Opinion
NA-05786-8/06.
Decided March 30, 2009.
Victoria Gibbons, Esq. New York, Law Guardian, Lori Landowne, Esq., New York, Attorney for Respondent Mother.
Matthew Zuntag, Esq., Zuntag Zuntag, New York, Attorney for Respondent Father.
Richard Katz, Esq., New York, Petitioner (Administration for Children Services).
By Petition dated December 12, 2006, Petitioner, the Administration for Children's Services ("ACS"), commenced this child protective proceeding against Respondent Mother, Quandeel S. and Respondent Father, Sohail S., alleging that Respondent Mother committed an act of child abuse against Saim S. (D.O.B. 4/30/06) and an act of derivative abuse or neglect against his older sibling Ayaan S. (D.O.B. 9/14/04). Specifically, ACS alleges that the subject child Saim, then eight months' old, sustained life threatening injuries including loss of consciousness, subdural hematomas and retinal hemorrhaging when Respondent Mother violently shook him on or about December 10, 2006 (the "December Incident"). ACS further alleges that Respondent Mother and Respondent Father medically neglected Saim when they failed to seek medical attention for him after he allegedly fell out of a baby swing onto a hard kitchen floor some eight weeks earlier (the "September Incident"). Last, ACS alleges that, as a result of the above described abuse and/or neglect, the sibling children Ayaan and Paras are similarly in danger of abuse and/or neglect by Respondent Mother and Respondent Father.
Respondent Mother was arrested and charged with Reckless Assault of a Child (Penal Law § 120.02) and Endangering the Welfare of a Child (Penal Law § 260.10(2) in connection with the injuries sustained to Saim in December 2006. No criminal charges were brought against Respondent Father. The matter was presented to a Grand Jury, however, no indictment was issued. Respondent Mother's motion to dismiss this child protective proceeding based on the lack of indictment was denied by this Court in a written decision dated September 26, 2007. During the pendency of this case, Respondent Mother gave birth to another child (Paras) (DOB 10/8/08) who was the subject of a subsequently filed derivative case.
A fact-finding hearing was held on September 26, 2007, October 2, 2007, October 22, 2007, October 30, 2007, November 7, 2007, November 8, 2007, February 1, 2008, June 20, 2008; July 10, 2008 and September 4, 2008. ACS called four witnesses: Ms. Magdalena Leszko, caseworker; Dr. Asaf Gave, trauma surgeon; Detective Richard Ortiz and Dr. Ajl, child advocacy center, as a rebuttal witness. ACS introduced the following documents into evidence: an ORT dated December 11, 2006 (Petitioner's 1); pictures (Petitioner's 2A-2D); medical records (Petitioner's 3); and discharge diagnosis (Petitioner's 4).
Respondent Mother testified on her own behalf and called the following witnesses: (1) Dr. Buonaspina; (2) Dr. Sidlow; (3) Dr. Maytal; (4) Rizwanna Rashid; and (5) Sabrina Sajjad. Respondent Mother introduced the following documents into evidence: pictures (Respondent's A-B); pediatrician records (Respondent's C); pages from hospital records (Respondent's D-F).
Respondent Father testified on his own behalf. Respondent Father introduced photographs into evidence (Respondent Father's 1). The Law Guardian did not call any witnesses. Written summations were received from all parties.
For the reasons set forth below, a finding of abuse is entered against Respondent Mother for causing the life threatening injuries sustained by Saim on or about December 10, 2008. A finding of derivative neglect is entered against Respondent Mother for Saim's siblings Ayaan and Paras. The abuse and neglect allegations are dismissed against Respondent Father as not proven by a fair preponderance of the evidence. The medical neglect cause of action against both Respondents is also dismissed as not proven at trial.
Factual Background
The following constitutes the Findings of Fact and Conclusions of Law after trial.
a. The September Incident .
In September 2006, Respondent Mother was home with Saim (then five months old) and Ayaan (then two years old). Respondent Father was asleep in the bedroom. According to Respondent Mother, she placed Saim in a baby swing in the kitchen but did not secure the safety strap. She left Saim unattended while she made him a bottle. She claims that, while her back was turned, Ayaan went behind the swing and pushed it with such force that Saim was propelled out of the swing and landed face down on the hard tiled floor. According to Respondent Mother, the only injury Saim sustained from this trauma was a "slight bloody nose." There were no witnesses to this event other than Respondent Mother and these two then non-verbal children. Respondent Mother admits that she did not seek medical attention for Saim at that time, nor did she mention this incident to his pediatrician at a subsequent visit.
b. The December Incident .
On December 9, 2006, Respondent Father dropped Respondent Mother, Saim and Ayaan off at his brother in law's home to watch his two children while his brother in law's wife gave birth. Rizwanna, Respondent Mother's sister in law's sister, and her two children were visiting from Canada and also staying at the apartment. In total, Respondent Mother, Rizwanna and seven children ranging in age from seven months to nine years old were present in the apartment that night.
Respondent Mother occupied one of the bedrooms with Saim and Ayaan. Saim slept in the playpen on the floor, while Ayaan shared a bed with Respondent Mother. According to Respondent Mother, Saim went to sleep just before midnight the evening of December 9 and woke up once or twice for a bottle feeding.
Saim woke up at approximately 9:00 a.m. the next morning, December 10, 2006. According to Respondent Mother, she fed him another bottle. He fell asleep in a highchair in the kitchen. She claims she carried Saim into the bedroom, laid him in the playpen and returned to the kitchen. Although she offered no explanation as to why she felt it was necessary, Respondent Mother testified that she went into the bedroom to check on Saim every five minutes. She also directed Sabrina (9) and Harris (8) to check on Saim every two to five minutes allegedly to make sure he did not fall out of the playpen which was located on the floor.
Saim slept for about one hour that morning. When he awakened, Respondent Mother instructed Sabrina (9) to carry him into the living room. Respondent Mother stated on cross examination that ordinarily she does not allow another child to carry Saim because he is a very heavy baby. She offered no explanation as to why she allowed Sabrina to carry Saim that morning.
Some time after 11:00 a.m., Respondent Mother claims she was seated on the living room couch playing with Saim who was laying on his back. She claims that Saim sneezed and she got up from the couch leaving him unattended while she walked across the room to get a tissue. While her back was turned, she alleges Saim rolled off the couch. Respondent Mother states she found Saim laying face up on the decorative area rug that was laid on top of the wall to wall carpeting (the "double matted carpet"). Detective Ortiz, who viewed this scene later, described the area where Saim allegedly landed as "soft and pillow like." The distance between the couch and the floor was approximately 21 inches.
Rizwanna, the only adult present, was not in the room when Saim allegedly rolled off the couch. It is undisputed that, similar to the September Incident, Respondent Mother is the only adult witness able to offer any explanation as to how Saim wound up on the floor. All of the other witnesses called by Respondent Mother testified only that they heard a loud thud sound coming from that room.
Respondent Mother shouted for Rizwanna. Rizwanna hurried in and found Saim in Respondent Mother's arms unresponsive with stiffening limbs. Rizwanna tried to call 911, but her English was too limited. Respondent Mother completed the call. An ambulance responded. Saim was rushed to Staten Island University Hospital where he was admitted into the Pediatric Emergency Unit. His injuries were so severe he had to be intubated en route to the hospital.
c. Saim's Injuries .
By the time Saim reached the emergency room, he was unresponsive and his limbs were stiff. Respondent Mother called Respondent Father and told him to meet her at the emergency room. This was the first time Respondent Father was informed that Saim had been injured.
Dr. Gave is the Associate Director of Trauma and Surgical Intensive Care and Director of Surgical Education at Staten Island University Hospital. Dr. Gave was in charge of Saim's treatment upon his admission to the emergency room and continued to consult on his treatment during Saim's ten day stay in the hospital. After examining Saim and speaking to Respondents, Dr. Gave directed that an ORT Report be called into the State Central Registry of Child Abuse and Maltreatment.
ACS caseworker, Ms. Leszko, responded to the hospital with Detective Ortiz of the Child Advocacy Center. She spoke with Dr. Gave in the Intensive Care Unit who advised her that, in his opinion, Saim's injuries were not consistent with Respondent Mother's claim that Saim fell from the couch. He believed Saim was a victim of Shaken Baby Syndrome because Saim presented with four out of six identified criteria for that condition.
Ms. Leszko and Detective Ortiz then interviewed Dr. Gave and the Respondents. Respondent Mother restated her account that Saim fell off the couch onto the double matted carpet. At that time, she clarified that she did not actually see Saim roll off the couch rather, she heard a thud and when she turned around, she saw him laying face up on the floor. Respondent Mother told Ms. Leszko that she took three steps away to get the tissue box on top of the TV set. At trial, however, she elaborated her explanation of why she got up from the couch and left Saim unattended. Respondent Mother testified that she asked Sabrina to bring her a tissue from the kitchen. Respondent Mother further testified that Sabrina was so engrossed in a television program that she placed the tissue box on top of the TV instead of handing it to her, requiring Respondent Mother to leave the infant unattended.
When asked specifically by Ms. Leszko if Saim had ever fallen before, Respondent Mother answered "no." It was not until Ms. Leszko interviewed Respondent Mother a second time that Respondent Mother disclosed the September Incident and admitted that she sought no medical treatment for Saim after he fell from the swing. During the course of the ACS investigation, Saim's pediatrician confirmed that he had not been told of any alleged fall from the swing.
Respondent Mother was interviewed a third time at the 120th Police Precinct by Ms. Leszko and Detective Ortiz. At that time, Respondent Mother was told that Dr. Gave suspected that Saim was a victim of Shaken Baby Syndrome. Respondent Mother vehemently denied shaking Saim. Respondent Mother agreed to demonstrate what happened which was videotaped by the District Attorney's Office. The re-enactment was not offered as evidence at this trial.
Saim was scheduled to be released from the hospital on December 13, 2006, but his discharge was delayed when he suffered an acute episode of severe vomiting and seizures which required immediate and further medical attention. Ms. Leszko inquired as to Saim's past medical condition and eating habits. Respondent Mother told Ms. Leszko that Saim often vomited after a feeding but that this issue had resolved. Respondent Mother told Ms. Leszko a gastrointestinal work up was done on Saim but only hypothyroidism was found which would not account for those symptoms.
It is not disputed that, while in the hospital for the December 10 incident, Saim was diagnosed with external hydrocephalus. Respondent Mother claims that this condition caused the extent of Saim's injures on December 10. Several months after Saim was released from the hospital and removed from Respondents' care, Saim suffered another bleed in his brain which was asymptomatic.
ACS filed this abuse case in Family Court by Petition dated December 12, 2006. By Order dated December 12, 2006 this Court granted ACS' application to remove Saim and Ayaan from Respondents pending further Court Order. Ms. Leszko credibly testified that the only time Respondent Mother cried or showed any emotion respecting the injuries sustained to Saim, his prognosis or any other aspect of these events was when ACS told her that Ayaan was being removed from her care.
The Applicable Law
Pursuant to Family Court Act § 1046(a)(ii), a prima facie case of child abuse or neglect may be established by evidence of an injury to a child which would ordinarily not occur absent an act or omission of Respondents, and that Respondents were the caretakers of the child at the time the injury occurred. See Matter of Peter R ., 8 AD3d 576 (2d Dept. 2004). Once the Petitioner has offered sufficient evidence to establish that the child has sustained injury, the burden of going forward to rebut the presumption shifts to the parent or the person responsible for the child's care who must then offer a satisfactory explanation as to how the injury occurred. See In Re Aniyah F ., 13 AD3d 529 (2d Dept. 2004). The parents may rest without attempting to rebut the presumption and permit the court to decide the case on the strength of Petitioner's offer of proof or alternatively, they may present evidence which challenges the establishment of the prima facie case. Matter of Phillip M. , 82 NY2d 238, 245 (1993). In an attempt to rebut the presumption, Respondents may argue that: (1) during the time period when the child was injured, the child was not in Respondents' care; (2) the injury or condition could reasonably have occurred accidentally without the acts or omissions of respondent; or (3) the child had the condition which was the basis for the finding of injury. Matter of Phillip M ., 82 NY2d 238, 245 (1993). Lack of direct evidence that mother shook the child and inflicted child's injury does not preclude a finding of abuse in a Shaken Baby Syndrome case. See Matter of Westchester Department of Social Services v. Felicia R ., 215 AD2d 671 (2d Dept. 1995).
The Court finds that ACS has sustained its burden of proving that Saim suffered an injury which would ordinarily not occur absent an act or omission of Respondent Mother, and that Respondent Mother was his caretaker at the time the injury occurred. See Matter of Peter R ., 8 AD3d 576 (2d Dept. 2004). After considering the evidence at trial, this Court credits the testimony of ACS' witnesses' and gives particular weight to the testimony of its expert witnesses, Dr. Gave and Dr. Ajl.
On consent of all parties, Dr. Gave was qualified at trial as an expert in trauma. On December 11, 2006, Dr. Gave was coordinating and overseeing the care of pediatric ICU trauma patients in the Emergency Room at Staten Island University Hospital. He examined Saim on December 12, 2006. A CAT scan revealed that Saim had suffered intra cranial bleeding. There was evidence of two brain bleeds on both sides of his brain: (I) a new bleed (4x3cm) and (ii) an old bleed. The presence of an old bleed increased his suspicion that there was another incident in the past and made him seriously doubt Respondent Mother's statement that Saim had never fallen or suffered any other trauma prior to the December Incident. He testified that it is "highly unusual" for a seven-month-old baby to present with two brain bleeds. Dr. Gave testified that there are six criteria to determine if an injury was caused by Shaken Baby Syndrome: (1) no evidence of trauma or history of trauma consistent with the injury; (2) subdural hematomas; (3) retinal hemorrhaging; (4) history of child abuse to that child or a sibling; (5) physical evidence of abuse; and (6) presence of cardio resuscitation related to the injury. Saim presented with four out of the six criteria. Specifically, Saim had subdural hematomas, retinal hemorrhaging, no evidence of significant trauma, and had to be intubated for twenty four hours. He further stated that there are frequently no external marks, bruises or other indicia of physical abuse evident on babies who are shaken. The true extent of damage caused to a shaken baby may not be totally exhibited for up to three years after the event.
Dr. Gave credibly testified that when he spoke to Respondent Mother about the extent of Saim's injuries, she was "emotionless." She didn't ask him any questions about Saim's condition or indeed, whether he would even survive. He asked Respondent Mother if there was a history of falls and she denied that Saim had ever fallen before. After he told Respondent Mother that Saim's CAT scan showed the presence of an old bleed, she told him for the first time that Saim fell from a baby swing several weeks prior. Dr. Gave credibly testified that, in his expert opinion, Respondent Mother's explanations for the new bleed (allegedly caused by the fall from the couch) and the old bleed (allegedly caused by the fall from the swing) were inconsistent with the nature and extent of the injuries Saim presented with at the hospital that night.
According to Dr. Gave, medical literature indicates that 85% of falls from a short distance, such as the twenty one inch fall from the couch here, result in no brain bleeding at all in small children. Dr. Gave further testified that the mechanism (or explanation) of Saim's injury was "suspicious" because of the damage sustained to Saim's eyes. An opthamologist's examination of Saim's retinas showed multi-lateral bilateral retinal bleeding that extended beyond the posterior pole to the peripheral retina. The retinal bleeds, coupled with the fact that Saim had to be intubated, are consistent with Shaken Baby Syndrome. The Court offers significant weight to Dr. Gave's testimony because he is an expert in trauma, treated Saim within the first twenty-four hours of his admission to the hospital, and conducted the first interview of Respondent Mother with respect to this incident.
Turning to Respondent Mother's case, this Court finds that she has failed to offer any reasonable explanation as to the cause of Saim's injuries which would rebut the presumption of abuse established by ACS at trial. See Matter of Phillip M ., 82 NY2d 238 (1993). Respondent Mother argues that because Saim has external hydrocephalus the alleged fall from the couch caused him to manifest the critical injuries he presented with when rushed to the hospital. ACS did not seriously dispute at trial that Saim has external hydrocephalus and its witness, Dr Ajl, was willing to concede that Saim had this condition. However, this does not end the analysis.
On consent of all parties, Dr. Ajl was qualified as an expert in pediatrics and child abuse. Dr. Ajl is the Medical Director of the Brooklyn Child Advocacy Center. Dr. Ajl's opinion, given within a reasonable degree of medical certainty, is that Saim's injuries were not caused by "non-accidental head injury." Dr. Ajl credibly testified that the symptoms Saim presented with in the hospital (cessation of breathing, rigid limbs, subdural hematomas, and retinal hemorrhages) are consistent with child abuse and are not consistent with external hydrocephalus. He credibly testified that children with external hydrocephalus routinely present with no symptoms at all as is evidenced by the asymptomatic bleed that Saim suffered after he left the hospital. In his expert opinion, the alleged small fall from the couch would not account for Saim's injuries, notwithstanding the external hydrocephalus. The Court offers the most weight to Dr. Ajl's testimony because he testified in one hundred and fifty child abuse cases in his career, including approximately twenty Shaken Baby cases.
With respect to the medical experts called by Respondent Mother, this Court credits their testimony, but finds the cumulative effect of their testimony to be far less persuasive than that proffered by ACS' experts. First, unlike Dr. Gave, none of the doctors called by Respondent Mother examined Saim upon his arrival at the hospital when his injuries presented as the most severe and life threatening. Second, unlike Dr. Gave and Dr. Ajl, none of Respondent Mother's experts were qualified as experts in pediatric trauma or child abuse, respectively. Third, while Respondent Mother makes much of what she claims is a "battle of the experts" in this case, close review of what her physician witnesses actually testified to at trial reveals that there is no great difference of opinion between her expert witnesses and those called by ACS. Of Respondent's three medical experts, two of them conceded that they could not rule out child abuse and could not rule out that Saim's injuries had not been intentionally inflicted (See Buonaspina Tr. 2/1/08 p. 57, Maytal Tr. 2/1/08 p. 90). When Dr. Buonaspina was asked why, if Saim was not the victim of child abuse, his diagnosis was listed as "child abuse" on the final discharge sheet, Dr. Buonaspina said that diagnosis was used for "billing purposes." Indeed, Dr. Sidlow was the only physician called by Respondent Mother who purported to opine, beyond a reasonable degree of medical certainty, that Saim's injuries were accidental and not the result of intentionally inflicted trauma. However, even Dr. Sidlow conceded on cross examination that he could not state what actually caused Saim's injuries. See Sidlow Tr. 9/4/08 p. 37 ("Do I know? No. Do you know? Noone knows"). Fourth, as argued by the Law Guardian, Respondent Mother's experts offered no explanation as to why, if the December injuries were caused by external hydrocephalus, this same condition did not cause Saim to present with severe and life threatening injuries in September when he was propelled face down onto a hard tiled floor, a more significant trauma. As to that incident, Respondent Mother claims that the nose bleed Saim sustained after that accident was so insignificant she sought no medical treatment for him and didn't even mention it to his doctor at a subsequent visit. As to Respondent Mother's fact witnesses, after observing their demeanor, and considering their testimony, this Court finds their testimony not credible. Respondent Mother presented to this Court as highly scripted, rehearsed and less than candid when providing responses potentially not supportive of her version of the events. Moreover, the inconsistencies in Respondent Mother's testimony coupled with her initial failure to disclose the September incident, raise doubt as to the reliability of her account. See Matter of Peter R ., 8 AD3d 576 (2d Dept. 2004). Rizwanna, the only adult fact witness, appeared similarly rehearsed and not believable on the critical subject of what happened to Saim on December 10. The child witness, Sabrina, presented to this Court as coached with respect to what to tell this Court about this incident.
Respondents claim that a resident doctor Dr. Kumar believed Saim's injuries were not intentionally inflicted. Dr. Kumar was not called as a trial witness by Respondent's or any other party. Further, Dr. Gave credibly testified that, as Director of Trauma, it was his responsibility based on his training and experience to diagnose Saim and not the responsibility of a resident doctor. Dr. Gave was also troubled by Dr. Kumar's involvement in this case because it was reported that Respondents' family "was trying to obstruct the investigation of this case" by influencing Dr. Kumar. (See Gave Tr. 10/30/07 p. 75).
The facts in Peter R ., are inexplicably similar to this case. There, as here, the subject child suffered a fall onto a hard tile floor allegedly caused by a younger sibling and a fall from a couch onto a carpeted floor. The failure of Family Court to make an abuse finding in that case was reversed by the Appellate Division. See Matter of Peter R ., 8 AD3d 576 (2d Dept. 2004).
This Court further disagrees with Respondent Mother's contention that absent direct evidence that she shook Saim, a finding is precluded. See Matter of Westchester Department of Social Services v. Felicia R ., 215 AD2d 671 (2d Dept. 1995). Acts of severe child abuse often occur in the absence of witnesses. In this regard, none of Respondent Mother's witnesses actually saw Saim fall off of the couch on December 10. Rather, Respondent Mother is the only witness able to offer any explanation as to what caused this child's injuries either in December when he allegedly fell off the couch or in September when he allegedly fell from the swing.
For all of these reasons, and after observing all of these witnesses testify at this lengthy trial, this Court finds that ACS has proven, by a fair preponderance of the evidence, that Respondent Mother committed an act of abuse against Saim when, on or about December 10, 2006, she violently shook this child causing him to sustain severe injuries.
Respondent Father.
No finding of abuse or neglect is made against Respondent Father as there is no dispute that he was not present at the time of the December Incident, and no evidence was presented by ACS to establish that he should have anticipated the act of abuse committed by Respondent Mother. See In Re Shaun B ., 55 AD3d 301 (1st Dept. 2008).
Medical Neglect.
The allegations of medical neglect against both Respondents based on the failure to seek medical attention for Saim after the September Incident is dismissed. Dr. Ajl credibly testified that a parent would not realize that medical attention was necessary where, as here, the baby is alleged to have suffered only a slight nose bleed and immediately resumed his regular activities. No other cause of action was asserted by ACS against Respondent Mother in connection with the September Incident and therefore, no further findings are made with respect thereto.
Derivative Findings.
The Court finds that the finding of abuse of Saim against Respondent Mother is sufficient to establish that Ayaan and Paras are derivatively neglected children. See In Re Peter R ., 8 AD3d 576 (2d Dept. 2004); Matter of C. Children , 207 AD2d 888 (2d Dept. 1994); See Family Court Act § 1046 [a][I].