Opinion
NA XXXX/14
07-28-2016
In the Matter of a Proceeding Under Article 10 of the Family Court Act, Samuel W., CRYSTAL G., Children Under Eighteen Years of Age Alleged to be Abused by Luemay F., SEAN W., KAREN R., COURTNEY G., Respondents.
Ethan Wolf, Esq., Administration for Children's Services, Attorney for petitioner Laura Matthews-Jolly, Esq., Brooklyn Defender Services, Attorney for respondent mother Joan James, Esq., Attorney for respondent father Sean W. Alan Fried, Esq., Attorney for respondent father Courtney G. Richard Colodny, Esq., Attorney for person legally responsible Karen R. Adetokunbo Oseni, Esq., Attorney for the child Samuel Helen Singh, Esq., Children's Law Center, Attorney for the child Crystal
Ethan Wolf, Esq., Administration for Children's Services, Attorney for petitioner Laura Matthews-Jolly, Esq., Brooklyn Defender Services, Attorney for respondent mother Joan James, Esq., Attorney for respondent father Sean W. Alan Fried, Esq., Attorney for respondent father Courtney G. Richard Colodny, Esq., Attorney for person legally responsible Karen R. Adetokunbo Oseni, Esq., Attorney for the child Samuel Helen Singh, Esq., Children's Law Center, Attorney for the child Crystal Lillian Wan, J.
In this contested Article 10 proceeding, after considering all the testimonial and documentary evidence received at the fact finding hearing, the Court finds that the respondent mother, Luemay F., neglected the subject child Crystal by inflicting excessive corporal punishment and as a result derivatively neglected the subject child Samuel. The Court dismisses the abuse cause of action as to the same allegations. Furthermore, the Court dismisses the allegations of physical abuse and medical neglect against both the respondent mother and the respondent father, Sean W., as they relate to Samuel.
Dismissal of Physical Abuse Allegations Relating to Samuel
A child is abused, within the definition of Family Court Act (hereinafter F.C.A.) §1012(e)(i) or (ii), when a parent or other person legally responsible for the care of the child
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 creates or allows to be created 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 physical or emotional health or protracted loss or impairment of the function of any bodily organ.Family Court Act §1046(a)(ii) provides that proof of injuries to a child that would ordinarily not be sustained in the absence of an act or omission of the caretakers shall be prima facie evidence of abuse or neglect. Therefore, a prima facie case of abuse may be established by evidence of the injury and evidence that the respondents were the caretakers of the child at the time the injury occurred. The statute authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitor. See Matter of Philip M., 82 NY2d 238 (1993). Once the petitioner has established a prima facie case, "the burden of going forward shifts to the respondents to rebut the evidence of parental culpability;" however, "the burden of proving child abuse always rests with the petitioner." Id. at 244. Furthermore, the identity of the individual who abused the child does not have to be established. Matter of Fantaysia L., 36 AD3d 813 (2nd Dep't 2007) (Family Court properly concluded that a prima facie case of sexual abuse was established against both the father and the paternal grandmother in one household, and the mother and the stepfather in a separate household because the three-and-a-half-year-old child moved between the two households at the time she contracted a sexually transmitted disease). Once a prima facie case has been established, the respondents may rest without presenting any evidence and allow the Court to decide the case on the strength of the petitioner's case alone, or the respondents may challenge the prima facie case by presenting evidence (1) that the child was not in the respondent's care at the time the injury occurred; (2) that the injury could reasonably have occurred accidentally; or (3) by countering the evidence of the child's injury or condition. Matter of Philip M., 82 NY2d at 245.
In the instant matter, the Court finds that while the petitioner did establish a prima facie case of abuse as it relates to the child Samuel's femur fracture, the respondents have successfully rebutted the allegations of abuse and as such, the abuse allegations against Ms. F. and Mr. W. as to Samuel should be dismissed.
Based on the credible testimony of the petitioner's witnesses, including the testimony of Dr. Stephen Ajl, an expert in pediatrics and child abuse pediatrics, and the documentary evidence, the Court finds that the petitioner established a prima facie case of child abuse against both the respondent mother and respondent father by demonstrating that 6-month-old Samuel sustained a transverse fracture to his left femur, and that the injury was sustained within a time frame when both respondents had access to the child. Dr. Ajl was not Samuel's treating physician and has never examined Samuel, but he reviewed the ACS records and Samuel's medical records to form his opinion. Dr. Ajl testified that Samuel's femur fracture was an inflicted injury. Dr. Ajl noted that there was no history that was presented by the parents which was compatible with the femur fracture. He further testified that a moderate amount of force would have been required to cause the fracture such as a car accident, a bicycle accident, or falling off a changing table or bunk bed. Routine blood tests done at New York Methodist Hospital were all normal and no organic cause was found for Samuel's fracture. There was also no evidence of demineralized bones that would lead to osteogenesis imperfecta testing. Dr. Ajl testified that since Samuel's injury did not have callus formation, it was an acute injury that could be up to ten to twelve days old. Dr. Ajl confirmed on cross examination that the injury could have occurred one or two or three days prior to the x-ray being taken on April 16, 2014. The petitioner's inability to pinpoint the exact date of the injuries and link the injuries to an individual respondent is not fatal to the establishment of a prima facie case against all respondents. Matter of Matthew O., 103 AD3d 67 (1st Dep't 2012). Although Samuel was legally removed from the mother's care and released to the care of the father on April 10, 2014, the mother still had caretaking responsibility for Samuel and she had unsupervised access to Samuel on April 15, 2014, the day before the femur fracture was diagnosed. The record before the Court established that the father, Samuel W., took the subject child to the mother's home on the evening of April 15th. The father left to go to the store for a short time and then returned to the mother's home. According to Dr. Ajl, no adequate explanation was given by the parents for Samuel's femur fracture. The hospital records indicated that the parents denied any history of trauma.
Once the petitioner has proven its prima facie case, the burden then shifts to the respondents to rebut the presumption of culpability by offering a reasonable and adequate explanation for the injuries or by showing that the child was not in their care when the injury was sustained. See Matter of Philip M., supra; Matter of Nicholas S., 968 N.Y.S.2d 654 (3rd Dep't 2013). In the instant case, the Court finds that the respondents have successfully rebutted the prima facie case of abuse with the testimony of pediatric radiologist Dr. Jack Levenbrown, who established that the injury could have occurred accidentally. The Court finds Matter of Amir L., 104 AD3d 505 (1st Dep't 2013), instructive in this case. In Amir L., the First Department found that the opinion of the petitioner's medical expert was undercut by an article in the Journal of Pediatric Orthopedics entitled "Femur Shaft Fractures in Toddlers" which documented two cases of six-month-old infants who fractured their femurs by falling from a bed and sofa, respectively. In that case, the respondent's medical experts testified that the father's explanation, that the child rolled over and fell off the couch when he went to dispose of a soiled diaper, was a reasonable one and that this accident most likely resulted in the child sustaining a femur fracture.
Here, Dr. Ajl's testimony was challenged by a journal article from Pediatric Emergency Care, entitled "Transverse Fractures of the Distal Femoral Metadiaphysis: A Plausible Accidental Mechanism." Dr. Levenbrown explained that the article shows an x-ray that is "exactly the same" as Samuel's x-ray and discusses how this type of fracture could be caused by an accidental short fall. Dr. Levenbrown concluded to a reasonable degree of medical certainty that Samuel had an impacted femur fracture that was the result of an accident. Dr. Levenbrown noted that the records contained an explanation that Samuel fell off an adult's lap, which he considered to be the most likely explanation. Dr. Levenbrown further testified that Samuel had a solitary fracture that is not associated with abuse, that there was no abusive head trauma, no skull fracture, no retinal hemorrhages, no rib fractures, and no other injuries to Samuel. Dr. Levenbrown noted that the article from Pediatric Emergency Care is an authoritative article from a peer review journal, and the article confirmed his opinion that this was an accidental fracture. Dr. Levenbrown classified Samuel's fracture as an acute fracture that was less than seven days old because there was no periosteal new bone. Dr. Levenbrown further stated that the injury occurred between April 9, 2014 and April 16, 2014, and that the child falling off the lap of an adult on April 14th was consistent with the child's injury. Dr. Levenbrown did not believe that a twisting motion caused this injury because the twisting mechanism results in different types of fractures such as corner fractures, spiral fractures, and oblique fractures. Dr. Levenbrown concluded that the force went up through Samuel's knee to the hip area.
The Court is not compelled to credit an expert's reliability as a matter of law, and the Family Court can reject an expert's testimony. See Matter of Christine F., 127 AD2d 990 (4th Dep't 1987); Matter of Anthony YY., 202 AD2d 740 (3rd Dep't 1994). Where competing medical experts present different or conflicting conclusions, the finder of fact is charged with assessing the credibility of the witnesses and the weight to be accorded to each expert. See Gray v. McParland, 255 AD2d 359 (2nd Dep't 1998); People v. Hamilton, 186 AD2d 581 (2nd Dep't 1992). The Court is not ultimately persuaded by Dr. Ajl's testimony and finds that it was deficient in several respects. The Court credits the testimony of Dr. Levenbrown over the testimony of Dr. Ajl since Dr. Levenbrown is a radiologist with approximately forty years of experience, and he has been deemed an expert in pediatrics, radiology and pediatric radiology. Dr. Levenbrown testified that he reviews approximately 1,000 x-rays per week and approximately 45,000 x-rays per year. While Dr. Ajl is a qualified child abuse expert, he is not a radiologist. Dr. Ajl admitted that he does not read x-rays and that he reviews x-rays with the radiologist and has the radiologist explain and describe the films to him. Dr. Ajl also admittedly lacked expertise in the dating of fractures and stated that he relies on radiologists for the timing of fractures.
The Court also finds it significant that ACS agreed resolve the case as to co-respondent, Karen R., with a three-month Adjournment in Contemplation in Dismissal (ACD). Ms. R.'s case was settled on May 9, 2016, the last day of the trial. This ACD settlement offer had already been extended to Ms. R. in March 2016, however the attorney for the child was not consenting to such a resolution at that time, but he did ultimately consent to the ACD. At the time of the settlement, Ms. R. and all the medical experts had already completed their testimony. Ms. R. testified that she was an old friend of the father's and she was babysitting Samuel in her home on April 14, 2014 while the father attended a court proceeding in Family Court. Ms. R. indicated to the Court that she was sitting down on a lounge chair that was approximately 18 ½ inches high off the ground with Samuel sitting on her lap. She explained that Samuel leaned forward to reach for his bottle that was on top of the nightstand, and Samuel fell out of her lap and landed face down on her hard wood floor on his left side. Samuel cried for less than five minutes and she fed him a bottle. Samuel did not cry after he was fed. The father returned home approximately thirty minutes later and Ms. R. informed him of Samuel's fall. Ms. R. was concerned about Samuel hitting his head so she told the father not to let Samuel go to sleep. The Court found Karen R. to be credible and forthright. The allegations of physical abuse and medical neglect against the respondent mother, respondent father Mr. W., and Karen R. are identical as they relate to Samuel. Arguably, Ms. R., the individual who was watching Samuel at the time he fell, was the most culpable of the three respondents in terms of how Samuel sustained the femur fracture, however ACS was ultimately not seeking any finding of abuse or neglect as to Ms. R.
While the Court is entitled to draw the strongest negative inference against the respondent father for his failure to testify in these proceedings, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dep't 2007); Matter of Janiyah T., 26 Misc 3d 1208(A) (Kings County Family Court 2010). A review of the entire fact finding record warrants a dismissal of the abuse allegations as to Samuel as they pertain to both the respondent mother and respondent father.
Dismissal of Medical Neglect Allegations Relating to Samuel
Turning to the allegations that the respondent mother and respondent father neglected the medical needs of Samuel, in order to sustain a medical neglect finding, the petitioner has the burden of proving by a preponderance of the evidence that the respondents failed to exercise a minimum degree of care in supplying the child with adequate medical care and that the parent's failure placed the child in imminent danger of becoming impaired. Matter of Shawndel, 33 AD3d 1006 (2nd Dep't 2006). The petitioner has failed to meet that burden here. The standard is not whether the parent made the right or wrong decision but rather whether the parent took an acceptable course of medical treatment in light of all the surrounding circumstances. Matter of Hofbauer, 47 NY2d 648 (1979). The Court must evaluate the parent's behavior objectively as a reasonably prudent parent. Matter of Amir L., 104 AD3d at 507.
Samuel was in the physical care of both the respondent mother and the respondent father at the time he sustained the femur fracture. The respondent father brought Samuel over to the mother's home for a visit on April 15, 2014 at approximately 7:00pm. It was at that time that the mother first noticed that "something wasn't right" with Samuel when she tried to put the child in a walker. Dr. Levenbrown credibly testified that he would expect "very little" in the way of symptoms as a result of the femur fracture. Dr. Levenbrown further stated that he would not expect screaming and crying from Samuel and that the child would not be in any pain if his leg was not moved around. Dr. Levenbrown further testified that if a parent called him at 7:00pm with these symptoms, he would recommend to the parent that the child should be watched overnight "and see what happens." He testified that without x-rays, an individual would not be able to tell that Samuel had a fracture femur. Dr. Levenbrown noted that he ran an emergency room for five years and that many times "you just can't tell" without the x-ray. It is also significant that Samuel's primary medical doctor did not note any visible discoloration or abrasions on Samuel's skin. The parents decided to wait to bring Samuel to the doctor in the morning because he already had a previously scheduled appointment. Dr. Levenbrown further testified that waiting until the next morning would have "no deleterious effect in terms of healing or anything else." Samuel was indeed brought to New York Methodist Hospital by the mother and the father the very next morning, April 16, 2014. Dr. Ajl even noted on cross examination that the seven hours that elapsed at the hospital from the time Samuel was initially seen by a medical professional to the moment that Samuel's leg was casted posed no serious risk to Samuel. The petitioner failed to produce evidence that waiting until the next morning to bring Samuel for medical attention was not a reasonable and acceptable course of treatment or that Samuel suffered from any harm as a result of the alleged delay. Accordingly, the allegations of medical neglect are dismissed.
Finding of Neglect as to Crystal
Turning to the subject child Crystal, the Court finds that the respondent mother neglected Crystal within the meaning of F.C.A. §1012. The respondent mother failed to provide Crystal with proper supervision or guardianship by unreasonably inflicting excessive corporal punishment or by other acts of a similarly serious nature requiring the aid of the Court. Although parents have a right to use reasonable physical force against a child in order to maintain discipline in the home, the use of excessive corporal punishment constitutes neglect. Matter of Matthew M., 109 AD3d 472 (2nd Dep't 2013). It is well established that even one instance of excessive corporal punishment can be the basis of a neglect finding. Matter of Dalia G., 128 AD3d 821 (2nd Dep't 2015); Matter of Joseph O'D., 102 AD3d 874 (2nd Dep't 2013); Matter of Sheneika V., 20 AD3d 541 (2nd Dep't 2005). The Second Department has found excessive corporal punishment where a parent choked the child and scratched the child's neck. See Matter of Jallah J., 118 AD3d 1000 (2nd Dep't 2014). It is significant to the Court that the respondent mother has a prior finding of neglect based on excessive corporal punishment as it relates to the subject child Crystal and her sibling, Stephan Marchisella. ACS introduced the Order of Fact Finding dated May 24, 2006 on Dockets NA XXXX/05 as Petitioner's Exhibit 3. A full fact finding hearing was held on that case and the Hon. Susan S. Danoff determined that the mother neglected the child Stephan "by inflicting excessive corporal punishment upon the child on the date of the incident and at other times in the past." Judge Danoff further found that the respondent mother "showed no remorse for her actions and admitted allegations contained in the petition." The Court also entered a derivative finding of neglect as to the subject child Crystal. According to the prior Article 10 petition, the mother struck 8-year-old Stephan with a belt causing the child to sustain bruises all over his body, including his face. Pursuant to the Order of Disposition, which was introduced into evidence as Petitioner's Exhibit 4, Stephan was placed with ACS on disposition. The mother's testimony with regards to her prior finding of neglect was troubling to the Court. When counsel for ACS questioned the mother about the prior finding of neglect as it relates to Stephan, the mother stated "I would say something different." In response to the Court's further inquiry on this topic, the mother stated that she did not think that she was guilty and that she did what she "had to do" to "protect" the children. She claimed that Stephan had a knife to the babysitter's neck and that she struck the child with a belt to get the knife out of the child's hand and the belt hit Stephan in the face.
With regards to the current allegations that the mother choked Crystal, three separate Oral Report Transmittals were called into the State Central Register on April 7, 2014. The first report was called in at 9:14pm by Wilfredo Cruz, a law enforcement official from the 73rd Precinct. The second report was called in at 9:43pm by Sharice Marshall, a social worker at Downstate Hospital. The third report was called in at 11:35pm by Alex Nagoda, an EMS worker affiliated with the Fire Department. All mandated reporters alleged that the respondent mother broke the child's cell phone and laptop and choked Crystal. ACS caseworkers Kamillah Durden, Michelle De La Cruz and Police Officers Michael Pangallo and Roberto Cruz all testified consistently to Crystal's out of court statements that on April 7, 2014, the respondent mother choked her after an argument. Ms. De La Cruz testified that Crystal told her that she was upset that her mother gave her brother Stephan $100, and then she had an argument with her mother over taking out the trash. Crystal was yelling at her mother and that is when her mother grabbed her by the neck and began choking her as she was leaning against Samuel's "Pack n Play" playpen. Crystal told Ms. De La Cruz that this was not the first time that her mother choked her and that there was a prior incident in February 2014 where the mother got upset with Crystal for leaving the kitchen light on, so the mother choked her as she was leaning against the kitchen counter. Officer Pangallo testified that Crystal told him that the mother pushed her into a playpen and he observed a dented playpen in the living room of the apartment. Petitioner's Exhibit 9, the ACS Investigation Progress Notes, also contain the out of court statements of the child that the mother choked the child. According to the progress notes, Crystal told ECS caseworker Kamillah Durden that her mother took her cell phone and lap top after they had an argument over taking out the trash. When Crystal tried to retrieve her laptop from her mother's bedroom, the mother started to "fight her" and "choked her around her neck to the point that she could not breathe." Furthermore, according to the notes, Crystal tried to kick her mother off of her but she was not able to kick the mother because of the mother's position. Crystal stated that her mother eventually let go of her and then she went into the living room and "smashed the cellphone on the floor" breaking the screen and "broke the laptop in half." Ms. Durden's testimony was consistent with her progress notes.
The record established that Samuel was not in the playpen at the time and that he was in the mother's bedroom. --------
The subject child's out of court statements are corroborated by the photographs of the child (Petitioner's Exhibit 10(a)-(e)), the medical records, and multiple witnesses' observations of the scratch marks that Crystal sustained as a result of the incident. Ms. De La Cruz testified that Crystal had a linear scratch mark, approximately three-quarters of an inch long, under her left eye and also a mark on the lower part of Crystal's neck, approximately one-inch long. Crystal also told Ms. Durden that her mother has used physical punishment on her in the past and that her mother usually punches her in the head. According to Petitioner's Exhibit 2, the Downstate Medical Center records, Crystal was taken to the hospital on April 7, 2014 at approximately 8:55pm. The chief complaint in the emergency room was listed as "injury to neck." Crystal reported "mild pain" as a result of being "choked." Furthermore, the medical records note that Crystal presented with contusions and abrasions. The principal diagnoses was noted by Dr. James Willis as "multiple contusions with abrasion," "neck pain" and "child abuse." The photographs in evidence depict the injuries that Crystal sustained. The respondent father, Mr. G.'s testimony provided further corroboration of Crystal's story to ACS. Mr. G. testified that he picked up Crystal on April 7, 2014. He testified that Crystal had scratches, one on the left side of her face underneath her eye and one on her neck. Mr. G. observed Crystal's laptop broken into two pieces and the cellphone screen "smashed." Crystal told the father that her mother choked her. Caseworkers Ms. Durden, Ms. De La Cruz, and Police Officers Cruz and Pangallo all described the scratches on Crystal. Furthermore, Crystal's statements are also corroborated by the mother's statements to ACS caseworker, Ms. Fairclough. Ms. Fairclough testified that she interviewed the mother at her home on April 8, 2014, and the mother acknowledged that she tried to restrain Crystal when the child was upset by pressing her hand against her neck and that she may have scratched the child while doing this.
The mother presented the testimony of Keeda McLean, Crystal's former fifth grade teacher, and Sally Girouard, a dean at Crystal's school, in an attempt to establish that her actions towards Crystal on April 7, 2014 were reasonable given Crystal's history of aggressive behavior. The Court is not persuaded by the argument. Ms. Girouard testified that Crystal has been suspended from school numerous times and she has witnessed Crystal being physically violent towards other students, that Crystal can often be aggressive and loud, and has made threats towards teachers and students. Ms. McLean testified that when upset Crystal would tear papers, overturn furniture and throw small objects, however Crystal is also a very bright, intelligent, motivated child and "feels despondent" because of the "situation at home." She further stated that Crystal felt that she had no one who loved her or supported her at her mother's home and that Crystal claimed "my mom talks to me this way so this is how I talk to other people." Crystal's school suspensions and her behavior at school is not a defense to the mother's actions on April 7, 2014.
With regards to Crystal's in court testimony, the Court found that she minimized the April 7th incident saying that her mother "put her hand on my chest" "backing me up" into the playpen and that her mother scratched her collarbone with her finger nail. Crystal was twelve- years-old at the time of her testimony and nine-years-old at the time of the incident. It is not uncommon for children to minimize allegations against their parents or for them to even retract or recant prior statements. The Court is not required to set aside a finding because of a child's recantation of the prior allegations. See Matter of Charlie S., 82 AD3d 1248 (2nd Dep't 2011). "A child's recantation of allegations of abuse does not necessarily require Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children." Matter of Kayla N., 41 AD3d 920, 922 (3rd Dep't 2007). In assessing the credibility of the recantation, the Court must consider the circumstances surrounding the recantation. See Matter of Melody H., 121 AD3d 686, 687 (2nd Dep't 2014) (Family Court did not err in rejecting the child's recantations in light of the evidence that suggested that the subject child recanted the allegations "in order to keep peace in the family"); Matter of Harrhae Y., 112 AD3d 512 (1st Dep't 2013) (children's recantation of their initial out of court statements did not undermine their credibility since the record demonstrated that the children recanted their statements because they wanted to prevent their mother from having a second finding of neglect entered against her); Matter of Kayla N., 41 AD3d 920 (2nd Dep't 2007) (noting that the very first thing that the child told the police was that she did not want the respondent to be arrested); Matter of Ida EE., 31 AD3d 923 (3rd Dep't 2006) (subject child was under pressure from her family who encouraged her to change her story, and that the child was very unhappy with her current foster care placement and missed her family a great deal); Matter of R./B. Children, 256 AD2d 96 (1st Dep't 1998) (child's out of court statements were not undermined by her recantation of the sexual abuse allegations in view of the evidence that the recantation was based solely upon the child's reluctance to upset her mother and to put the respondent in jail). The Court notes that Crystal has been in non-kinship foster care for the last year and a half and has made repeated requests for unsupervised visitation with both of her parents. Until recently, the respondent mother has not wanted to have unsupervised visitation with Crystal because of the pending allegations made by Crystal. Notably, Crystal told the Court on the stand that when she used the word "choked" two years ago when the allegations were being investigated she meant that she was she was not able to breathe because her mother was "slightly on top of her" putting pressure against her. Crystal also indicated that she tried to kick her mother off her body but was not successful. Notably, when the Court questioned Crystal about whether her mother has ever disciplined her by hitting her, Crystal indicated that her mother hits her with a belt "sometimes" on the legs when she is "bad."
The respondent called Dr. Mark Taff, an expert in forensic pathology and anatomical pathology to rebut the allegations that Crystal was choked. The Court gives little weight to this testimony. Dr. Taff testified based on his review of records and photographs. He has never met or treated Crystal. Dr. Taff concluded that Crystal was not asphyxiated due to choking because she did not exhibit the constellation of symptoms of a person who has been asphyxiated, such as brain injury, broken bones, loss of consciousness, voice changes, or petechial hemorrhages in the eyes. However, on cross examination Dr. Taff acknowledged that an individual who is choked for ten seconds, as Crystal indicated according to the records, could experience pain, shortness of breath and difficulty breathing and that a physical examination may not show the positive findings of choking. Notably, Dr. Taff also stated that Crystal did have evidence of blunt force trauma based on the presence of scratches on her collar bone and her temple area.
The Court found the testimony of the mother to be self-serving and incredible in her description of the incident with Crystal on April 7, 2014. The mother minimized her own actions towards her daughter and stated that Crystal was "running" towards her to get to the bedroom, and she put her right hand out to stop Crystal, and Crystal "hit my right hand and then went backwards in the side of the playpen." Ms. F. incredibly claimed that she did this to protect Crystal, herself and baby Samuel who was inside the bedroom.
While the Court finds that the mother used excessive force towards Crystal, her actions did not rise to the level of physical abuse as defined under F.C.A. §1012. While expert testimony is not always required to prove a case of physical abuse, based on the record before the Court, the petitioner did not establish its burden of proof that the mother's actions caused or created a substantial risk of death, or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ. Accordingly, the allegations of abuse as to the child Crystal are dismissed.
Derivative Finding of Neglect as to Samuel
F.C.A. §1046(a)(i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of...the respondent." The Second Department has stated that the focus of the inquiry in cases of derivative abuse or neglect "is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood." Matter of Dutchess County Dept. of Social Servs. on Behalf of Douglas E., 191 AD2d 694, 694 (2nd Dep't 1993). Furthermore, the Second Department has long held that the excessive corporal punishment of one child justifies a finding of derivative neglect as to the remaining children in the home. Matter of Jacob P., 107 AD3d 719 (2nd Dep't 2013); Matter of Amerriah S., 100 AD3d 1006 (2nd Dep't 2012); Matter of Jordan W., 59 AD3d 558 (2nd Dep't 2009). In determining whether a derivative finding is warranted as to Samuel, the mother's prior finding of neglect as to Stephan and Crystal is significant. In Matter of Evelyn B., 30 AD3d 913 (3rd Dep't 2006), the Third Department found that a mother's prior findings of neglect established a continuing pattern of neglect perpetrated by respondent upon her children, which in turn, evidenced respondent's fundamental misunderstanding of her parental responsibilities. The fact that the finding against the respondent mother was entered in 2006 does not render the earlier finding immune from the Court's decision. Id. at 915. The prior proceeding involved similar allegations of excessive corporal discipline of the mother's then eight-year-old son, Stephan. Stephan was removed from the mother's care and placed into foster care as a result. Crystal was only a one-year-old infant at the time the prior neglect petition was filed.
The excessive corporal punishment finding as to Stephan and Crystal in 2006 coupled with the excessive corporal punishment finding that the Court is now entering as to Crystal evidences a course of conduct that places an infant child at risk. In Matter of Eli G., 189 AD2d 764 (2nd Dep't 1993), the Court upheld a derivative finding of neglect as to the two younger children where the evidence established that the mother's excessive corporal punishment of the older child was not an isolated incident but a pattern of discipline. The Appellate Division also noted that "there was a danger that these children would be subject to the same type of corporeal punishment as they grew older." Id. at 765. With the respondent mother's history of excessive corporal punishment, a substantial likelihood exists that the established pattern will continue. The Court does not need to wait for Samuel, a vulnerable infant, to incur an injury to exercise jurisdiction. See Matter of Cruz, 121 AD2d 901 (1st Dep't 1986).
This constitutes the decision of the Court. DATED: July 28, 2016 __________________________________ Hon. Lillian Wan