Vincent M., Matter of

• Citation: 597 N.Y.S.2d 309,193 A.D.2d 398
• Parties: In the Matter of VINCENT M. and Viondra M. Children under eighteen years of age alleged to be abused and neglected by Sandra M. and Vincent C., Respondents-Respondents.
• Decision Date: 06 May 1993
• Court: New York Supreme Court Appellate Division

Page 309

597 N.Y.S.2d 309

193 A.D.2d 398

In the Matter of VINCENT M. and Viondra M. Children under eighteen years of age alleged to be abused and neglected by Sandra M. and Vincent C., Respondents-Respondents.

Supreme Court, Appellate Division,

First Department.

May 6, 1993.

Before MILONAS, J.P., and ELLERIN, ASCH, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Family Court, New York County (Michael Gage, J.), entered November 5, 1992, which dismissed the abuse and neglect petitions against respondent Sandra M. and the abuse petition against respondent Vincent C., and entered a finding of neglect against respondent Vincent C. as to both children, unanimously modified, on the law, the facts and in the exercise of discretion, to reverse the dismissal of the neglect petition against respondent Sandra M. and to enter a finding of neglect against respondent Sandra M. as to both children and to reverse the dismissal of the abuse petition against respondent Vincent C. as to Vincent M. and to enter a finding of abuse against respondent Vincent C. as to Vincent M., and otherwise affirmed, without costs and the matter remanded for a dispositional hearing and, pending further order of the Family Court, the children are released to the custody of Sandra M.

On April 13, 1992, three month old Vincent M. was found by his mother, respondent Sandra M., to have an injured leg. Sandra M. and respondent Vincent C., the child's father, immediately took the baby to St. Luke's Hospital, where it was discovered that the child's tibia was fractured. An investigation was commenced which resulted in the within petition charging respondents with abuse and neglect of both Vincent M. and his sister, Viondra.

At the fact finding hearing, caseworker Sheila Davis testified that she first interviewed respondents at their home on April 15, 1992, at which time they informed her that Vincent C. had informed Sandra M. at the hospital that, earlier in the day on which the baby's injury had been discovered, he had been playing with the child and had accidentally fallen on him. Sandra M. informed Ms. Davis that she had not told the hospital personnel how the incident had occurred because she did not find out about it until after the child was admitted.

After this interview, further investigation was undertaken by the hospital which revealed that the child had two healed fractures, one of the rib and one of the skull. Two days later, after learning of the infant's healed fractures, Ms. Davis interviewed respondents again, at which time she informed them that the child had prior injuries and asked them if they could explain them. They stated that they had no specific explanation for the rib fracture but that maybe the child had fallen off the bed. The only explanation they proffered for his fractured skull was the possibility that he had knocked his head against a hair dryer which they had placed in his crib hoping that its noise would stop his crying. Sandra M. also mentioned that she did not know how the child had been hurt because she had been ill after his birth and had not been caring for him at that time. She also stated that she felt that Vincent C. was rough in his treatment of Vincent M. and that she had told him not to play so roughly with the child. Vincent C. admitted that he "play[ed] rough" with the child, including holding him high in the air and shaking him.

Dr. Elizabeth Watkins testified that the two healed fractures had occurred four to six weeks before Vincent M.'s hospitalization. She felt that a fairly strong force directly over the area of the single broken rib would have been necessary to cause the rib fracture and that the child would have had to have fallen from a "significant" height in order to sustain the skull fracture and that a fall from a bed or chair would not normally result in such an injury. She doubted that tossing the child into the air and catching him would have caused the rib fracture, though it was conceivable that, if the child had been tossed and had then started to fall he could have been grabbed with such force as to cause the injury. As to the leg fracture, she opined that it could have been caused by an accident as was described by the parents. She also noted that an infant's bones are more difficult to break than an adult's because of their flexibility. Tests had revealed that Vincent M. did not suffer from a condition which could have caused his bones to have broken more easily than the average infant's.

After her interview with the parents, Ms. Davis took their then 15 month old daughter, Viondra, for a physical examination, which showed that she was healthy and revealed no evidence of physical abuse.

Vincent C. testified at the hearing that, on the day the baby's leg was broken he had been playing with the baby and was holding him in the air. They were both laughing. However, Vincent C., who was walking across the room, then tripped on the coffee table. The baby slid down his leg and he fell with his knee landing on the baby's leg. He did not immediately tell Sandra M. about the incident because she was very protective of the children and he checked the child over and did not believe that he was injured. He also noted that Sandra M. had repeatedly told him not to play with the baby as roughly as he was in the habit of doing. For example, he would hold the baby "tightly because [he] wanted to have a good grip on him" and would bounce him up and down on his knee or would toss him up in the air and catch him. He was more "aggressive" with Vincent M. than with Viondra because Vincent M. was a boy. However, he also mentioned that Vincent M. cried a great deal and noted that the baby "had been crying from the day he was born."

Once, while he was caring for the baby in February, 1992, Vincent C. had left him on the bed, lying on his back and propped up by and surrounded by pillows, while he left the room to attend to Viondra. While he was gone the baby had fallen to the floor, which was not carpeted. He did not know whether this fall had caused Vincent M.'s fractured rib and skull, but he had no other explanations other than his habit of gripping the baby tightly.

Sandra M. testified that Vincent C. first told her he had fallen on the baby while they were at the hospital waiting for x-rays to be taken. Vincent C. had told her that while he was dressing the baby, the baby had awakened and "started to cry as usual." Vincent C. was holding the baby in the air and walking when he tripped on the coffee table. The baby slid down his arm and he fell with his knee landing on the baby's leg. Sandra M. also testified that Vincent C. was in the habit of playing too roughly with Vincent M., though she did not feel that the baby could be hurt by it. The only description of this rough play that she was able to give were that Vincent C. would toss the child a short distance into the air or would bounce him on his knee. Sandra M. offered no explanation for the child's...