Matthew O. v. Comm'r of Soc. Servs.

• Decision Date: 13 December 2012
• Citation: 956 N.Y.S.2d 31,103 A.D.3d 67,2012 N.Y. Slip Op. 08666
• Parties: In re MATTHEW O., and Others, Kenneth O., et al., Respondents–Appellants, Commissioner of Social Services, Petitioner–Respondent.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 67

956 N.Y.S.2d 31

2012 N.Y. Slip Op. 08666

In re MATTHEW O., and Others, Kenneth O., et al., Respondents–Appellants, Commissioner of Social Services, Petitioner–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 13, 2012.

John C. Klotz, New York, for Kenneth O. and Nancy O., appellants.

Aleza Ross, Central Islip, for Merlene R., appellant.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley and Edward F.X. Hart of counsel), for respondent.

Ellen Winter Mendelson, Upper Nyack, attorney for the children Katherine O. and Victoria O.

PETER TOM, J.P., JAMES M. CATTERSON, ROSALYN H. RICHTER, SHEILA ABDUS–SALAAM, NELSON S. ROMÁN, JJ.

CATTERSON, J.

This appeal arises from a Family Court determination that the respondents, the parents and the nanny of a baby girl, Victoria O., abused the infant and derivatively neglected her siblings. The respondents contend that the court's finding was not supported by a preponderance of the evidence even though it is undisputed that Victoria O. suffered seven distinct fractures of her arms, legs and skull before reaching the age of five months. The respondents argue nevertheless that the preponderance of evidence standard requires evidence that “pinpoints” the time when the injuries occurred, and thus establishes which caregiver was in control of the child at the time. The respondents misconstrue the precedent on which they purport to rely because, of course, any such requirement would automatically immunize entire households where multiple caregivers share responsibility for child care.

The record reflects that on February 16, 2005, five-month-old Victoria O. was taken to the emergency room with a “painfully” swollen left arm. She was diagnosed with a fracture and admitted for treatment. On February 18, 2005, a pediatrician at New York Presbyterian Hospital examined Victoria and reviewed her medical record and Xrays in response to a report of suspected child abuse. The pediatrician discovered that in addition to the fracture for which she was admitted, Victoria had suffered six additional fractures, the oldest of which may have occurred when she was just two months old. The same day, the Administration for Children's Services (hereinafter referred to as “ACS”) filed a petition initiating child abuse and neglect proceedings against Victoria's parents, Kenneth O. and Nancy O., and Merlene R., who worked as a nanny for the family 12 hours a day, 5 days a week, during the relevant period. The petition alleged that Victoria sustained multiple injuries for which the parents provided no explanation. A separate petition was filed alleging abuse and neglect of Victoria's three siblings.¹

The record further reflects that 11 witnesses testified over 42 days at a fact-finding hearing. Among the witnesses was the pediatrician who diagnosed the fractures. Her testimony adduced the following: Victoria suffered seven fractures—two left elbow fractures, a left-wrist fracture, a fractured left tibia and fibula, and two skull fractures—none of which could have been self-inflicted. Although the elbow fractures could not be dated with certainty, the swelling and Victoria's distress when she arrived at the hospital indicated “recent trauma; within the past week.” The pediatrician testified that the elbow “corner bucket handle” fractures could not have been accidental, and are seen predominantly in cases of child abuse. She testified that such fractures are caused by “very violent shaking or tearing,” and that it was unlikely that any of Victoria's siblings could exert the force necessary to cause such fractures. Victoria's left wrist fracture was between two weeks and three months old, and would have initially caused pain and swelling. The fractures to Victoria's left tibia and fibula would also have initially caused significant pain and swelling. While the pediatrician testified that it was impossible to determine precisely when these fractures occurred due to a lack of medical or other documentation, she surmised that all were at least one week old.

Furthermore, according to her testimony, the pediatrician found that Victoria had suffered two skull injuries: a displaced fracture on the side of her skull, which she determined to be less than three months old, and a non-displaced occipital skull fracture. While the pediatrician was unable to testify to the exact date that the second fracture occurred, she testified that cranial swelling present at the time of her examination was either unrelated to the fracture or suggested that the fracture was “very recent.”

The pediatrician also testified that Victoria was underweight and suffered from moderate malnutrition. The pediatrician attributed the infant's loss of appetite to the pain of her successive injuries. The pediatrician opined that given the various stages of healing of the fractures, the lack of any explanation as to how they occurred, and Victoria's very young age, “all of the fractures were inflicted” on the infant. Victoria's parents and Merlene R. also testified at the fact-finding hearing. Merlene R. testified that she worked as the children's nanny for approximately eight years until February 16, 2005. She testified that there were instances when Victoria appeared to be injured which she reported to Nancy O. She testified that both parents were uninvolved with their children, and that Nancy was a very “disengaged” mother.

The parents testified that they were happy and satisfied with Merlene R.'s care of their children until the birth of Victoria, at which time Merlene became distracted and distant with the children. The parents speculated that personal and family problems affected her job performance. They admitted to allowing the other children to carry Victoria when she was three months old. Kenneth O. testified that Merlene appeared to be depressed and was inattentive to Victoria. With regard to Victoria's injuries, the parents claimed that they sought medical attention for Victoria, but that no one diagnosed the fractures. Although Nancy O. testified that “[t]he only explanation that I can come up with is that Merlene did this to the baby,” she conceded that she never saw Merlene behave in a manner likely to have caused Victoria's injuries.

In a 61–page decision dated January 8, 2010, Family Court concluded that “the severity and large number of Victoria's injuries themselves, coupled with her very young age [...] make out a clear case of abuse.” The court further found that although “each [r]espondent denied that they ever injured Victoria and tried to suggest that the others were capable of inflicting these injuries,” none of the testimony specifically “inculpate[d] or exculpate[d]” any of the respondents. The court determined that because all three respondents were responsible for caring for Victoria during the period that the injuries took place, all three respondents had abused Victoria within the meaning of section 1012(e)(ii) of the Family Court Act (hereinafter referred to as “FCA”). The court also entered findings of derivative neglect with regard to Victoria's three siblings.

On appeal, the respondents argue that the Family Court's findings of abuse and derivative neglect were not supported by a preponderance of the evidence. The respondents contend that ACS failed to present expert testimony that Victoria's injuries fit within the statutory definition of abuse. They further argue that even if Victoria was abused, ACS failed to establish precisely when the injuries occurred, and thus cannot show that any of the injuries can be attributed to a particular respondent. Finally, the respondents argue that because there was no evidence indicating that the other three children were abused or neglected, the finding of derivative neglect should be vacated.

For the reasons set forth below, we affirm the decision of Family Court. A child is abused, within the definition of FCA 1012(e)(ii), when a parent or other person legally responsible for the child's care,

“creates or allows to be created a 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.”

Contrary to the respondents' argument, expert testimony is not required in order to determine that the injury sustained constitutes abuse under the statute. See e.g. Matter of Angelique, 215 A.D.2d 318, 319–320, 627 N.Y.S.2d 31, 32 (1st Dept.1995) (medical evidence presented in the hospital records demonstrated that the child sustained an injury that fell within the statutory definition). Evidence of the severity of the injury may be sufficient to meet the statutory definition. See e.g. Matter of Johnny O., 240 A.D.2d 179, 658 N.Y.S.2d 871 (1st Dept.1997) (evidence of frequent brutal beatings supported a finding of abuse); Matter of Robert W., 234 A.D.2d 23, 650 N.Y.S.2d 167 (1st Dept.1996) (child's report of being beaten with a stick embedded with nails and corroborating emergency room records was sufficient to support a finding of abuse); see also e.g. Matter of Christopher P., 30 A.D.3d 307, 308, 818 N.Y.S.2d 50, 51 (1st Dept.2006), lv. denied7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 (2006) (personal observations of a child protective specialist and medical records corroborated the child's description of excessive corporal punishment).

In this case, the testimony of the pediatrician supports a finding of abuse. As Family Court found, the pediatrician's testimony established that “before she reached the age of six months ... [someone inflicted] force sufficient to cause seven different fractures on this baby.” The pediatrician specifically testified that two of the fractures Victoria sustained are the type of injuries that occur in child abuse cases as a result of “very violent shaking...