Matter of Julia Bb.
| Decision Date | 31 May 2007 |
| Docket Number | 500458. |
| Citation | 42 A.D.3d 208,2007 NY Slip Op 04553,837 N.Y.S.2d 398 |
| Parties | In the Matter of JULIA BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. SARATOGA COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent-Appellant; DIANA BB., Appellant-Respondent. (Proceeding No. 1.) In the Matter of JULIA BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. SARATOGA COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent-Appellant; FRANCIS BB., Appellant-Respondent. (Proceeding No. 2.) |
| Court | New York Supreme Court — Appellate Division |
CREW III, J.P.
Respondents are the biological parents of three children, John (born in 2000), Emily (born in 2001) and Julia (born in 2003). Five days after her birth in late October 2003, Julia was taken to her pediatrician, Sushila Sood, for her first well-baby visit and everything was normal. Sood, a board-certified pediatrician, also had treated John and Emily since their respective births.
A short time later, on November 18, 2003, respondent Diana BB. (hereinafter the mother), returned to Sood with Julia and expressed concern regarding some marks that had appeared on Julia's back and chest. Sood observed "linear purpuric areas"1 on Julia's back and a small bruise2 on her right leg. None of the physicians in Sood's office was able to offer a definitive diagnosis, so Julia was referred to Joan Porter, a specialist in hematology at Albany Medical Center (hereinafter AMC), for additional blood work, which yielded a provisional diagnosis of hemorrhagic vasculitis, an inflammation of the blood vessels. Julia also was observed to have low levels of protein C, which is needed for blood coagulation. The skin discolorations noted at this office visit, together with other small bruises, would come and go in the months that followed.
Julia returned to Sood's office one week later for her one month checkup, at which time fresh purpuric spots were observed. Sood repeated blood work at that time, but no new information was revealed. A few days later, on November 29, 2003, respondents again brought Julia to the pediatrician's office, this time expressing concern about "crackling" noises they heard on the left side of Julia's chest. Julia was seen by one of Sood's partners, who sent her to AMC for X rays, which initially revealed the possibility of a rib fracture. Respondents returned with Julia on December 1, 2003, at which time Sood could hear the crepitus in Julia's left chest wall. Although Sood also observed a small bruise on Julia's left cheek, she did not see any evidence of injury to Julia. Sood requested that another X ray be taken but ultimately was told by radiologists at AMC that this was unnecessary as there was no evidence of a fracture on the November 29, 2003 films. Instead, it was believed that the crepitus was resulting from an overriding of Julia's fourth and fifth ribs.
At this point, Sood referred Julia back to Porter for additional blood work. Based upon a small bruise observed behind Julia's ear and the hemorrhagic areas previously observed, Porter ordered a head CT, which ultimately revealed a superficial linear skull fracture.3 As a result, Julia was admitted to AMC on December 3, 2003, at which time a complete skeletal survey revealed fractures of the ribs, the left forearm and left tibia.4 While there, Julia underwent genetic testing to determine whether she suffered from osteogenesis imperfecta (hereinafter OI), more commonly known as "brittle bone disease." Darius Adams, the geneticist who conducted such testing, ultimately concluded that Julia did not have OI. Adams noted, however, that the fractures and skin condition evidenced by Julia were associated with OI and, further, that the tests commonly used to detect OI did so with only 85% certainty. Julia, who did not sustain any additional fractures for the remainder of the time period covered by this record, was discharged to respondents' care on December 5, 2003.
As a result of Julia's December 3, 2003 admission to AMC, Child Protective Services was notified and an investigation commenced. From December 5, 2003 until March 7, 2004, Julia was seen every day by either Sood, one of her partners, a visiting nurse or one of petitioner's caseworkers. During this period, the episodes of purpura, together with incidents of swelling of Julia's fingers, nose and head and bouts of profuse sweating, continued to come and go.
In the interim, on December 17, 2003, and at respondents' request, Sood referred Julia to James Slavin, an orthopedic surgeon, for an evaluation. After examining Julia, reviewing her previous X rays and speaking with Sood, Slavin ultimately concluded that Julia was the victim of child abuse and, based upon that assessment, petitioner sought emergency removal of Julia on December 18, 2003. Family Court (Hall, J.) denied petitioner's application, finding that respondents were "doing all that [was] reasonable at [that] point with continuing and regular medical monitoring to attempt to address their child's difficulties." Although acknowledging that Julia was suffering from unexplained medical injuries, Family Court stated that it was not persuaded "by [the relevant] testimony that these unexplained injuries are the result of abuse or some sort of inappropriate conditions in the homestead," nor was it persuaded that "an emergency removal would preserve or protect [Julia] in any better fashion than her parents [were] doing." Respondents were directed to continue to cooperate with petitioner and, by all accounts, they did precisely that by, among other things, signing the appropriate releases, taking Julia to Sood's office at least twice a week and permitting the routine home visits by visiting nurses and petitioner's caseworkers.5
A short time later, Julia's paternal grandmother moved in with respondents to assist in caring for Julia and her siblings. The grandmother testified that during the approximately three months she stayed with respondents, Julia's blotchy "grape jelly" marks, often appearing as little red dots, would come and go "out of the blue." During this time period, the grandmother also noted intermittent puffiness or swelling of the joints of Julia's fingers. As to respondents' relationship with Julia, the grandmother testified that Julia was a planned pregnancy, respondents were thrilled with the prospect of another child and they were very concerned about Julia's apparent medical condition and cooperated fully with petitioner. The grandmother also testified at length regarding how careful respondents were in holding and transporting Julia, often carrying her on a pillow, and how the mother had modified Julia's clothing and her diapering procedure in order to avoid undue stress on or unnecessary movement of Julia's limbs.6
On March 3, 2004, Julia appeared to be very congested and was brought to Sood's office where she was diagnosed with an ear infection and placed on amoxicillin. On the evening of March 7, 2004, Julia was fed, given a dose of amoxicillin and put to bed by respondents. A few minutes later, Julia started to cry, could be heard coughing and appeared to be having difficulty breathing.7 Respondents immediately dialed 911 and the responding EMTs placed an oxygen mask on Julia's face and, shortly thereafter, transported Julia to Ellis Hospital. While treating her, the EMTs observed a bright pink secretion around Julia's mouth— apparently consistent with the color of amoxicillin—and that she coughed up a "mucus plug."
Julia initially was treated at Ellis Hospital by Jerald O'Brien, who diagnosed Julia as suffering from pulmonary edema. As soon as Julia was stabilized, she was transferred to the pediatric intensive care unit at AMC, where she was treated by Javier Sanchez. Although O'Brien observed that Julia had some bruising and/or bleeding in the area of her lips and gums, he acknowledged that the mask applied by the EMTs could have caused this. Nonetheless, he advised Sanchez that he believed this to be a "smothering incident." Sanchez concurred with O'Brien, taking the position that Julia had been the victim of child abuse.
The following day, petitioner again sought emergency removal —this time of all three children, and Family Court (Seibert, J.) granted the application as to Julia. One week later, on March 15, 2004, Julia was discharged to Sunnyview Rehabilitation Hospital, where she remained for one month. While at Sunnyview, Julia continued to display intermittent skin discolorations, there was an incident of unexplained blood in her saliva and she had one episode of staring. Her slight facial droop, first noted upon her March 2004 admission to AMC, as well as the periodic decreased mobility of her right arm, persisted as well.
Following her discharge from Sunnyview, Julia was placed in foster care. While in foster care, Julia experienced an unexplained swelling of one of her toes, for which the foster parents sought medical treatment, and additional bruises and skin discolorations were noted from time to time.
Petitioners thereafter commenced the instant proceedings against respondents alleging that respondents severely and/or repeatedly abused Julia and, further, abused and neglected John, Emily and Julia, ultimately seeking to terminate respondents' parental rights as to Julia. A lengthy fact-finding hearing ensued, at the conclusion of which Family Court (Abramson, J.) found that respondents abused and severely abused Julia and, derivatively, neglected John and Emily.
Following the close of proof but prior to the issuance of Family Court's fact-finding...
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