Baby Boy Santos, In re

• Decision Date: 17 August 1972
• Citation: 336 N.Y.S.2d 817,71 Misc.2d 789
• Parties: In the Matter of BABY BOY SANTOS * , Alleged to be a Neglected Child. Family Court of City of New York, New York County
• Court: New York City Court

Page 817

336 N.Y.S.2d 817

71 Misc.2d 789

In the Matter of BABY BOY SANTOS ^*, Alleged

to be a Neglected Child.

Family Court of City of New York, New York County.

August 17, 1972.

J. Lee Rankin, Corporation Counsel, by Anshem, Asst. Corp. Counsel, for petitioner.

Cohen, Friedman, Goldstein and Raphael, by Edward Friedman, New York City, for respondent.

Charles Schinitsky, Brooklyn, Legal Aid Society, David Resnick, New York City, law guardian for children.

DECISION AND ORDER

SHIRLEY WOHL KRAM, Judge:

This is a petition charging neglect of 'Baby Boy' Santos, a/k/a Rodriquez, a later-born child, based upon a finding of abuse and neglect of an older child in the same household.

On February 17, 1972, Maria Santos the child of the respondent mother herein and one Roberto Santos, was declared abused and neglected by respondent mother Angela Hernandez. At the time of the occurrence the mother was living with Victor Rodriquez, the father of the male child who is the subject of this proceeding.

The hospital records (Sec. 1046 subd. (a) par. IV of the F.C.A.), as well as reports filed pursuant to Sec. 383--a of the Social Services Law (F.C.A. Sec. 1046 subd. (a), par. V) indicate that on August 27, 1971 child Maria, 8 months of age, was admitted to the emergency room at St. Luke's Hospital because of a depression on the right side of the child's head. Photographs made by the hospital staff on this date show the depression in the skull to be several inches in width and fairly deep. The diagnosis of the examining physician was 'fracture of the right side of the skull, as well as fractures of the second, third and fourth metacarpals of the right hand, and an old ecchymosis under the right eye. In layman's language, a black eye which was in the process of healing. Maria was brought to the hospital because a friend of the mother noticed the depressed area in the child's skull. Respondent mother explained this was the first time she saw the injury and believed it occurred when the child fell back in her crib on to the mattress, striking her head on a toy. The doctor testified, as does the hospital record indicate, that there was no pericranial swelling. This in the doctor's opinion suggests an 'old process' which could not have occurred in the manner described by the mother.

The injury to the child's eye, according to the mother, was caused by the child poking a toy into her eye. The mother further explained that the fracture of the hand occurred when the little girl slept with her hand behind her back.

An operation was performed at St. Luke's on August 30th, to elevate the pariental skull fracture.

When one child has been abused, discretion must be exercised to protect other children in a household, or those about to become members of the household. The hearing as to the abuse and neglect of the little girl on February 17, 1972 was a lengthy one at which the respondent mother testified, and the finding as a result of such hearing is sufficient to support the conclusion that 'Baby Boy' is Likely to suffer serious harm in a household such as this. The record indicates that in the abuse case concerning the older child, the finding by the trial judge was made and stated specifically as 'beyond a reasonable doubt'. In view of par. i of subd. (a) of Sec. 1046, F.C.A., which states that in a fact-finding hearing any determination that the child is abused or neglected must be based on a preponderance of the evidence (Matter of Young, 50 Misc.2d 271, 270 N.Y.S.2d 250), the indications here are that the evidence was so compelling and convincing, the trial judge found this level of proof present.

It has been the experience of the Court, as well as authorities in the subject of child abuse, that there...