Opinion
xx/06.
6-2-2009
IN THE MATTER OF G.C. CHILDREN, CHILDREN UNDER THE AGE OF EIGHTEEN ALLEGED TO BE NEGLECTED AND ABUSED AND BY S.G., G.C.
Daniel Fraidstern, Esq., Assistant Corporation Counsel, New York City Children's Services, Brooklyn, New York. Vivian Hewitt, Esq., for Respondent Father, Brooklyn, New York. Erwin Weisberg, Esq., for Respondent Mother, Brooklyn, New York. Jill Wade, Esq., Attorney for the Children, Juvenile Rights Project, Legal Aid Society, Brooklyn, New York.
The issue presented in this child protective proceeding is whether the doctrine of res ipsa loquitur compels a finding of child abuse where petitioner's expert testified that the child's femur fracture "could [have] be[en]" caused by an act of child maltreatment, respondent's expert testified that the child's injury was "more likely than not" caused by accidental means and the child was not in the exclusive care of respondent parents during the relevant period.For the reasons set forth herein, the Court finds thatthe parents rebutted any evidence of parental culpability and the allegations of child abuse are therefore dismissed.
PROCEDURAL HISTORY
Respondent mother (on the neglect and abuse petitions) and respondent father (on the abuse petition) are the parents of four children, L.C., born September 20, 2006, Z.C., born January 21, 2007, R.C., born April 20, 2004 and A.C., born July 31, 2003. Respondent mother is also the mother of L.G., born May 19, 1999, T.G., born February 6, 1996, Jo G., born October 28, 2000, and K.G., born January 21, 1998. Their father is Ian G. New York City Children's Services (hereinafter "NYCCS") alleges, and respondent father does not dispute, that respondent father is a "person legally responsible" for the G. children.
On October 20, 2006, NYCCS filed petitions against the respondent mother alleging that the subject children were neglected children based on educational neglect, inadequate supervision, unsanitary conditions in the home and medical neglect. The petitions alleged that respondent mother failed to attend to the children's medical needs by failing to ensure that K.G., T.G., Jo G. and A.C. received routine medical care and that the last time they were seen by a doctor was in October 2005. The petitions alleged that Z.C. had not had a medical appointment since November 2005 although a follow-up appointment had been scheduled for February 2006. The petitions also alleged that L.C. had not had a medical appointment since March 2006 and that respondent mother failed to bring him for a follow-up appointment scheduled for May 2006. In addition, the petitions alleged that T.G. had missed six days of school and was late six times in 2006-2007 and that she missed 39 days and was late 36 times in 2005-2006; that K.G. had missed six days of school and was late three times in 2006-2007 and that he missed 44 days and was late 31 times in 2005-2006; that T.G. had missed seven days of school in 2006-2007 and that Jo G. was not enrolled in school although she was six years old. Finally, the petitions alleged that the home was dirty, cluttered and lacking a front door lock.
On October 20, 2006, respondent mother appeared in court, counsel was assigned and the children were paroled to her on the condition that she cooperate with the Family Preservation Program (hereinafter, "FPP") and NYCCS, follow-up with all of the children's medical appointments and ensure that the children attend school regularly. On November 16, 2006, George C., who was then a non-respondent father, appeared in court for the first time.
On December 16, 2006, at approximately 10:30 AM, respondent mother brought Jo G. to Brookdale Hospital. X-rays were taken and Jo G. was diagnosed with a displaced fracture to her right femur. On February 6, 2007, more than seven weeks later, NYCCS filed petitions alleging that Jo G. was an abused child as a result of sustaining an injury either by falling from a high altitude or by sustaining the injury by force. The petitions charged that respondent mother and respondent father violated FCA § 1012 (e) (i) or (e) (ii), in that they inflicted or allowed to be inflicted upon such child, physical injury by other than accidental means which caused or created 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 created or allowed to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ. The petitions alleged that respondent father could not provide an explanation for the injury and respondent mother's explanation was not consistent with the nature and extent of the injury. The petitions further alleged that respondents failed to seek prompt medical attention in that "the subject child, who has cerebral palsy and is non-verbal, was exhibiting signs of discomfort on or about December 15, 2006, and they failed to take the child to the emergency room" until December 16, 2006.
On February 8, 2007, respondent father appeared and counsel was assigned. Despite the abuse allegations, NYCCS never sought to remove any of the children from respondent mother's home. Instead, they requested a continued parole to respondent mother on the condition that she continue to cooperate with FPP, homemaking services, home attendant services and that she ensure that the children attend all of their medical appointments. In addition, NYCCS requested, and the Court granted, a temporary order of protection directing that respondent father not be left alone with the children. Thereafter, a Medicaid Service Coordinator was assigned to the family to assist respondent mother in dealing with Jo G.'s special needs.
FACT-FINDING HEARING
A fact-finding hearing was conducted over the course of numerous court dates beginning on June 14, 2007 and concluding on January 30, 2009. NYCCS called three witnesses to testify: the caseworker who conducted the initial investigation into the allegations of neglect; Helena H., the homemaker who was present in the home on December 15, 2006, the day that Jo G. allegedly sustained the fractured femur and Dr. Samuel Bekar, M.D., the doctor who examined Jo G. on December 16, 2006, the day after she was admitted to Brookdale Hospital.
In addition, NYCCS introduced agency case records, Brookdale Hospital records and certified copies of the children's school records into evidence. The school records established that the child Tatyana had missed eight days of school and was late 11 times in 2006-2007 (out of a total of then — 47 days) and that she missed 39 days and was late 36 times in 2005-2006 (out of 176 days); that the child K.G. had missed seven days of school and was late six times in 2006-2007 (out of a total of then — 47 days) and that he missed 44 days and was late 31 times in 2005-2006 (out of 176 days); and that the child T.C. had missed 16 days of school and was late once (out of 125 days) in 2006-2007 and that he missed 54 days and was late seven times in 2005-2006 (out of 176 days).
The exhibits introduced by NYCCS consisted of the following: Petitioner's Exhibit # 1 in evidence — Dr. Samuel Bekar, M.D.'s Curriculum Vitae; Petitioner's Exhibit # 2 in evidence — Brookdale Medical Center's medical records; Petitioner's Exhibit # 3 for identification — an ORT dated Sept. 22, 2006; Petitioner's Exhibit # 4 in evidence — school records for L.G. and K.G.; Petitioner's Exhibit # 5 in evidence — school records for T.C.; and Petitioner's Exhibit # 6 in evidence — NYCCS case records.
Respondent mother testified on her own behalf and respondent father called Elliot M. Gross, M.D., to testify. Dr. Gross's Curriculum Vitae was introduced as respondent father's Exhibit No.1 in evidence. The articles reviewed by Dr. Gross in reaching his conclusions were marked as respondent father's Exhibit # 2 for identification.
Petitioner's Case
The Caseworker
The caseworker testified as to his observations of the conditions in the home when he visited it on September 22, 2006, October 13, 2006 and October 19, 2006. He testified that the home "was messy. There were ... shoes all over the floor. There were little, uh, dirty looking puppies running around the home dirty dishes in the sink, on the tables, um, in the kitchen and on the floor dirty clothes all around — all over the home-including the sitting room." In addition, the caseworker testified that there was dog food on the floor and that there was mold "all over."
The caseworker testified that he observed similar conditions in the home during the second visit. On the second visit the caseworker also noticed that that there was no lock on the front door to the apartment. Some improvement was observed during the third visit. Although it remained "dirty [with] dirty papers and dirty dishes all over the kitchen," the puppies were gone and the clothing had been moved.
With respect to the allegations of educational neglect, the caseworker testified that the school-aged children were all at home during at least one of his visit, although the visits took place in the middle of school days. He testified that respondent mother said that she could not take the children to school because she had other young children in the home and could not leave them alone to take the older children to school on a daily basis. She said that often a neighbor or respondent father did so. With respect to the child Jo G., she said that she was not attending school because she did not have a wheelchair for her.
The Homemaker
Helena H., the homemaker, testified that she was present in the home on December 15, 2006 between approximately 7:00 AM and 2:00 PM. Ms. H. testified that she had been working with the family since November 21, 2006, Monday through Friday, from 7:00 AM to 1:00 PM.
Ms. H. testified that when she arrived, respondent mother, respondent father and the subject children were all present. She testified that shortly after she arrived the two younger children were brought to her in the living room and that Jo G. was placed in her stroller by her older brother. She said that the stroller was already in the living room when she arrived. She said that Jo G. had been brought in from her mother's room. She said that the cross-bar had already been removed and that after Jo G. was placed in the stroller, her brother refastened it. She testified that at approximately 8:00 AM she took the two older children to school and returned to the case address by about 9:00 AM.
Jo G. has been diagnosed with cerebral palsy, a seizure disorder and mild mental retardation. She is confined to a stroller or a wheelchair. As a result, she has taken anti-seizure medication and her legs have also been immobilized from time-to-time.
Shortly thereafter, respondent mother and respondent father left the home with T.C. Ms. H. testified that she was not generally left alone with the children and that it had only happened on two prior occasions. Later that morning, a mentor for the children arrived and spoke with the children for 10 to 15 minutes. After that, Ms. H. and the children watched television.
Ms. H. testified that she changed Jo G.'s diaper at approximately 12:00 PM. In order to do so, she removed the cross-bar, lifted Jo G. out of her stroller and placed her on her back on the sofa. Afterwards, she placed the child back in her stroller and refastened the cross-bar. She said that the child appeared fine to her. She did not observe anything unusual about Jo G.'s legs and she saw no signs of swelling, redness or discomfort. She testified that she left the home when respondent father returned at approximately 1:45 PM.
Ms. H. had some difficulty remembering the details of what happened that morning. She initially could not recall how many children were in the home or the name or the age of the older child who she said placed Jo G. in her stroller (she later said it was T.C.). She also did not know why T.C., who was school aged, did not go to school that day. On direct examination when she was asked what she had done with the children that day, she failed to mention that she had fed them. When she was informed that T.C. said that she did not feed them, she insisted that she had fed Jo G. while T.C. had fed his brother. Later, she said that she hadn't actually fed them but that she had been preparing to do so, "by heating up some ravioli, or something or other," when respondent father returned to the home. When Ms. H. was told that A.C. said that she had hit Jo G., she denied it. When she was informed that T.C. said that she didn't change any diapers and that she was "very mean" to him, she denied that as well.
Ms. H. testified that she learned of Jo G.'s injury two days later. She said that the agency told her "not to report back to the G. home." She was then informed by the agency, "there was an allegation that I was supposed to have broken [Jo G.'s] leg."
NYCCS's Expert
NYCCS also called Samuel Bekar, M.D., to testify. Dr. Bekar graduated from the University of Aleppo in 1986 and completed his residency at Brookdale in 1995. He published one paper entitled "Hyper Para Thyroidism." That paper was his thesis to obtain his diploma in 1985. In addition, in 1995, he completed a one-day course in child abuse. He testified that he was an associate attending at Brookdale Hospital where he had worked since 1995. He taught at SUNY's Health Science Center and was an Adjunct Clinical Assistant Professor of Pediatrics at NYCOM and an Associate Clinical Professor at Ross University. He testified that he was a fellow of the American Academy of Pediatrics and had been board certified in pediatrics since 1996. He had been licensed to practice medicine since 2000, although he testified that, prior to that time, he had a limited license because he did not have "a green card." He stated that he had testified once before in a proceeding conducted in Queens County, Family Court. Dr. Bekar was qualified as an expert in pediatrics.
Dr Bekar testified that he saw Jo G. on December 17, 2006, the day after she was admitted to the hospital. He testified that the femur is the strongest bone in the body and would have required excessive force to cause a fracture. He testified that the fracture Jo G. sustained would have immediately caused irritability and pain.
When asked whether he had an opinion within a reasonable degree of medical certainty about whether the injury was the result of a deliberate act or the result of inflicted trauma, he testified "could be." He acknowledged, however, that it also could have happened by accident, for example, if the child's foot was strapped in a stroller and she fell or someone pulled her or if she fell from her stroller onto the floor. He stated that the injury was "definitely not" caused by the child being repeatedly hit with an open hand or a closed fist or by falling on the floor.
The Brookdale Hospital records indicate that Jo G. did not "have bruising or other signs of abuse." The records do not describe the injury as the result of an intentional act. The records state, however, "Fracture cause NOS Accident in place NOS." Subsequently, the records state "possible non-accidental injury" and "rule out suspected child abuse."
Dr. Bekar also testified that he did not believe that cerebral palsy would make the child more vulnerable to fractures. He testified that the injury could not have happened as the result of a seizure and that he found no evidence of osteogenesis imperfecta. The doctor testified that "clinically [the child] does not have osteogenesis imperfecta," although he acknowledged that no test had been done to determine whether she had that condition. In Dr. Bekar's opinion it was unlikely that Jo G. suffered from osteogenesis imperfecta since this was her only fracture and her calcium levels were not grossly abnormal.
Dr. Bekar testified that he observed no obvious sign of trauma or ecomosis, that the child had been diagnosed with cerebral palsy and mental retardation, and that her phenobarbitol levels were low when she was hospitalized. He testified that such levels might have increased the likelihood that Jo G. would have had a seizure since the therapeutic level is "15 35" but Jo G.'s levels were "three." He also testified that the fracture could originally have been non-displaced and that it could have later become displaced. He said if that were the case, it could explain why there was no swelling or ecomosis. In his opinion, however, a seizure could not have caused a non-displaced fracture to become a displaced one.
Jo G. apparently had a seizure on December 4, 2006 (see Petitioner's Exhibit # 6 in evidence NYCCS's case records entry dated December 13, 2006).
Respondents' Case
Respondent Mother
Respondent mother testified on her own behalf. She testified that on December 15, 2006, she woke up and made breakfast for the children. She testified that the homemaker arrived at the case address at approximately 7:00 AM. When the homemaker arrived, all of the children, she and respondent father were present. Respondent mother testified that she brought Jo G. into the living room from her bedroom and placed her in her stroller. She said that T.C. placed the baby into his highchair. She said that the homemaker then took the school-aged children to school. After she returned, at approximately 9:00 AM, both parents left the case address and went to Brookdale Hospital to attend a prenatal appointment and visit the maternal great-grandmother. Respondent mother said that she left Pampers and plates of food for the children.
Respondent mother testified that respondent father left the hospital at approximately 1:00 PM to return to the case address. She called the home later that afternoon to speak with him and check on the children.
She returned to the home at approximately 10:00 PM. By then, all of the children were asleep. Respondent father told her that Jo G. had cried during the day. He told her that, during the afternoon, he fed and bathed Jo G.. Later in the evening, he put her to sleep. Respondent mother checked on the children, saw Jo G. sleeping and observed no problems. Respondent mother testified that Jo G. slept through the night.
Respondent mother testified that respondent father left the home the following morning at approximately 7:30 AM. After that, a different homemaker arrived. Respondent mother testified that there was a different homemaker on the weekends and that December 16, 2006 was a Saturday.
Later that morning, at approximately 8:30-9:00 AM, Jo G. woke up. Respondent mother testified that she realized that she was awake because she heard her make sounds from the room she shared with her sister, T.G. Respondent mother went into the bedroom and started to change Jo G.'s diaper. Jo G. cried. She examined her in an effort to find out what was wrong. In the process, she noticed that her thigh seemed swollen and painful when touched.
She asked the other children if they knew what had happened to Jo G.. A.C. said that the homemaker had hit Jo G. and that she was "mean." T.C. said that he did not like the way that the homemaker acted.
Respondent mother then tried to contact respondent father by phone. She then tried to contact VIP, the agency that employed the home attendant. She then contacted the FPP caseworker and her uncle to ask him to come over to watch the other children while she went to the hospital. After that, at approximately 10:30 AM, she brought Jo G. to Brookdale Hospital. The FPP worker arrived shortly thereafter.
According to the medical records, X-rays were taken and Jo G. was diagnosed with a displaced oblique fracture to her right femur. Upon her admission, she was described as alert and playful. Her leg was described as swollen and painful to touch. Thereafter, on December 17, 2006, Jo G. underwent surgery to set her leg. She was discharged on December 20, 2006 and returned to her mother's care.
On cross-examination, respondent mother acknowledged that she had not consistently given Jo G. her anti-seizure medication on a daily basis as prescribed because "she didn't seem to need it" and because of the medication's side effects. Specifically, she said that it made Jo G. choke. In addition, she acknowledged that she had used corporal punishment, including a belt, with the older children in the past.
Respondent Father
According to the information provided by respondent father and contained in the hospital and case records, he arrived at the case address on December 15, 2006, at approximately 7:00 AM, to accompany respondent mother to a prenatal appointment at Brookdale Hospital. He stated that he and respondent mother had planned to visit the maternal great-grandmother at the same hospital after the prenatal appointment and then go to T.C.'s school to discuss his behavioral problems.
Respondent father later reported that he left the case address with respondent mother and T.C. at about 9:00 AM and that he returned at approximately 2:00 PM. Shortly thereafter, the homemaker left. The children had not been fed or changed. He later reported that when he changed Jo G.'s diaper, he noticed that she cried out when he moved her. He said that he did not know what was wrong. He said that when he examined her, he did not find anything wrong, although she again cried out when he re-dressed her. He said that after he changed Jo G. and returned her to her stroller, she moved her legs and seemed okay.
Respondent father spent the remainder of the afternoon with the children. The NYCCS caseworker visited the home between 3:30 and 4:05 PM. According to the caseworker, respondent father was at home with Jo G., T.G., K.G., L.C., Z.C. and A.C. and "Jo G. appeared to be happy as she was laughing, smiling and moving her legs."
Respondent father said that respondent mother's brother arrived for a visit at about 3:00 PM and that a 14 or 15-year-old cousin arrived at approximately 6:00 PM. He said that he fed the children at approximately the same time. He said that the guests left at approximately 9:00 PM and that he then put the children to bed. He later reported that Jo G. whined when he put on her pajamas.
Respondent mother returned to the home at approximately 10:00 PM. By then, all of the children were asleep. Respondent father checked on them at approximately 2:00 AM and observed no problems. Respondent father said he left the home early the following morning.
Respondent's Expert
Respondent father called Elliot M. Gross, M.D., to testify. Dr. Gross graduated from Columbia University and received his M.D. from New York University. He completed his residency at Bellevue Hospital, where he had also been Chief Resident and Assistant Attending Pathologist. He had also worked as Chief Medical Examiner for the City of New York, Chief Medical Examiner for the State of Connecticut, the Chief Deputy Coroner for Hamilton County, Ohio and Inter-County Medical Examiner for the Counties of Cape May and Cumberland, New Jersey.
Dr. Gross was licensed to practice medicine in New York and New Jersey and had been previously licensed to practice in California, Connecticut, Indiana, Ohio and Massachusetts. He had previously served as an Associate Professor of Forensic Medicine at New York University, an Assistant Clinical Professor of Pathology at Columbia University, an Associate Professor of Pathology at the University of Connecticut, an Assistant Clinical Professor of Pathology at Yale University School of Medicine, an Adjunct Professor of Pathology at Cornell University Medical College, a Clinical Professor of Pathology at the Indiana University School of Medicine and a Clinical Professor of Pathology and Laboratory Medicine at the University of Medicine and Dentistry at New Jersey Medical School, among other teaching positions.
Dr. Gross was a member of the New York Academy of Medicine and had previously been a member of the American Medical Association, the American Academy of Forensic Sciences, the American Society of Clinical Pathologists, the College of American Pathologists, the National Association of Medical Examiners, the United States and Canadian Academy of Pathology and the New York Pathological Society. He had previously been certified by the National Board of Medical Examiners and the American Board of Pathology in Anatomic Pathology and Forensic Pathology. He had also previously served as the Chairman of the Board of Directors of the National Association of Medical Examiners, a member of the Board of Governors of the American Academy of Legal and Industrial Medicine and of the Board of Governors of Daytop Village, Inc., the President of the National Association of Medical Examiners and the Chairman of the Committee on Forensic Medicine for the New York State Medical Society. He had previously served on the Mayor's Task Force on Child Abuse and Neglect, the Committee on Public Health of the New York County Medical Society, the Committee on Forensic Medicine of the New York State Medical Society, the Subcommittee on Alcoholism and Drug Abuse for the New York Academy of Medicine, and the Advisory Council to New York City on Sudden Infant Death Syndrome, the Committee to Revise the Autopsy Manual for the New York Academy of Medicine.
His publications include the following: "Death Under Suspicious Circumstances," 6 Medical Opinion and Review, pp. 20-27 (1970); "The Medico — legal Autopsy," 36 Connecticut Medicine, pp. 88-89 (1971); "Preparation for Court," 3 Human Pathology, pp. 98-105 (1972); "Talc Embolism: Sudden Death Following Intravenous Injection of Phenyltoloxamine," 2 Forensic Science, pp. 457-480 (1973); "The Medical Examiner and Aircraft Accident Investigation — The June 1971 Crash at East Haven," 39 Connecticut Medicine, pp. 653-655 (1975); "Sudden and Suspicious Deaths: Changes in Connecticut, 1969-1979, 43 Connecticut Medicine, pp. 301-305 (1979).
He co-authored "Identification and Injuries of Aircraft Victims," 13 Archives of Environmental Health, pp. 289-291 (1966); "Tranylcypromine Concentrations and Monoamine Oxidase Activity in Tissues from a Fatal Poisoning," 1 Journal of Analytic Toxicology, pp. 168-170 (1977); "Ultrastructural Abnormalities of the Carotid Body in Sudden Infant Death Syndrome," 63 Pediatrics, pp. 13-17 (1978); "Human Tissue Distribution of Thioridazine During Therapy and After Poisoning," 2 Journal of Analytic Toxicology, pp. 41-43 (1978); "AA Protein Related Renal Amyloidosis in Drug Addicts," 112 American Journal of Pathology, pp. 195-199 (1983); "A Study of Homicides in Manhattan (1981)," 76 American Journal of Public Health, pp. 139-143 (1986); "Homicide in New York City," 62 Bulletin of the New York Academy of Medicine, pp. 412-426 (1986); "Increased Risk of Suicide in Persons with Acquired Immune Deficiency Syndrome (AIDS)," 259 Journal of the American Medical Association, pp. 1333-1337 (1988); "Analysis of Cocaine-Positive Fatalities," 34 Journal of Forensic Sciences, pp. 53-63 (1989); "The AIDS Autopsy: Comparison of Intravenous Drug Abusers with Non-intravenous Drug Abusers," 1 Progress in AIDS Pathology, pp. 219-29 (1989).
He authored several chapters including "In Their Own Words," in "Police Functions: Criminal Justice: An Introduction, 2d Edition," F. Adler, G.O.W., Mueller, W. S., Lauter, co-authors, McGraw Hill, pp. 154-155 (2000); "The Model Postmortem Examinations Act in the State of Connecticut 1969-74," 1975 Legal Medicine Annual, pp. 49-66, Appleton-Century-Crofts (1976); "Autopsy Findings in Drug Addicts," with Schinella, R., Chaitin, B., 2 Pathology Annual, pp. 35-67, Appleton-Century-Crofts (1978); "The AIDS Autopsy: Comparison of Intravenous Drug Abusers with Non-Intravenous Drug Abusers," with Rotterdam, H., Somers, S.C., Racz, P. and Paul, R. Eds., "Progress in AIDS Pathology," Vol. I, pp. 221-229, New York: Field & Wood Medical Publishers, Inc. (1989). In addition, he has served as guest editor for Human Pathology, as a member of the Editorial Advisory Board for the Journal of Analytic Toxicology, a member of the Board of Editors of the American Journal of Forensic Medicine and Pathology, and of the American Journal of Forensic Sciences. Dr. Gross's Curriculum Vitae was introduced into evidence as Exhibit #1.
Dr. Gross was qualified as an expert in forensic pathology and medicine. Dr. Gross testified that in his opinion it is more likely than not that Jo G.'s injury was caused by accidental means. Dr. Gross testified that the injury could have been caused by a seizure. Dr. Gross testified that both her cerebral palsy and seizure disorder increased the likelihood that Jo G. would suffer a bone fracture. Dr. Gross explained that children with cerebral palsy frequently suffer from low bone density and consequently are more likely to sustain fractures. Dr. Gross also testified that the use of anticonvulsant medication, immobilization and nutritional factors, all decrease bone density and, therefore, increase the risk of fractures. Dr. Gross noted that no bone density test was performed on Jo G..
Dr. Gross testified that a number of factors supported his conclusion that this was more likely than not an accidental injury, including the lack of any other fractures, the lack of any bone fragmentation, the lack of any bruising, the absence of any pattern to the injury and the fact that there was no bleeding. In Dr. Gross's view the child's injury could have gone unnoticed for a period of time, perhaps up to 24 hours. He also said that it was possible that the fracture could have originally been a non-displaced fracture, that later became displaced. He said that, in that case, the injury could have gone unnoticed for a longer period of time.
Dr. Gross referred to an article entitled Fractures in Cases with Cerebral Palsy, by Ana Presedo, M.D. and Kirk W. Dabney, M.D., published in 27 Journal of Pediatric Orthopedics, No. 2 (March 2007). The article described a study of children with cerebral palsy and concluded that such children are at a greater risk for fractures, with the most frequent fractures to occur being fractures of the femur (48%). The article indicated that low bone density is the main reason that such children are more prone to fractures and lists several factors as contributing to low bone density, including limited ambulation and weight bearing during skeletal growth, periods of immobilization and the use of anticonvulsant medications. In addition, the article described how such injuries are often diagnosed significantly later in children with cerebral palsy.
According to the article, "In 46% of the fractures, the diagnosis was delayed; these patients typically presented with complaint of pain, usually indicated by the caregivers, evolving for several days (average, 10 days)."
In response to questioning on cross-examination, Dr. Gross also submitted an article entitled Fracture Risk Increase in Epilepsy, by P. Vestergaard, S. Tigaran, L. Rejnmark, C. Tigaran, M. Dam, and L. Mosekilde, 99 Acta Neurol. Scand 5, pp. 269-75 (May 1999). The article described a study of children with epilepsy and concluded that such children are more likely to suffer fractures with almost 44% of all such fractures directly related to seizures. Dr. Gross submitted a list of other articles he had reviewed in forming his opinion including Risk Factors of Long Bone Fracture in Non-Ambulatory Cerebral Palsy Children, by Ch Ko, Pwt tse, and Akh Chan, 12 Hong Kong Med J., No. 6 (Dec. 2006) and Spontaneous Fractures in Children and Adolescents with Cerebral Palsy, 309 BMJ 265 (July 23, 1994). All of the articles concluded that both cerebral palsy and seizure disorders significantly increase the risk of fractures in children.
LEGAL ANALYSIS
A parent is liable for abuse of their child pursuant to Family Court Act § 1012(e)(i) or (e)(ii), respectively, when either they inflict or allow 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 create or allow to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ.
Family Court Act § 1046 (a) (ii) permits an inference to be drawn so as to establish a prima facie case of abuse or neglect against the parents or other caretakers of a child when the child suffers an injury which would not ordinarily occur in the absence of an act or omission of the caretakers ( Matter of Philip M., 82 NY2d 238 [1993]; In re Ashley RR., 30 AD3d 699 [3d Dept 2006]). Thus, a prima facie case of abuse may be established by evidence of an injury to a child which would ordinarily not occur absent an act or omission of respondents, and that the respondents were the caretakers of the child at the time the injury occurred (In re Kayla C., 19 AD3d 692 [2d Dept 2005]; In re Infinite G., 11 AD3d 688 [2d Dept 2004]).
In order to establish that the injury would ordinarily not occur absent an act or omission of respondents, NYCCS may rely on expert testimony "to supplant a [court's] understanding of whether an injury would normally occur in the absence of negligence" (States v Lourdes Hospital, 100 NY2d 208, 213 [2003] rearg denied 100 NY2d 577 [2003] citing Restatement 2d of Torts §328D, Comment d). In other words, the fact that a particular injury does not ordinarily occur in the absence of neglect or abuse must be supported by expert testimony unless that conclusion is within the common understanding of the finder-of-fact.
Where NYCCS is relying on the doctrine of res ipsa loquitur, the expert's testimony must represent a reasonable degree of certainty. It may not be based on supposition or speculation. The doctrine of res ipsa loquitur is not applicable where it is merely possible that negligence or abuse was the cause of the injury (Richardson, Evidence § 367, pp. 151-152 [Prince 10th ed.] [1972-1985 Cum Supp]; People v Donohue, 123 AD2d 77, 79 [3d Dept 1987] appeal denied 69 NY2d 879 [1987]). Similarly, "where the probabilities are at best evenly divided between negligence [or abuse] and its absence, it becomes the duty of the court to [find] that there is no[t] sufficient proof" (Restatement 2d of Torts, § 328 D, Comment d, p. 159; Spica v Connor, 56 Misc 2d 364, 365-366 [Dist Ct, Suffolk County 1968]; People v Miller, 116 AD2d 595 [2d Dept 1986]).
Although NYCCS is not required to conclusively exclude all other possible explanations, the evidence must reasonably permit the conclusion that neglect or abuse is the more probable explanation. Stated differently, NYCCS's burden of proof requires the production of evidence which will permit the conclusion that it is more likely than not that the injuries were caused by respondent's actions or omissions (Spica v Connor, 56 Misc 2d 364, 365-366 [Dist Ct, Suffolk County 1968]; Dermatossian v New York City Transit Authority, 67 NY2d 219 [1986] [evidence that the incident was probably the result of defendant's negligence is sufficient; while the possibility of other causes need not be altogether eliminated, the likelihood must be so reduced that the greater probability lies with defendant]; Stone v Courtyard Management Corp., 353 F3d 155, 158 [2d Cir 2003] [it was not necessary for plaintiff to altogether eliminate the possibility of other causes of the injury only that their likelihood must be so reduced that the greater probability lies at defendant's door];Nesbit v New York City Transit Authority, 170 AD2d 92, 98 [1st Dept 1991] [evidence that it was probably defendant's negligence that caused the injury is sufficient]; Pavon v Rudin, 254 AD2d 143 [1st Dept 1998] [plaintiff need not conclusively eliminate all other possible explanations; it is enough to present evidence from which a fact-finder could conclude that it is more likely than not that defendant's negligence caused the injury]).
Once a prima facie case is established, the burden of going forward shifts to the respondent to rebut the evidence of parental culpability ( Matter of Philip M., 82 NY2d 238 [1993]). The burden of going forward does not shift the burden of proof, which always rests with the petitioning agency to prove abuse and neglect by a preponderance of the evidence (see Id.; In re Seamus K., 33 AD3d 1030 [3d Dept 2006]; see also Family Ct Act § 1046 [b][i]).
As the Court of Appeals has explained, just "[a]s in negligence cases tried on the theory of res ipsa loquitur," once the petitioner has established a prima facie case under the statute, the "burden of explanation" shifts to the respondents, who may attempt to rebut the evidence of culpability for the child's injuries ( Matter of Philip M., 82 NY2d at 244). On that note, although the statute is often described as providing for a "presumption" of culpability, it does not create a true presumption, but rather, creates a permissible inference of culpability that the finder-of-fact may choose to draw upon all the evidence in the record, however, it does not compel a finding in accordance with that inference (see In re Ashley RR., 30 AD3d 699 citing Kambat v St. Francis Hosp., 89 NY2d 489, 495 [1997]; Morejon v Rais Const. County, 7 NY3d 203 [2003]).
After a prima facie case has been established, respondents may simply rest without attempting to rebut the inference and permit the court to decide the case on the strength of petitioner's evidence. "While the fact finder may find respondents accountable for abuse after a prima facie case is established, it is never required to do so" (Matter of Philip M., supra at 244). Instead, the Family Court is required to weigh all the evidence in the record before making a determination regarding abuse or neglect (Id. at 244, 246; In re Ashley RR., 30 AD3d at 700-701).
In order to rebut a prima facie case, respondents may seek to establish that the injury could reasonably have occurred accidentally, that is, without the acts or omissions of any person ( Matter of Philip M., 82 NY2d 238; Matter of Eric G., 99 AD2d 835 [2d Dept 1984] [evidence was insufficient to establish that infant's fractured femur was the result of abuse where the child had no other injuries or bruises, the parents had no prior history of child abuse and petitioner's expert conceded that the injury could have occurred when one of the parents removed the baby from the crib while his leg was caught between the crib's railings]; In re Brandyn P., 278 AD2d 533 [3d Dept 2000] [abuse petition dismissed where a spiral fracture of a one-year-old's leg was not accompanied by other physical manifestations of abuse such as marks, bruises or other fractures]; Matter of Smith, 128 AD2d 784 [2d Dept 1987] appeal denied 69 NY2d 613 [1987] [expert testified that reddening around the child's anus could have been caused by a foreign object but could also have been caused by chronic bedwetting, or diarrhea or constipation]; In re Myriam L., 17 Misc 3d 1125 [A] [Fam Ct, Kings County 2007] [abuse petition dismissed based on mother's submission of affidavits of medical experts which all corroborated her explanation that the child's depressed skull fracture was caused by an accident]; In re Christopher Anthony M., 46 AD3d 896 [2d Dept 2007] [father established that his conduct was neither negligent nor abusive where his testimony rebutted the statutory inference and established that the child's injury could reasonably have occurred accidentally]; Matter of A.G. and K.G., NYLJ, Jan. 13, 1992, p. 25, col. 4 [Fam Ct, Kings County] [allegations of sexual abuse dismissed where expert testimony established that the child's chlamydia infection could have been acquired through perinatal transmission]; compare New York City Dept. of Social Services on Behalf of H. and J. Children, 209 AD2d 525 [2d Dept 1994] [rejecting parent's claim that the child's spiral fracture was the result of an accidental fall out of a bathtub; while a spiral fracture, by itself, does not necessarily lead to a diagnosis of abuse, abuse may be confirmed where the child displays other marks or injuries, including bruises to the rib cage, the bottom of the left foot, the left temple, the mid-portion of the back and a burn mark under the chin]).
Respondents may also rebut a prima facie case by establishing that during the time that the child was injured, the child was not in respondents' care (see e.g., Matter of Vincent M., 193 AD2d 398 [1st Dept 1993] [abuse petition dismissed where the mother was not caring for the child when the injuries occurred]; In re Christopher Anthony M., 46 AD3d 896 [neglect and abuse allegations dismissed where respondent father was not present when the child was injured in another room by someone else]; Matter of Philip M., 82 NY2d 238; In re Tony B., 41 AD3d 1242 [4th Dept 2007] [petition alleging that respondents abused their three-month-old child dismissed where respondents, among others, acted as caretakers of the child within the 48 hours preceding the child's diagnosis of a fractured skull, therefore, the evidence did not establish a prima facie case of abuse against any particular person or persons]; In re Ashley RR., 30 AD3d 699 [3d Dept 2006] [abuse and neglect petitions against parents dismissed where the evidence suggested that the injury took place while the grandmother was responsible for the children, not when they were in the parents' care]; Matter of Israel S., 308 AD2d 356 [1st Dept 2003] [neglect petition against the father dismissed where the mother's use of excessive corporal punishment occurred when he was not living with the children]; In re Zachary MM., 276 AD2d 876 [3d Dept 2000] [abuse petitions against the child's parents dismissed where the evidence established that the child-care provider abused the child]; In re Kristen B., 283 AD2d 195 [1st Dept 2001] [abuse petition against respondent dismissed since a neighbor, who babysat for the child on the day the injury occurred, failed to testify, thus, supporting respondent's contention that she was not with the child when the injury was sustained]; Matter of P. Children, 272 AD2d 211 [1st Dept 2000], lv denied 95 NY2d 770 [2000] [abuse and neglect allegations against the father dismissed where the mother hit her nine-year-old son and caused bruising around his eye and multiple lacerations since he was not present and had no reason to know that the child was in danger]; Matter of Robert YY., 199 AD2d 690 [3d Dept 1993] [abuse and neglect petitions against the mother dismissed since the evidence established that she was napping when the father broke the child's arm]; Albany County Dept for Children, Youth & Families v Ana P., 13 Misc 3d 855 [Fam Ct, Albany County 2006] [allegations of child abuse against the child's mother dismissed where petitioner's own witness testified that the child's sexually transmitted disease was probably not caused by her]).
In the instant case, respondent parents assert that the allegations of abuse should be dismissed for two reasons. First they assert that that NYCCS has failed to establish that the injury would not have happened accidentally, that is, absent an act or omission on someone's part. Second, they assert that NYCCS has failed to establish that the child was in their exclusive care and control during the time that the injury most likely occurred.
Based upon a careful consideration of counsels' written summations, current case law, and all the evidence introduced and papers submitted, including the expert testimony, the Court agrees, finding that the injury was most likely the result of an accident and that numerous other adults could have been present when the accident occurred. In the Court's view, neither prong of the res ipsa loquitur statutory inference has been met, therefore, the inference cannot apply under the particular facts of this case. Moreover, even assuming that the inference indeed applies here, the Court concludes that the inference was successfully rebutted and, further, that the record as a whole simply does not support a finding that respondents abused their child.
1. The Child's Injury Most Likely Occurred by Accidental Means
In the instant case, Jo G., one of eight children, ranging in age from three to 10, suffered a single isolated bone fracture. She had no other injuries or bruises. None of the seven other children had any injuries or bruises. None of the children described any acts of abuse inflicted by respondent mother or respondent father. Respondent parents had no prior history of child abuse. Accordingly, NYCCS's assertion that this particular injury would not ordinarily occur in the absence of child abuse must be supported by expert testimony, since that conclusion is not within the common understanding of this trier of fact. Toward that end, NYCCS sought, through the testimony of Dr. Bekar, to establish that the child's fracture would not have occurred absent an act or omission by respondent parents. Dr. Bekar's testimony failed to establish that abuse is the more probable explanation and it is therefore insufficient to satisfy NYCCS's burden of proof. Indeed, Dr. Bekar acknowledged that he could not state within a reasonable degree of medical certainty, that the injury was the result of a deliberate act or inflicted trauma, saying only that it"could be." In addition, Dr. Bekar acknowledged that the injury could have occurred accidentally, for example, if the child's foot was strapped into a stroller and she fell or someone pulled her, or if she fell from her stroller onto the floor. This is precisely the type of testimony deemed insufficient to establish abuse by the Appellate Division, Second Department in Matter of Eric G. (99 AD2d 835 [evidence was insufficient to establish that infant's fractured femur was the result of abuse where petitioner's expert conceded that the injury could have occurred when one of the parents removed the baby from the crib while his leg was caught between the crib's railings, the child had no other injuries or bruises and the parents had no prior history of child abuse];see also Matter of Smith, 128 AD2d 784; In re Myriam L., 17 Misc 3d 1125 [A]; In re Christopher Anthony M., 46 AD3d 896; Matter of A.G. and K.G., NYLJ, Jan. 13, 1992, p. 25, col. 4).
Since NYCCS is relying on the doctrine of res ipsa loquitur, Dr. Bekar's testimony must represent a reasonable degree of certainty. It may not be based on supposition or speculation. The doctrine is not applicable where, as here, the injury "could [have] be[en]" caused by abuse. The mere possibility that abuse was the cause is insufficient to justify the application of res ipsa loquitur (Richardson, Evidence § 367, pp. 151-152; People v Donohue, 123 AD2d at 79; Restatement of Torts 2d § 328 D, Comment d, p. 159; Spica v Connor, 56 Misc 2d at 365-366; People v Miller, 116 AD2d 595). Here, Dr. Bekar's testimony was uncertain and speculative. It does not represent a reasonable degree of medical certainty and is clearly insufficient to establish that the child's fracture was caused by non-accidental means. Accordingly, the allegations of abuse must be dismissed since one of the requisite elements of res ipsa has not been established.
This result is consistent with the comprehensive testimony of Dr. Gross, which is fully credited by the Court. He is a highly qualified medical expert with many years of relevant experience and his opinion is consistent with the medical literature and relevant case law. To the extent that Dr. Bekar's testimony differed, it is rejected. Dr. Bekar lacks the extensive professional experience, training and recognition enjoyed by Dr. Gross. In addition, Dr. Bekar seemed unaware of the research establishing that fractures are more likely in children with cerebral palsy and seizure disorders.
To the extent that two expert witnesses present different conclusions, the trial court is required to make a credibility assessment (People v Jackson, 65 NY2d 265 [1985] [the resolution of conflict between opposing experts is generally a matter for the finder of fact]; Velonis v Vitale, 57 AD3d 657 [2d Dept 2008] [where both the plaintiff and the defendant presented expert testimony in support of their respective positions, it was the province of the fact finder to determine the experts' credibility]; Manuka v Crenshaw, 43 AD3d 886 [3d Dept 2007]; Gray v McParland, 255 AD2d 359 [2d Dept 1998] [where there is conflicting testimony from medical experts, the credibility of the witnesses, and the weight to be accorded to each, are issues to be resolved by the finder of fact]).
Dr. Gross testified that in his expert opinion the fracture was more likely than not caused accidentally. Dr. Gross testified that Jo G. could have sustained a fracture more easily and with less force than other children without her medical condition. Dr. Gross explained that children with cerebral palsy frequently suffer from low bone density and consequently are more likely to sustain fractures. Dr. Gross also testified that immobilization would have decreased Jo G.'s bone density and therefore, have increased the risk of fractures. He mentioned numerous other factors that could have increased the likelihood that Jo G. would suffer from a bone fracture, including the use of anticonvulsant medication. Dr. Gross described the other evidence that he considered in reaching the conclusion that this was probably an accidental injury, including the lack of any other fractures, bone fragmentation, bruising, bleeding and the absence of any pattern to the injury.
Dr. Gross's opinions are fully supported by the medical literature indicating that children with cerebral palsy are at greater risk for fractures due to low bone density. Low bone density can be the result of limited ambulation and weight bearing during skeletal growth, periods of immobilization, and the use of anticonvulsant medications. In addition, the literature confirms that such fractures are typically diagnosed considerably later in children with cerebral palsy. The literature also confirms that children with seizure disorders are more likely to suffer fractures as a direct result of seizures.
This result is also consistent with relevant case law, which establishes that a single fracture is generally insufficient to support an abuse finding where, as here, the child has no other injuries or bruises and the parents have no prior history of abuse( In re Brandyn P., 278 AD2d 533 [spiral fracture of infant's leg was consistent with an accidental fall rather than abuse where there were no other physical manifestations of abuse, such as marks, bruises or other fractures]; Matter of Eric G., 99 AD2d 835 [reversing abuse finding where the infant had no other injuries or bruises except for a fractured femur and the parents had no prior history of child abuse]; compare New York City Dept. of Social Services on Behalf of H. and J. Children, 209 AD2d 525 [while a spiral fracture, by itself, does not necessarily lead to a finding of abuse, abuse may be confirmed where the child displays other marks or injuries, including bruises to the rib cage, the bottom of the left foot, the left temple, the mid-portion of the back and a burn mark under the chin]).
2. The Child's Injury Occurred during a Period of Time when she was in the Care of Other Adults besides Respondent Parents
Since the Court has found that NYCCS has failed to establish the first prong of the res ipsa loquitur inference, the doctrine does not apply and there is no need to reach the question of whether the child was in the exclusive care of respondents when the injury most likely occurred. Nevertheless, even if the Court did reach that issue it would conclude that numerous other adults and children could have been present when Jo G. sustained the fracture.
In the instant case, Dr. Gross and Dr. Bekar disagreed about when Jo G. was most likely injured. Specifically, the two experts expressed divergent views about the amount of time that would have passed between the time Jo G. sustained the fracture and the time she demonstrated symptoms of discomfort. According to respondent father, Jo G. first began to demonstrate mild symptoms of discomfort when he changed her after returning to the case address on December 15, 2006.
In Dr. Bekar's opinion, Jo G. would have exhibited symptoms of pain and irritability immediately after sustaining the fracture, suggesting that the interval between the injury and the onset of symptoms was quite short. If the Court were to accept Dr. Bekar's testimony, it would be required to conclude that the child's injury occurred while she was in the care of either Ms. H., the homemaker, who left at about 2:00 PM or respondent father, who arrived at about the same time. During that period, the children's mentor and four of the other children were also present in the home.
Dr. Gross disagreed with Dr. Bekar about how long it would have taken Jo G. to exhibit signs of discomfort. In his view, it could have taken up to 24 hours after Jo G. sustained the fracture, to exhibit symptoms. If the Court were to accept Dr. Gross's view, it would be required to conclude that the child's injury occurred at some point after approximately 3:00 PM on December 14, 2006, e.g., during the 24-hour period prior to the time that respondent father first observed symptoms of discomfort. During that 24-hour period, Jo G. was in the care of respondent mother, respondent father and Ms. H., the homemaker, for approximately five hours. During the same period of time, numerous other adults were present in the home and in a position to have caused the accident or observed any early symptoms Jo G. exhibited, including the children's mentor, the NYCCS caseworker, the maternal uncle and a maternal cousin. During the same period, there were also seven other children in the home and, according to Ms. H., at least one of them, T.C., carried Jo G. out of her mother's bedroom into the living room and placed her in her stroller during the day she was most likely injured.
Both experts testified that the interval between the injury and the appearance of symptoms could have been considerably longer if the original fracture had been a non-displaced fracture that later became a displaced fracture. They both testified that symptoms would not necessarily have been present when the original non-displaced fracture was sustained. They both indicated that symptoms would not necessarily have appeared until after the non-displaced fracture became displaced. In that case, the original fracture could have been sustained at an earlier point in time, perhaps as the result of a seizure, and numerous other adults and children could have been present when it occurred. It is also possible that Jo G. was injured when T.C. picked her up and placed her in her stroller or when she was removed from her stroller by Ms. H. or respondent father.
The Court fully credits the testimony of Dr. Gross that the injury most likely occurred during the 24-hour period prior to when respondent father first observed symptoms. It rejects the contrary findings of Dr. Bekar who lacks the extensive professional experience and training enjoyed by Dr. Gross. Accordingly, the Court concludes that respondents, among others, acted as caretakers of the child during the period that she most likely sustained the fractured femur, therefore, the evidence did not establish prima facie case of abuse against any particular person or persons.
Finally, the Court rejects any suggestion that respondent father's failure to testify requires a different result. Although respondent father's failure to testify warrants the drawing of the strongest negative inference that the evidence will allow (Matter of Antonio NN., 28 AD3d 826, 827 [3d Dept 2006]; Matter of Evan Y., 307 AD2d 399 [3d Dept 2003]), that inference cannot provide a missing element of proof where it otherwise does not exist (Matter of Kayla F., 39 AD3d 983 [3d Dept 2007] [although respondent father's failure to testify warrants the court drawing the strongest inference against him that the evidence will allow, that inference cannot establish corroboration of the child's out-of-court statements where it otherwise does not exist];In re Jared X.X., 276 AD2d 980, 983 [3d Dept 2000] [while respondent's failure to testify permitted the Family Court to draw the strongest inference against him the opposing evidence would allow, that inference could not overcome the inconsistencies in the child's various statements and did not tender sufficient proof to corroborate the child's out-of-court statements]).
In the instant case, NYCCS failed to establish that the injury most likely occurred by non-accidental means and that the child was in the exclusive care and custody of respondent parents when the injury most likely occurred. Respondent father's failure to testify cannot overcome those defects and it does not permit the court to find evidence of abuse where it otherwise does not exist. Since the abuse case is predicated solely upon the doctrine of res ipsa loquitur and since no direct evidence of abuse was introduced, the abuse allegations are therefore dismissed.
3.A Prima Facie Case of Neglect has been Established and is Unrebutted
With respect to the allegations of educational neglect, a finding is entered against respondent mother as to the child Jo G. based on the undisputed evidence that she was not enrolled in school although she was school aged.
With respect to the remaining allegations of educational neglect, a finding is entered against respondent mother as to the children T.C., T.G. and K.G. based on the undisputed evidence that T.G. missed eight days of school and was late 11 times in 2006-2007 (out of a total of then — 47 days) and that she missed 39 days and was late 36 times in 2005-2006 (out of 176 days), that K.G. missed seven days of school and was late six times in 2006-2007 (out of a total of then — 47 days) and that he missed 44 days and was late 31 times in 2005-2006 (out of 176 days), and that T.C. missed 16 days of school and was late once (out of 125 days) in 2006-2007 and that he missed 54 days and was late seven times in 2005-2006 (out of 176 days). In addition, since the evidence relating to unsanitary and potentially dangerous conditions in the home is unrebutted, a finding is entered on that basis as well.
The allegations of medical neglect against respondent mother based on her asserted failure to take the children for their routine medical check-ups are dismissed since NYCCS failed to introduce any evidence that she failed to attend to the children's medical needs and that, as a result, K.G., T.G,, Jo G. or A.C.'s physical, mental or emotional condition was impaired or placed in imminent danger of becoming impaired. Indeed, there was not one shred of evidence introduced to establish that there was a failure to obtain routine medical care for the children let alone evidence that such failure "result[ed] in impairment of the child[ren]'s condition or the imminent danger thereof " (In re Alexander D., 45 AD3d 264, 266 [1st Dept 2007], citing Matter of Faridah W., 180 AD2d 451, 452 [1992], lv denied 80 NY2d 751 [1992]). Accordingly, the allegations that respondent mother failed to ensure that K.G., T.G,, Jo G. and A.C. received a check-up within 12 months, that Z.C. had not had a medical appointment within 11 months, although a follow-up appointment had been scheduled, and that L.C. had not had a medical appointment within eight months, although a follow-up appointment had been scheduled, even if they had been proven, are insufficient standing alone to establish a prima facie case of medical neglect.
The Law Guardian suggests in her written summation that the Court should make a finding against respondent mother based on the medical neglect of Jo G. since respondent mother admitted that she failed to give Jo her Phenobarbital as prescribed. Although the Court retains the authority to "amend the allegations to conform to the proof," the statute explicitly requires that respondent must first "be given reasonable time to prepare to answer the amended allegations" (Family Court Act §1051 [b]). It is the view of this Court that, in the instant case, respondent mother was not given reasonable time to prepare to answer these additional allegations. Although the issue was addressed during the fact-finding by a number of the witnesses, neither NYCCS nor the Law Guardian ever sought to formally amend the petition during the 31 months that the case was pending before this Court. To permit an amendment after the fact-finding hearing has concluded, without prior notice to respondent mother, would be inconsistent with the intent if not the explicit language of the statute.
The additional allegations, that respondent mother failed to take Jo G. to the emergency room to seek prompt medical attention, although she was exhibiting signs of discomfort on December 15, 2006, are also dismissed. There is simply no evidence that Jo G. was exhibiting sufficient signs of discomfort after 10:00 PM on December 15, 2006, when respondent mother arrived home, and prior to 8:30 AM on December 16, 2006, when Jo G. woke up and respondent mother observed symptoms as she was changing Jo G.'s diaper, that would have led a reasonably prudent parent to take the child to the emergency room at an earlier point in time. To the contrary, the evidence adduced establishes that Jo G. was seen by numerous adults on December 15, 2006 and the early morning of December 16, 2006 and that none of them observed any signs of distress. Indeed, the evidence establishes that, on December 15, 2006 at almost 2:00 PM, the homemaker observed Jo G. and stated that she "appeared fine to her" and that she "did not observe anything unusual about Jo G.'s legs and she saw no signs of swelling, redness or discomfort." Later that afternoon, the NYCCS caseworker visited the home between 3:30 PM and 4:05 PM and described Jo G. as "happy laughing, smiling and moving her legs." Early the following morning, there was a different homemaker present in the home. NYCCS did not call her to testify although she presumably could have testified that Jo G. had been exhibiting signs of discomfort early that morning if, indeed, that were the case. Even on Jo G.'s admission to Brookdale Hospital on December 16, 2006, she was described as alert and playful. It was only when her leg was touched that she exhibited any signs of discomfort.
The same conclusion can not be reached with respect to respondent father. Respondent father told respondent mother that Jo G. had cried during the day and that he did not know why. He later reported that she whined and cried out when he changed her diapers and put on her pajamas.
The evidence adduced establishes that the onset of Jo G.'s symptoms was gradual. Up until the time that she was admitted to the hospital, she only exhibited signs of discomfort when her leg was touched or moved. Respondent father, unlike respondent mother spent the entire afternoon and evening of December 15, 2006, with Jo G.. Respondent father, unlike respondent mother, had numerous opportunities to observe Jo G.'s symptoms when her legs were repeatedly touched and moved throughout the day. In this respect, respondent father's failure to testify warrants the drawing of the strongest negative inference against him that the evidence will allow. Accordingly, the Court finds that NYCCS has established by a preponderance of the evidence that respondent father's failure to seek medical attention for Jo G., in response to the symptoms of discomfort that he observed, placed her physical condition in imminent danger of becoming impaired. That evidence is unrebutted and, therefore, the Court enters a finding of medical neglect.
Accordingly, it is
ORDERED, that respondent father's motion to dismiss the allegations of child abuse against him is granted; and it is further
ORDERED, that a finding of child neglect is entered against respondent father based on the evidence of medical neglect; and it is further
ORDERED, that respondent mother's motion to dismiss the allegations of child abuse against her is granted; and it is further
ORDERED, that a finding of child neglect is entered against respondent mother based on the unrebutted prima facie case of educational neglect as to the children Jo G., T.C., T.G. and K.G.; and it is further
ORDERED, that a finding of child neglect is entered against respondent mother based on the unrebutted evidence of unsanitary and potentially dangerous conditions in the home; and it is further
ORDERED, that respondent mother's motion to dismiss the remaining allegations of child 18 neglect is granted.