S., In re

• Decision Date: 05 April 1971
• Citation: 66 Misc.2d 683,322 N.Y.S.2d 170
• Parties: In the Matter of Fred S. * Terry S. * Mary S. * Children under sixteen years of age alleged to be abused and neglected.
• Court: New York Family Court

Page 170

322 N.Y.S.2d 170

66 Misc.2d 683

In the Matter of Fred S. ^* Terry S. * Mary S * Children under sixteen years of age alleged to be abused and neglected.

Family Court, New York City, Richmond County.

April 5, 1971.

J. Lee Rankin, Corp. Counsel, Karl D. Zukerman, Sp. Asst. Corp. Counsel, New York City, by Frank J. Carabetta, Brooklyn, of counsel for petitioner.

Charles Schinitsky, Legal Aid Society, Brooklyn, N.Y., by William Scheffel, St. George, of counsel, for Children.

Daniel D. Leddy, Jr., Staten Island, N.Y., for respondent Parents.

DECISION

RALPH E. CORY, Judge:

The instant cases arose by the filing of a child abuse petition in Kings County Family Court. After a preliminary hearing respondent's attorney's application to transfer the case to Richmond County to be heard along with the pending neglect case was granted. The proceeding was transferred to Richmond County to be heard together but not consolidated, at the discretion of the Judge.

After a fact-finding hearing the court found that child abuse was not established and the charges were reduced to neglect as to the child Terry. In the dispositional hearing, Terry was remanded to the Angel Guardian Home. The remand was subsequently vacated and Terry was ordered returned to the respondents, the child's parents. Both parents are recent immigrants, the mother a Yugoslavian native and the father an Albanian native. The parents were to receive instruction in the care of children, proper health and safety and the prevention of injuries. They were also to obtain cribs, rather than permitting their children to sleep on the floor and mats. Finally, after many adjournments in which the respondents failed to appear, a warrant was executed and the parents appeared in court with Fred. The child abuse petition was amended to add Fred and he was remanded to the Commissioner of Social Services. Terry was hospitalized for the second time for dehydration, bruises and bites and other serious injuries. Both respondents were then remanded to Bellevue Hospital for observation and complete medical and psychiatric examinations because of long hysterical outbursts in court where they were physically removed with great difficulty. Family Court Act, Section 251. The children were on continued remand away from their home and Fred was deleted from the original petition on consent of the corporation counsel, law guardian and the attorney for the respondents. Before the conclusion of the fact-finding hearing on the instant petition, a new infant baby girl, Mary, was born to the respondent mother on March 20, 1971.

A new petition was drawn to have Mary declared neglected in that she was in danger of being found neglected since there is presently before this Court a petition to have Terry declared abused and Fred to be neglected.

After listening to oral argument by the corporation counsel who demanded that the new infant child be removed from the parental home on the grounds there would be substantial probability that he child will be found to be abused or neglected under Article 10, Family Court Act (Section 1028(b) and That she was in grave imminent danger to her life and limb, and arguments in opposition by the attorney for the respondents that such drastic action without one scintilla of evidence that a baby four days old had been neglected would be a serious violation of due process, this Court temporarily remanded the infant to the Commissioner of Social Services Angel Guardian Home and ordered a hearing on this issue.

There is thus before this Court for decision two petitions in which a fact-finding hearing has been held. Even though the original neglect petition is not before this Court for decision, it is nevertheless before the court for an adjourned dispositional hearing in view of the subsequent injuries to Terry, as well as the original neglect petition of Terry, since the two petitions are inseparable and cannot be severed by virtue of the fact that both petitions involve the Same child.

The attorney for the respondent objected to the introduction into evidence of the previous child abuse case, reduced to neglect as severely prejudicial to his clients and a severe violation of due process and their constitutional rights. This argument is without legal merit.

Article 10 of the Family Court Act (Child Protective Proceedings) is designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well being. It is designed to provide a due process of law for determining when the state through its Family Court, may intervene against the wishes of the parent on behalf of a child so that his needs are properly met. Family Court Act, Section 1011.

The instant petitions involve a badly battered child, medical and hospital records of which are indisputable, involved in two separate instances of serious injuries about a year and three months apart. The child is only three years old. Due process of law, under the facts and circumstances of these cases, would require a careful scrutiny of the medical history and records of the child as admissible evidence to determine if a pattern of child abuse or neglect is involved in the two separate instances. Due process is required Not only for the parent respondents but necessarily and more importantly for the health, safeth and welfare of defenseless children where the court under its role of parens partriae must be microscopic not casual in its ascertainment of facts based on credible evidence.

The record is crystal clear and unchallenged that the respondent parents disobeyed at least four orders of this Court on the original petition to produce the child Terry in court for progress reports as to her health, safety and welfare. The failed to appear and were produced in court on November 30, 1970 only by execution of a warrant, previously stayed, and then only after the Second hospitalization of the same child Terry for serious injuries on November 6, 1970.

The Family Court not only has exclusive original jurisdiction over Child Protective Proceedings under Article 10 of the Family Court Act, but also of necessity has Continuing jurisdictions for the health safety and welfare of children. As a matter of record, the dispositional hearing on the original petition (regarding child Terry) had never terminated and remains open. Orders of this Court on this disposition were violated with impunity (not once but four times) leading directly to the new child abuse petition. While technically and legally, two petitions are before the court on the seriously injured child Terry, one for fact-finding, the other for disposition, they are not separate and distinct since the Same child is involved. This is the link and continuity that gives the court Continuing jurisdiction under the Act (Family Court Act, Article 10). Accordingly, the medical and hospital records of the first petition are necessarily includable evidence in the fact-finding hearing on the instant child abuse petition. As part of the overall picture, the medical histories and hospital records of both must be combined for the proper ultimate dispositional hearing.

Furthermore, the records of the first admission of the child Terry to the hospital are admissible under Section 1038 and Section 1046(a)(iv) of the Family Court Act. Section 1038 states that '(e)ach hospital * * * having custody of Any records, photographs or other evidence relating to abuse or neglect, upon the subpoena of the court, corporation counsel * * * counsel for the child * * * shall * * * send such records, photographs or evidence to the court for use in Any proceeding relating to Abuse or Neglect under this article * * *.' (emphasis supplied) Section 1046(a)(iv) Family Court Act states that 'any Writing, record or photograph * * * relating to a child in an abuse or neglect proceeding of Any hospital * * * shall be admissible in evidence in proof of that condition * * * if the judge finds that it was made in the regular course of business of any hospital * * * (proper certification thereof) shall be prima facie evidence of the facts contained in such certification.' (emphasis supplied)

Also admissible into evidence is any report filed pursuant to Section 383--a Social Services Law, Family Court Act, Section 1046(a)(v). These latter forms contain history of parents and other necessary information as relayed by parents and is admissible evidence as to how the injuries occurred. Prior hospital records may be introduced (6 years prior) involving same party. Matter of Three John Children (1969), 61 Misc.2d 347, 306 N.Y.S.2d 797. In the instant case, the hospital records covered a period of one year and three months prior to the commencement of this action where the child Terry suffered several fractured ribs.

Entries in hospital records qualify also for admission under The exception to the hearsay rule only if made in the regular course of the hospital's work and for the purpose of assisting in procedures relating to its activities (e.g., diagnosis, prognosis and treatment) or in some way assisting the undertaking of the medical or surgical aspects of the patient's hospitalization. People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490; Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417; People v. Roth, 11 N.Y.2d 80, 226 N.Y.S.2d 421, 181 N.E.2d 440; Spoar v. Fudjack, 24 A.D.2d 731, 263 N.Y.S.2d 340; DiRusso v. Kravitz, 27 A.D.2d 927, 282 N.Y.S.2d 159, aff'd 21 N.Y.2d 1008, 290 N.Y.S.2d 928, 238 N.E.2d 329.

Two separate hospitalizations for serious injuries to the same child, about one and one-quarter years apart, make it imperative that the hospital records of the first instance are necessary for the diagnosis, prognosis and treatment of a child of such tender years upon her second hospitalization since they will assist in the understanding of the medical or surgical aspects of the child's current treatment and...