father introduced into evidence as Respondent's Exhibit B1-15 a series of controversial photographs he allegedly took of T.A. on April 29th and May 1st. The photographs are not dated, but the father's direct testimony as to when they were taken and their accuracy were sufficient to satisfy the required foundation for their admission, subject to assessment of the weight to be accorded the photographs and accompanying testimony. The father stated that he took daily photographs of both children. The father testified that he took the 15 photographs on April 29, 2011 and May 1, 2011. According to the father, the April 29th photographs show T.A. "apprehensive" when in the bathtub, apparently being bathed by someone other than the parents, presumably Ms. C. As T.A. tended to enjoy his baths, the father, in retrospect, found that this moment of apprehension was unusual and, presumably, somehow indicative of prior abuse by Ms. C. The court does find meaningful the photographs allegedly taken on May 1, 2011, indicating that T.A. was not moving his left arm following his bath. The court does not credit the father's interpretation of photographs allegedly taken of T.A. on April 29, 2011.
The father's testimony was inconsistent in fundamental material respects with the testimony of three independent witnesses, Dr. Radomisli, CPS Stevens and Detective McColgin. The court discusses Detective McColgin's testimony, infra. At no time during their interviews and conversations with the father and mother did the parents even mention any issue as to T.A. appearing in distress on April 29, 2011. The interviews and conversations among the three witnesses noted above and the parents were very close in time to the incident in question and the parents were keenly aware that all three were seeking to ascertain what had happened to T.A. and had sought the father's help in trying to resolve this issue. It was not until later in the case when the essentially undisputed evidence showed that it was most likely May 1, 2011 when T.A.'s symptoms were first observed that the harm to T.A. took place, placing the time frame outside of the time Ms. C. was with the child, that the parents proffered the unsupported and incredible story regarding T.A. suffering distress on April 29, 2011. Moreover, as Dr. Radomisli credibly testified, when an adult broke T.A.'s humerus through exertion of significant force, T.A.'s expression of extreme discomfort would have been instantaneous.
Dr. B., Respondent Mother
Respondent mother Dr. B. is 34 years of age and has a PhD in Clinical Psychology. She has been employed by Hospital C. for the past three and one-half years. Prior to this position, Dr. B. engaged in a post-doctoral fellowship in neuropsychology at University D.
During her testimony, the mother recounted the birth of the twins, the parents' decision to hire Ms. D. as the baby nurse and how they decided to hire Ms. C. based in part upon Ms. D.'s recommendation. Dr. B. acknowledged that both of Ms. C.'s references were positive and that Ms. C. starting working for the parents on March 18, 2011. The mother stated that Ms. C.'s responsibilities were to care for the twins, feed and dress them, interact and play with them to stimulate them. In retrospect, the mother testified that on March 18, 2011 that she was "a little apprehensive" about Ms. C. because she thought that Ms. C. might feel overwhelmed taking care of the twins on her own. The mother testified that after she returned to work on April 18, 2011, she grew to appreciate and be confident in Ms. C.'s care of the children.
The mother's testimony concerning their returning from work and finding T.A. allegedly being hoarse from crying on April 21, 2011, but soon returning to his normal, happy self, essentially matched that of the father. The mother did specify that she spoke with Dr. Stern at the pediatrician's office that evening who told her to monitor the child's behavior. Dr. Stern did not testify in these proceedings. The mother's testimony as to T.A. appearing to be harmed on April 29, 2011 went well beyond the testimony of the father. The mother stated that when she returned home from work that day before the father, T.A. was crying "as if in pain." The mother averred that Ms. C. stated that T.A. was crying that day as though he had been in pain, but that Ms. C. stated she did not know what had happened. Dr. B. stated that when she first returned home that day about 5:30 PM, T.A. "seemed a bit apprehensive," and did not seem happy.
Respondent mother testified in greater detail that the night of April 29th was unusual for T.A. in that he did not sleep for eight hours straight through the night. He awoke about 3:00 AM crying, and could not be comforted in the usual way, through the pacifier. It took 15-20 minutes to be consoled. Upon cross-examination, the mother insisted that she did tell both CPS Stevens and Detective McColgin about the alleged events of April 29th.. The mother also acknowledged that she understood that Ms. Stevens's role was to investigate what happened to T.A. and to share everything that she could think of regarding possible causation of T.A.'s injuries. She also stated that she shared with Dr. Radomisli all that she possibly could concerning possible causation. The mother denies harming T.A. or knowing how T.A. was injured.
The court finds that the mother was not forthright during her testimony and finds her testimony not credible in the most material respects, based upon the court's observation of her demeanor on the witness stand and, separately, upon the lack of logic and consistency to her testimony. The mother, tearful throughout her testimony, did not directly address a number of important questions and, upon persistent cross-examination, responded to questions by stating that she could not recall, when the questions called for responses that the mother should easily have recalled under the circumstances.
Very importantly, both Ms. Stevens and Detective McColgin, both of whom the court found to be highly credible witnesses, directly contradicted the mother's testimony that the mother told them about the alleged events of April 29th, just days before a series of investigative interviews with Ms. Stevens, Detective McColgin and Dr. Radomisli. It is inconceivable under the circumstances that the mother would not have raised the April 29th alleged events with any of the three independent and credible witnesses noted above, if in fact, anything that might have caused injury to T.A. had occurred.
In addition, the mother acknowledged upon cross-examination that, although she communicated with Ms. C. frequently through text messages prior to May 3, 2011, she never sent Ms. C. any text messages between April 30th and May 2nd inquiring as to T.A.'s condition or any cause for any possible injury to or upset of T.A. The mother could not recall whether on May 3rd, she asked Ms. C. whether T.A. had fallen from a diaper changing table. She could not recall that Ms. C. responded that T.A. did not fall. The mother could not recall whether she asked Ms. C. whether she was sure T.A. did not fall off the table. This witness could also not recall whether Ms. C. had said that if T.A. had fallen, Ms. C. would have seen a bruise on him. Dr. B. could not recall the specifics of the conversation she had with Ms. C. on May 3rd when Ms. C. reported for work.
Respondent mother did not recall telling both CPS Stevens and Detective McColgin that neither child was cranky, or telling them that T.A. had been the same as always, prior to the time that the parents noticed T.A.'s injury. When confronted with Ms. Stevens's progress notes, the mother stated that she had said that T.A. was the same as always, but explained that this statement was in the context of T.A.'s behavior on Saturday, April 30th. When asked whether the caseworker had been referring to that Saturday specifically when she asked the mother the question about how T.A. appeared, the mother could not recall. When questioned as to whether the mother had told the CPS that T.A. had appeared in pain on April 29th, the mother "could not recall with certainty." The same response applied to questions concerning telling Dr. Radomisli about the alleged events of April 29th. Ms. C. testified credibly on rebuttal that she never told the mother on April 29th that T.A. appeared to be in pain.
When questioned during cross-examination as to whether she said anything to Dr. Radomisli about T.A. not being able to move his arm during his bath on Sunday evening, May 1st, the mother responded that she did not bathe T.A. that night. When the question was repeated to obtain a direct response, Dr. B. testified that she did not give T.A. a bath, so she did not speak with Dr. Radomisli about T.A. in the bath that evening.
However, when questioned about her conversation with CPS Stevens and Detective McColgin the day after her discussion with Dr. Radomisli, the mother stated that she did not recall telling the CPS and the Detective that T.A. was not moving his arm in the bath the way he should the prior evening. Upon being shown CPS Stevens's progress notes to refresh her recollection, the mother acknowledged that she did tell them that her husband noticed that T.A. was not moving his arm that evening in the bath. The court finds the mother's testimony both not credible and very troubling.
Detective Elizabeth McColgin
Detective Elizabeth McColgin was assigned during the pertinent time to the NYPD's Manhattan Child Abuse Squad. The Detective testified clearly that at no time did respondent mother state that on April 29th Ms. C. told her that T.A. appeared to be in pain that day. This witness averred that the mother reported nothing out of the ordinary regarding T.A. on April 29th or April 30th. According to the detective, the mother never said that T.A. appeared cranky or more distressed on May 1st. The detective testified that when the mother was asked whether she saw anything unusual regarding T.A. on May 1st, the mother responded "no". The detective testified that during the interview on May 3rd, the mother told her that she felt that Ms. C. was "cold" and felt it unusual that Ms. C. would point out to the mother that she would keep one hand on the baby while throwing the diaper in the pail. The court found the detective to be an honest, appropriately neutral witness and credits her testimony in its entirety.
CONCLUSION
This court has discussed at various points in this opinion its perception that the respondent parents have essentially proffered inconsistent and incredible testimony in an attempt to create a scenario in which an adult other than the parents had access to T.A. at the time the injuries occurred. Under all the circumstances, the court finds that it is more probable than not that the fractured humerus did not occur until at least after Ms. C. left work on Saturday, April 30th and that the parents had exclusive access to T.A. thereafter and through the time of injury.
Consistent with this defensive direction, throughout the trial respondent parents sporadically sought to convey doubt as to whether T.A.'s injuries were inflicted by an adult, or rather, resulted from an underlying medical condition of the subject child. The following theories or lines of questioning raised by respondent parents were never developed and lacked any foundation, including: Osteogenesis imperfecta, rickets, renal osteodystrophy, extreme prematurity, hypophophotemia, effects of steroids given to the mother prior to birth. All of the evidence established that there is no question but that T.A.'s bones were developing within normal parameters. The court also finds without merit the apparent effort to imply that because the parents went to great measures to conceive a child, it is unlikely that either parent would abuse the children.
The court finds it highly unlikely that a person other than the individual or individuals who fractured T.A.'s humerus and his 7th rib caused the earlier, healing fractures of the child's 8th, 9th and 10th ribs. As noted, the court found it more probable than not that the parents had exclusive access to T.A. during the time his humerus and 7th rib were fractured. The court also found Ms. C. to be an honest, credible witness. Based upon all of the credible testimony, the court finds Ms. C. did not abuse or neglect either subject child and dismisses the petition as against her.
The Attorney for the Children posited in summation that, as the abuse took place after Ms. C. was hired, it was likely she who caused the injuries. The court has considered this position and declines to follow it for the reasons stated throughout this opinion. The most pertinent change immediately prior to the injuries appears to be the mother's return to work after a long hiatus and then returning home to care for the children. The court declines to speculate as to why the individual or individuals who caused these injuries to T.A. committed the acts in question.
--------
Had the petition not been dismissed as against respondent C., there would be a significant question as to whether the court should apply the 1046(a)(ii) inference against all three respondents. In Matter of Tony B., 41 AD3d 1242, 841 N.Y.S.2d 419 (2d Dept. 2007), the court affirmed the dismissal of a petition where either the respondent parents or other caretakers had access to the child at the time of the injuries in question. The court declined to apply the inference. The same court in Matter of Fantaysia L., 36 AD3d 813, 828 N.Y.S.2d 497 (2d Dept. 2007) upheld a finding of sexual abuse against four individuals in two households who had access to the subject three year-old child who had contracted a sexually transmitted disease, placing the onerous burden upon each individual to present sufficient proof to overcome the presumption. Where, as here, the parents are the only remaining individuals with access to T.A. at the time of injury, it is appropriate to apply the inference permitted by 1046 (a)(ii). See generally, Matter of Ulster Co. Dept. of Soc. Serv., 1995 WL 519189 (Fam. Ct. NY Co. Mar. 24, 1995). Neither parent in the instant case presented expert or lay testimony to demonstrate that the injury occurred at a time when that parent did not have access to T.A. See Matter of Seamus K., 33 AD3d 1030, 1034, 822 N.Y.S.2d 168 (3rd Dept. 2006).
Given the parents' exclusive access to T.A. at the time of his most recent injuries, and in light of all of the testimony discussed above, the court finds that petitioner carried its burden of proving that respondent parents abused T.A. and derivatively abused T.B. As stated, supra, Family Court Act section 1012(e) defines an abused child, in relevant part, as one whose parent,
(i) "inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
(ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of the function
On one hand, Petitioner's own witness, Dr. Radomisli, testified credibly that fractures at this age heal quickly and uneventfully. The expert witness added that even had there been angulation, which was not present here, the body would quickly remodel any deformity. Dr. Radomisli testified that, based upon his experience, the fractures "will have no long term consequence of any kind". Dr. Monti testified that he believed that T.A.'s injuries would heal without complications, but acknowledged that he never saw such injuries before and never treated such injuries.
On the other hand, the very nature of these multiple, severe acts of abuse, and the attendant circumstances lead to a finding of abuse of T.A. In addition to the findings set forth above, the court notes that the father is a trained physician who knew how to determine whether or not his child was injured through a simple test of dangling crinkled paper before the child. The father concluded that the child was in fact injured and suffered from pseudoparalysis from the pain. The next morning the mother told the babysitter that the father considered the child's injury "serious". The court finds it curious that the father, having reached this conclusion, put the baby to bed for the night without seeking any pain relief or emergency medical care to which he presumably would have had access as a physician working for a hospital. Instead, the father went to work the next day, waiting for an appointment with the child's regular pediatrician.
While the actual result of the actions of respondent parents is that the child apparently has suffered no long-term physical injury, that result appears to be fortuitous. The physical acts of abuse over a period of time, breaking three ribs and not affording the child any treatment for these injuries, then fracturing a fourth rib and bending the baby's then-flexible arm to such an extent that it fractured his humerus, an exceedingly rare injury, again not promptly obtaining relief or medical attention for the child, represents both a state of mind and a course of conduct that presented a danger of protracted impairment of the child's physical and emotional health. By not addressing the underlying state of mind that led to the serious physical injury to T.A., and by actively engaging in conduct to hide the source of the injuries, both parents, regardless of the one who committed the actual physical harm to T.A., engaged in "abuse" within the meaning of the FCA.
This course of conduct does not meaningfully differ from a case in which a child is thrown against an object or hit with an object, but the fortuitous result is that there are only several broken bones that will heal fully over time. At the time of the acts in question, applying such pressure that several ribs are snapped or bending an arm with such force that a bone is ultimately broken, carried the attendant risk of even more serious and protracted impairment of the child's physical and emotional health. Under these circumstances, the court finds that petitioner carried its burden of proving "abuse" against respondent parents. Matter of Christopher C., 219 AD2d 519, 631 N.Y.S.2d 666 (1st Dept. 1995). See also Matter of F. Children, 271 AD2d 249, 707 N.Y.S.2d 32 (1st Dept. 2000); Matter of Shaniyah W., 11 Misc 3d 1089(A) (Fam. Ct. Q. Co. 2006)(Richardson-Mendelson, J.).
Petitioner has also established by a preponderance of the credible evidence that respondent parents derivatively abused T.B. Respondent parents' abuse of T.A. is so closely connected with their care of his twin sister as to indicate that T.B. is equally at risk. In Re Marino S., 100 NY2d 361, 374, 795 N.E.2d 21, 763 N.Y.S.2d 796 (2003), cert den., 540 U.S. 1059, 124 S. Ct. 834, 157 L. Ed.2d 714 (2003).
Under all the circumstances, the court dismisses the petitions as against respondent C. and finds abuse against respondent parents. This constitutes the decision and order of the court.
Dated:New York, New York
February 28, 2012
_________________________________
HON. Douglas E. Hoffman, J.F.C.