39 Misc.3d 1241(A), 2013-50966, In re Nicole C.

Citation972 N.Y.S.2d 144,39 Misc.3d 1241(A)
Docket Number2013-50966
Date10 June 2013
PartiesIn the Matter of NICOLE C., A Child under the Age of Eighteen Alleged to be Neglected and Abused and by v. Jane C., Samuel C. No. NA-21238/09.

Page 1241(A)

39 Misc.3d 1241(A)

972 N.Y.S.2d 144

In the Matter of NICOLE C., A Child under the Age of Eighteen Alleged to be Neglected and Abused and by

v.

Jane C., Samuel C.

No. NA-21238/09.

No. 2013-50966

New York Family Court, Kings.

June 10, 2013

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Anthony James DiMango, Esq., Assistant Corporation Counsel, Administration for Children's Services, Brooklyn.

Carol M. North, Esq., Joan L. Bernbaum, Esq., New York, for respondent Father.

Jacqueline McMickens, Esq., Brooklyn, for respondent Mother.

Resham Mantri, Esq. Juvenile Rights Project, Legal Aid Society, Brooklyn, for the Children.

EMILY M. OLSHANSKY, J.

The question presented in this child protective proceeding is whether the doctrine of res ipsa loquitur compels finding of child abuse where the experts presented by the Administration for Children's Services (hereinafter, " ACS" ) testified that the baby's fractures were not the result of Rickets and, therefore, must have been caused by " physical abuse until we identify some other cause; " while respondents' experts testified that the child's injuries were the result of Infantile Rickets or vitamin D deficient bone disease and a degree of force expected in routine medical and child-care. Additionally, respondents' experts testified that some of the injuries occurred while the baby was hospitalized and not in the exclusive care of respondent. For the reasons set forth herein, the Court finds that respondents rebutted any evidence of parental culpability and the allegations of child abuse are, therefore, dismissed.

PROCEDURAL HISTORY

Factual Background

Respondent mother and respondent father met when they were 16 and 18 years old respectively. They married on July 19, 2008, after the mother had suffered two miscarriages.

On May 28, 2009, the mother and father became the parents of their first child and named her Nicole C. When the parents learned that the mother was pregnant they were thrilled. Both of them took a training program at the hospital for new parents. Nicole was a full-term baby. She was born when her mother was 33 years old.

The pregnancy was not an easy one. The mother had nose bleeds, swollen legs, skin rashes, sinus and ear infections and morning sickness, resulting in frequent vomiting.

Her doctor instructed her to take pre-natal vitamins but she could not keep them down. She tried different vitamins but continued to vomit. Finally, the doctor recommended Flintstones vitamins and the mother was sometimes able to keep them down.

When Nicole was born she weighed 6 lbs, 8 ounces. She was jaundiced and she had a sickle cell trait. She was kept in the hospital in the neonatal intensive care unit for four days, where she was treated with phototherapy and UV lights to help in the breakdown of excess Bilirubin.

The mother was medically cleared and released from the hospital after three days. While the baby remained hospitalized the parents stayed in a hotel room they rented near the hospital to ensure that the mother could regularly breastfeed. The doctors had stressed the importance of breastfeeding especially in light of Nicole medical problems. Because the mother was not producing sufficient milk the parents met with a lactation specialist.

After Nicole was medically cleared and released from the hospital, her parents regularly brought her to the pediatrician and consulted with her doctor regarding Nicole's " colics" 1 which began a few weeks after birth. After Nicole was discharged, the mother continued to breastfeed. Nevertheless, after approximately three or four weeks, because she was not lactating adequately the parents began to use formula. At first, they tried Similac's original formula but it seemed to make the " colic" worse. Thereafter, they tried different formulas. They discussed the possibility that Nicole might be lactose intolerant like her father and therefore, tried a soy-based formula but that gave her diarrhea. Nicole also had difficulty sleeping and generally slept for short periods of 20-30 minutes at a time.

During these initial weeks, the parents took Nicole to the pediatrician five times to monitor her medical problems. The purpose of the visits was to check on Nicole's jaundice; to explore the cause of " crystals in her urine and diaper; " to follow-up on Nicole's sickle cell trait; to discuss her frequent crying and the condition that had been diagnosed as " colic" and, for a regular check-up. For the " colic," the pediatrician recommended " Gripe water" and more aggressive burping.

During the initial weeks after Nicole was born the parents focused almost exclusively on her care. The mother, an attorney, was on maternity leave from her firm where she worked as a recruitment manager. She was planning to return to work in September 2009. The father, an accountant, had just returned to work after taking almost one month for parental leave.

On July 11, 2009, the mother left Nicole with her father and she went out to have brunch with several friends. She was gone from 3 PM to 7:30 or 8:00 PM. When she returned with two of her friends the baby was sleeping. The mother and her friends went upstairs to work on Facebook and look at pictures of the baby.

The following day, July 12, 2009, the mother left Nicole with her father and she went out shopping with friends. She was gone from approximately 3:00 or 4:00 PM to 9:00 PM.

At approximately 8:30 PM that evening, when the mother was returning home, she called the father to ask him if he needed anything. While they were talking, the mother heard the baby begin to cry in the background. The mother asked the father if everything was okay. The father said that everything was fine and he speculated that maybe the " colic" had returned.

The mother arrived home shortly thereafter. She changed her clothing and ate dinner. She fed the baby. She spoke with the father. The father said that the baby had been fine all day. He said that Nicole ate and slept normally. The mother attempted to breastfeed the baby but she would not eat. She started to cry. The mother assumed that Nicole wanted to be held and she held her in her arms. She continued to hold the baby for most of the night. The baby alternately cried and slept for brief periods throughout the night.

The Injuries

The following morning, July 13, 2009, at approximately 5:30 AM, the father woke up. He started to get ready for work. He changed the baby's diaper. He noticed that Nicole's right thigh looked swollen and that she seemed to be holding her leg differently than usual. The father showed the mother what he saw. They agreed that something was wrong. Later that morning, when the pediatrician's office opened, the parents called and made an appointment for that day. The father decided did not go to work. Instead he and the mother took the baby to the doctor.

The pediatrician examined the baby and concluded that she might have a bacterial infection or septic arthritis. She told the parents to take the baby to the New York University Medical Center's emergency room. The pediatrician called Dr. Fulton at New York University in advance and told her to expect them. The parents followed the doctor's instructions and took the baby directly to the emergency room.

The Hospital

At the hospital the doctors examined the baby and spoke with the parents. The parents described the baby's medical history. They also reported that the baby ate and slept normally the day before. They explained that she had slept and cried intermittently through the night. They explained that early that morning the father noticed that the baby had a swollen leg and thigh.

Radiology Studies

After the baby was examined, x-rays were taken. The films revealed fractures of the baby's right femur and right clavicle. The mid-to-distal-right clavicle fracture was " mildly displaced." It was " acute to sub-acute." The radiological studies " confirmed the absence of periosteal reactions or calluses indicating acuity of the fractures."

When the parents were told about Nicole's injuries they were shocked. When the doctor asked the parents for an explanation of how this could have happened they were unable to explain it.

The baby was admitted to the hospital and remained there for seven days. During that period, numerous procedures and tests were conducted, including an abdominal ultrasound, a head CT scan, an ophthalmology study, a SCAMP series and multiple x-rays.

Nicole was placed in a Davlik's harness, to restrict her movement. The baby was described by hospital staff in the records as " pleasant." Staff indicated that she only " cried with movement of her leg." The records indicate that when the baby was admitted she was " in no apparent stress" and that she did not appear to be in pain. The only pain medication prescribed was " Tylenol PRN for pain." Hospital records dated July 13 and 14, 2009, establish that the baby remained pain-free and that " No PRN Tylenol given thus far ." According to the records the baby moaned or whimpered occasionally but was easily reassured by occasional talking or touching.

Radiological studies performed on July 13, 14 and 20, 2009 showed that the baby had no other fractures.

On July 14, 2009, Nicole was examined by Dr. Palusci, a pediatrician who specializes in child abuse. Based on that examination and his review of the radiology reports, he concluded that abuse was the cause of the fractures, at least until he was able to " identify some other cause." As a result, on July 15, 2009, a report of suspected child maltreatment was called in by New York University to the New York State Central Registry.

According to the records, during the day of July 15, 2009, the baby remained free of any symptoms of pain. She was described as contented and relaxed. Later that day, it was noted that she occasionally grimaced or frowned....

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