Opinion
Docket No. NA-XXXXX-X/22
11-14-2022
In the MATTER OF NERIAH N., Jesiah N., Milani N., Amani N., Children Under Eighteen Years of Age Alleged to be Abused by Altrovise W., Anthony N., Respondents.
New York City Administration for Children's Services, Bronx (Stephanie Oates of counsel), for New York City Administration for Children's Services, petitioner. The Bronx Defenders, Family Defense Practice, Bronx (Jessica Horan-Block, Jonathan Howe and Sean Egan of counsel), for Altrovise W., respondent. Neighborhood Defender Services, Family Defense Practice, Bronx Conflict Office, New York City (Piyali Basak and Zainab Akbar of counsel), for Anthony N., respondent. Legal Aid Society, Juvenile Rights Division, Bronx (Tracy McNeil of counsel), Attorney for the Children.
New York City Administration for Children's Services, Bronx (Stephanie Oates of counsel), for New York City Administration for Children's Services, petitioner.
The Bronx Defenders, Family Defense Practice, Bronx (Jessica Horan-Block, Jonathan Howe and Sean Egan of counsel), for Altrovise W., respondent.
Neighborhood Defender Services, Family Defense Practice, Bronx Conflict Office, New York City (Piyali Basak and Zainab Akbar of counsel), for Anthony N., respondent.
Legal Aid Society, Juvenile Rights Division, Bronx (Tracy McNeil of counsel), Attorney for the Children.
Robert Hettleman, J. I. PROCEDURAL HISTORY
On July 15, 2022, ACS filed this abuse petition, alleging that the parents, Anthony N. and Altrovise W., abused the child Milani by inflicting or allowing the infliction of multiple injuries and derivatively abused Milani's twin, Amani, and their other children, Neriah and Jesiah. Specifically, ACS alleged that Milani was brought to the hospital on July 11, 2022 and diagnosed with a laceration to the face, six rib fractures that were in different stages of healing, and a fracture to the ileac crest. ACS described that the parents provided a reasonable explanation for the facial laceration (a fall from the bed onto an object) but did not provide any explanation for the fractures.
The oldest child, Jesiah, is the biological child of Mr. N. and a different mother. Jesiah usually lived with his own mother but frequently spent time in the N./W. household.
The petition also alleged an injury of bleeding to the uterus, but later ACS withdrew this fact after further medical investigation.
At intake, I remanded Neriah, Amani and Milani into foster care, and I released Jesiah to his mother (a non-respondent in this case). The parents immediately sought the return of the children, pursuant to Family Court Act § 1028. The hearing began the same day, and it continued July 22, July 27, August 4, August 5, August 23, October 19, October 28, and November 2. Notably, all counsel consented to the adjournments between dates in order to continue the medical investigation and to monitor visitation and the parents’ progress with services and supervision. My Court Attorney held conferences with all parties on August 12, September 7, and October 5. On November 14, after an additional update from all parties, counsel made final arguments, and I issued a decision on the record in Court. This written opinion memorializes that decision. II. THE EVIDENCE AT THE HEARING
At the hearing, ACS called the following witnesses: (1) CPS Banson and (2) Dr. Mandy O'Hara. The respondents called (1) Ms. Altrovise W.; (2) Mr. Anthony N.; and (3) Dr. Katherine Grimm as witnesses. In addition, throughout the extended hearing, the Court and counsel asked various questions of both parents; a close family friend, Ms. Crosby (who became the foster parent of the three remanded children); and CPS Banson.
At the hearing, ACS introduced into evidence the following Petitioner's Exhibits ("Pet's Ex."):
Pet's 1: The abuse petition
Pet's 2: A picture of Milani's facial injury
Pet's 3: Medical notes/records from Montefiore Hospital from July 21 and 28, 2022
Pet's 4: A letter from Dr. O'Hara, dated 9/7/22
At the hearing, Ms. Altrovise W. introduced into evidence the following Respondent Mother's Exhibits ("RM's Ex."):
The exhibits were also introduced on behalf of Mr. N.
RM's A1-A9: Pictures of the family before the filing of the petition
RM's B: Ms. Altrovise W.’s medical records from St. Barnabas Hospital
RM's C: Milani's medical records from St. Barnabas Hospital
RM's D: Milani's medical records from Montefiore Hospital
RM's E: A letter from Dr. Meryl Grimaldi of St. Barnabas Hospital, dated 8/1/22
RM's F: A letter from Northside Center, dated 6/27/22
RM's G: ACS investigative notes from 7/11/22
RM's H: A letter from Dr. Vanessa Louis, dated 8/3/22
RM's I: Medical notes from Dr. Duberstein and Dr. Campbell, dated 5/16/22
RM's J: Letters from Dr. Ramlall, dated 8/2/22
RM's K: A letter from Dr. Campbell, dated 8/19/22
RM's L: The curriculum vitae of Dr. Grimm
III. CREDIBIILTY AND FACTUAL FINDINGS
The following is not an attempt to summarize all of the evidence presented at the hearing. Most of the facts were undisputed, including that (1) the parents brought Milani in for treatment on July 11 for the facial injury; (2) there were no other injuries observed to any of the children at any time in the past or during the course of the case; (3) there is no prior history of ACS involvement for this family; and (4) that, as described below, the parents were always observed to be involved, cooperative, appropriate, loving, and safe with the children, both in the past and during the course of the case. The central disputed issue at the hearing was the medical evidence about the nature and causation of Milani's injuries. So here I will primarily address that evidence.
A. The Letters from Doctors Grimaldi, Louis, and Ramlall
I give very little weight to the written testimonials from Dr. Grimaldi, Dr. Louis, and Dr. Ramlall. None of them appear to have reviewed or assessed all of the facts and records in the case, and each of them demonstrate an obvious bias towards the parents. This bias may be a human and understandable one, given their interactions and observations with the parents and their children, but it compromises the validity of their opinion that Ms. Altrovise W. and Mr. Anthony N. could not have caused the injuries to Milani. Indeed, none of these experienced medical providers even attempted to acknowledge — as Dr. Campbell did in her letter — that history and experience demonstrate that even wonderful and caring people are capable of harming their own children.
For example, Dr. Grimaldi wrote "I can say with certainty that Ms. W. would never endanger her children." Dr. Louis wrote that the allegations in this case "do not fit these parents at all."
In any event, I do credit the portion of their letters — since this was corroborated by all of the other evidence and not disputed at the hearing — that these doctors have regularly observed both parents being involved in all prenatal and postnatal care for their children, attentive to their family's needs, joyous at having the twins as new additions to their family, and responsive to the children's medical and daily needs. In addition, I credit that these doctors saw no obvious signs of trauma, injuries, or reasons for concern outside of the injuries presenting in this case.
B. Dr. Campbell and Dr. Grimm
Although Dr. Campbell's opinions were submitted in a letter and thus not subject to cross-examination, I find her letter and opinions to be thoughtful, thorough, and credible. She described in detail her experience in pediatrics and the articles and information upon which she relied in giving her opinions, most of which were expounded upon further in the testimony of Dr. Grimm and Dr. O'Hara. Dr. Campbell described a number of factors that might make Milani more vulnerable to bone fractures, including her traumatic birth, her low weight at birth and postnatally, the hypothermic treatment given to Milani in the NICU, the administration of phenobarbital to Milani for several weeks to combat seizures, the child's lack of movement due to being in the NICU, and Ms. Altrovise W.’s genetic and prenatal history that included a vitamin-D deficiency.
Dr. Grimm echoed and explained these opinions and factors in her letter and testimony. Her overall opinion was that the rib fractures were "most likely" accidental and unintentional. She described her considerable experience in dealing with child abuse investigations of infants, reviewing literature and studies on these topics, and Milani's specific situation. Dr. Grimm concurred with Dr. Campbell in opining that Milani was more susceptible to fractures than an ordinary child, given the factors described above. Dr. Grimm testified that with a vulnerable child like this, even normal handling by parents or caretakers could cause these types of rib fractures. She suggested that it is rare to perform x-rays or scans on infants, but if such testing were done, she would expect that many children have bone fractures resulting from non-intentional trauma. And because such injuries are internal and because infants do not express or process pain in the same way as older people — i.e. , they cannot speak or direct others to the source of their pain or discomfort, and infants cry or are fussy due to a variety of needs and conditions — parents will not be aware that such injuries have occurred. Dr. Grimm also testified that there are documented instances of fractures in infants who are in the NICU, demonstrating that even professional handling in a hospital can still result in injuries. At the same time, Dr. Grimm acknowledged that these areas of science and medicine are still developing.
In addition, Dr. Grimm also described two concerns that are frequently raised in cases of fractures in infants: (1) that seeing and diagnosing fractures from x-rays and scans have an element of "art" to them, rather than there always being a clear and scientific "yes" or "no"; and (2) dating or assessing the extent of healing in fractures is an imprecise endeavor. Dr. Grimm also reviewed a number of demographic and other factors that are not present in this case — e.g. , single-parent homes, poverty, a history of domestic violence, etc. — and she testified that this family therefore does not fall into a high-risk category for this type of child abuse.
Notably, though, most of Dr. Grimm's testimony focused on the rib fractures. When asked about the fracture to Milani's ileac crest, Dr. Grimm did not consider it as much of a factor in her opinion for two reasons. First, she stated that she would want a second opinion as to whether or not this fracture even existed (given the above-described nature of the uncertainty of diagnosing fractures in infants), and second, she did not believe there was any correlation in the literature or her experience between child abuse and fractures of the ileac crest.
Overall, I found both Dr. Grimm and Dr. Campbell to be credible in their earnest belief and testimony about these factors. They are each experienced and knowledgeable pediatricians, and Dr. Grimm is regularly qualified as an expert in Child Abuse Pediatrics in Criminal and Family Courts and also helps train ACS workers and lawyers in this field. Both doctors supported their opinions with literature and experiential explanations, yet at the same time they conceded that they cannot know exactly what happened in this particular case and that their assessment of studies and risk factors cannot conclusively prove whether or not Milani's injuries were inflicted or accidental.
C. Dr. O'Hara
Likewise, I found Dr. O'Hara to be credible. She, too, is an experienced expert in this field who is regularly qualified as an expert in child abuse pediatrics. Her opinions were supported by the facts of the case, the literature, and common sense. Indeed, even Dr. Grimm testified that Dr. O'Hara’s letter was "well-executed and thought out." Before testifying, Dr. O'Hara reviewed all of the medical records and letters, as well as the testimony of Dr. Grimm. Understandably, she testified that the constellation of issues presented in this case raise significant concerns about the parents’ care for the children. These included the facial laceration from "an unwitnessed fall," the multiple rib fractures, the ileac crest fracture, and Milani having choked on a grape during an unsupervised visit in recent weeks. Dr. O'Hara opined that at least some of the rib fractures were at different stages of healing, suggesting trauma occurring on more than one occasion. Further, she described that she reviewed the radiology reports with two attending radiologists in order to verify the nature and stages of healing of the rib fractures as well as the existence of the ileac crest fracture. In her review of the records, Dr. O'Hara found that there was no forceful CPR or resuscitation performed on Milani, and an x-ray of the child within a week of her birth revealed no fractures of any kind.
Of course, each side interpreted these findings and the literature differently, based on their experience and point-of-view. Dr. Grimm questioned whether or not the original x-ray of Milani was done in a way that would likely reveal these fractures at all, while Dr. O'Hara was confident that those x-rays were sufficient. Whereas Doctors Campbell and Grimm cited studies showing that taking phenobarbital can have a negative effect on a patient's bone health, Dr. O'Hara noted that the subjects in those studies dealt with non-infants who had other medical issues and had been taking the drug for far longer than five months. Dr. O'Hara described that in studies of thousands of infants and toddlers — including many who were born premature, had low weight, and had been in the NICU — less than 2% were found to have fractures, countering Dr. Grimm's suggestion that children's bones fracture regularly due to normal handling. Of course, Doctors Campbell and Grimm, along with the parents’ lawyers, noted that even if that percentage of fractures is small, it still demonstrates that fractures do occur in these situations.
The doctors disagreed about whether Milani's prolonged stay in the NICU, the way she received nutrition, and her low birth and post-natal weight may have contributed to her vulnerability to these fractures. Doctors Campbell and Grimm opined that these factors all make Milani more susceptible to injury. On the other hand, Dr. O'Hara testified that movement levels for a child in the NICU are not significantly different from those of an ordinary newborn at home who is likely swaddled for much of the time and sleeps a large portion of the day. She stated that although Milani fed through an IV for a short period of time, her other feeding was more akin to that of a non-fragile child, in that tube-feeding still engaged Milani's stomach and digestive system. And Dr. O'Hara noted that while Milani's weight was on the low end of the spectrum, it was not so severe as to have an effect on her bone health. And Dr. O'Hara described that testing of Milani revealed no vitamin-D deficiency or other signs of lack of bone health. Also of note, none of the doctors had much to say conclusively about the significance of the ileac crest fracture, other than Dr. O'Hara’s recognition of common sense — this is another unexplained injury Milani apparently sustained while in the care of her parents.
Finally, Dr. O'Hara raised one additional global concern: the unwitnessed fall and Milani choking on a grape, both occurring while in the parents’ care, may suggest that the parents are not attentive enough to Milani. Of course, infants swallowing objects, falling from beds, and other handling issues are a normal part of the parenting of infants, yet adding them up understandably raises the level of concern.
The debate over these factors in relation to Milani was thoughtful and spirited, and these issues are part of the ongoing examination and learning in the field about fractures and injuries to infants. At this time, none of the doctors or workers (nor lawyers nor I) know exactly what caused each of Milani's injuries. But the testimony at least raises important questions about whether these injuries were inflicted.
D. Ms. Altrovise W.
I found Ms. Altrovise W. to be a credible witness. She always answered questions in a straight-forward manner, she was detailed and sincere, and she was corroborated by the other evidence in the case. She detailed her love and care for her children, the traumatic birth of Milani, and the voluminous medical appointments, therapies, and other services that Milani received after being born.
Notably, she discussed what led them to seek medical treatment for Milani on July 11. Ms. Altrovise W. was not home at the time, but she received a call from Mr. Anthony N., who said that Milani had a cut on her face. Ms. Altrovise W. told Mr. Anthony N. to call 911. At some point later, Ms. Altrovise W. spoke to the child Jesiah, who described that he was home at the time, heard Mr. Anthony N. cry out for help, and ran into the room to see Milani with a cut on her face. Jesiah observed Mr. Anthony N. asking for help, applying pressure to the wound, and calling 911. Ms. Altrovise W. denied that she or Mr. Anthony N. ever used physical punishment as discipline. She described that both parents were employed and that the children were otherwise well and healthy. She was fully credible in describing that she wanted to know exactly how Milani's injuries occurred and that she would follow all court orders and conditions of visitation and supervision.
E. Mr. Anthony N.
I found Mr. Anthony N. to be credible as well. He answered questions directly, demonstrated knowledge and caring about the children and their needs, and was corroborated by the other evidence in the case.
He, too, denied that either parent used corporal punishment on the children. He credibly described the family's routines and care for each other, and he stated that he had never felt overwhelmed by caring for the children. However, he described that during the period of time when Milani was at home — from her early April release from the NICU through July 11 — the family had significant stressors. He was working double shifts in order to save money for a few things, the children were home, and Milani needed considerable follow-up medical care.
He also testified that he would continue to follow all court orders and conditions of supervision, as well as engage in any services requested. He stated that since the case began, he has been and will be even more cautious about their care of Milani, including making sure she slept in a bassinet and face-up and following other recommendations.
Additionally, he noted that he had stopped working and was receiving treatment from being in a car accident. He described that he and Ms. Altrovise W. loved seeing their children at visits, but it took them approximately two hours to get Ms. Crosby's home in Brooklyn. He described family support here in the Bronx, including his mother and his twin brother.
F. Other Relevant Facts
Since this is a § 1028 hearing, relevant factors about the risk of harm to the children include the parents’ engagement with ACS supervision, their engagement in services tailored to reduce the risk of harm, and the nature and quality of their interaction and visitation with the children.
As noted above, all parties conceded that since ACS filed this case in July, the parents have completed every service recommended to them by ACS, doctors, and the children's providers. They have participated in additional interviews and testing to investigate Milani's injuries, and they have appeared in court, answered questions, and followed all of my Orders and ACS’ recommendations and conditions of supervision. By all accounts — including CPS Banson's regular observations and my own — the parents have conducted themselves with grace, even while enduring their own injuries lingering from a vehicle accident and the rigors and stresses of this case.
When the case was arraigned before me on July 18, on the consent of all parties including ACS, I allowed the parents to visit all of the children under the supervision of ACS or any approved adult resource. Throughout this case, they visited their children regularly for long periods of time each day. All of their interactions were observed to be appropriate and loving.
On August 5, based upon the evidence presented up to that point, and without objection, I expanded the parents’ visitation with Jesiah and Neriah to include two hours of unsupervised time per visit, with the start and end to be supervised by ACS or an approved adult.
In August, while the parties sought additional investigation and evidence for the hearing, my Court Attorney held two case conferences. Throughout that time period, CPS Banson confirmed that the parents’ visitation — both supervised and unsupervised — went well and without concern, and ACS did not seek to reduce visitation nor raise any safety concerns.
On August 23, the hearing continued, and I heard additional evidence and updates. Again, CPS Banson described the parents’ visitation and cooperation with services and supervision. Without objection, I expanded visitation with the older children to be fully unsupervised and without limitation. In addition, I authorized 90 minutes of "sandwich" visitation (that is, unsupervised time that is "sandwiched" between observation and supervision by ACS or an approved adult) for Amani, as well as that the parents may take Milani to and from medical appointments, also "sandwiched" by supervision at the beginning and end (and presumably observed by medical providers during the appointments themselves). I specifically ordered that the parents shall not use any form of physical or corporal punishment on the children at any time, and I required the parents to have an emergency plan in place in the event of a problem.
On August 29, all counsel drafted a written agreement releasing the child Neriah to the parents and releasing Jesiah jointly to both of his parents (Mr. Anthony N. and the child's mother). In September and October, my Court Attorney held more conferences while the investigation continued. ACS confirmed that during this time, the parents engaged in all required services, meetings, and appointments. The parents visited the children every day, and ACS described that all visitation — both supervised and unsupervised — went extremely well and raised no new concerns.
On October 19, the hearing continued, and I heard additional evidence and updates. Again, CPS Banson confirmed that the visitation was occurring without any safety concerns. Notably, in addition to the "sandwich" portions of the visits, ACS described that the parents continued to visit the children for extended periods of time under supervision. I expanded the parents’ visitation to two hours of "sandwich" time per day with the twins and one overnight with the twins per week.
On October 28, I heard additional evidence and updates, and CPS Banson confirmed that the visitation was occurring without any safety concerns, including the overnights, except that Milani had choked on a grape, was taken to a doctor, and was now fine. At this point, ACS had not appealed any of the visitation orders nor sought to scale them back, and they sought no additional conditions of supervision or Orders from me. I expanded the parents’ visitation to include unsupervised overnight visitation from Friday afternoons through Tuesday evenings, as well as that ACS regularly visit the home to check on the children and the family.
On November 2, I heard additional evidence and updates, and CPS Banson confirmed that the visitation was occurring without any safety concerns. We finished the evidentiary portion of the hearing, and we adjourned the case for summations on November 14. I expanded visitation to include unsupervised overnights from Fridays at 12:00pm through Wednesday evenings.
Finally, I note that there was testimony that Milani's two grandmothers participated in the care of the twins after they came home from the hospital.
IV. LEGAL STANDARDS
Under FCA § 1028, a court must grant a parent's application for the return of a child "unless it finds that returning the child would present an imminent risk to the child's life or health." FCA § 1028. In
Nicholson v. Scoppetta , 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 (2004), the Court of Appeals clarified the standard of "imminent risk" and the factors courts must weigh in making such decisions. The courts must consider whether the "children were actually or imminently harmed by reason of [the parent's] failure to exercise even minimal care in providing them with proper oversight," examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior, including whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" Id. at 370-72, 787 N.Y.S.2d 196, 820 N.E.2d 840.
Further, Nicholson makes clear that a court must do more than identify the existence of a risk of serious harm. In addition, a court must weigh whether the risk of harm to the child can be mitigated by reasonable court orders, and a court must balance any risk of harm against the potential harm that removal of the children might bring, factually evaluating which course is in the child's best interest. Id. at 379-80, 787 N.Y.S.2d 196, 820 N.E.2d 840. And finally, "[t]he term ‘safer course’ should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption." Id. at 380, 787 N.Y.S.2d 196, 820 N.E.2d 840.
These legal standards apply regardless of the seriousness of the case or allegations. In so-called "res ipsa" cases under FCA § 1046(a)(ii), ACS is not required to prove the exact mechanism of the injuries nor the particular person or persons who inflicted them. Rather, "a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child which would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred." FCA § 1046(a)(ii) ; Matter of Philip M. , 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993).
However, the § 1028 decision is a separate one from the decision at trial about whether or not ACS has proven by a preponderance of the evidence that abuse or neglect occurred. In other words, "the Court does not need to [fully resolve the question of abuse or neglect] to address the legal issue at this § 1028 hearing. ‘Rather, this court must engage in a fact-intensive inquiry to determine whether the children's physical or emotional health is at risk’ if returned to their parents." Matter of Nevaeh N. , 56 Misc 3d 1212(A), 2017 WL 3272166 (Fam. Ct. Kings Co., J. Deane, 5/31/17) (quoting Matter or DeAndre S. , 92 A.D.3d 888, 939 N.Y.S.2d 499 (2nd Dept. 2012) ). See also Matter of Maria S. , 43 Misc 3d 1218(A), 2014 WL 1687161 (Fam. Ct. Kings Co., J. Wan, 4/29/14) (finding of abuse in res ispa case but contemporaneous release of children under § 1028 ).
Accordingly, I am not asked to decide at this stage whether or not ACS has proven that Milani's injuries were intentionally inflicted, accidental, genetic, or something else. Of course, the likelihood or even possibility of intentional or negligent infliction of injuries to an infant is an important consideration in the analysis of imminent risk. That is, if either or both parents caused or allowed these injuries to be caused, that would heighten the risk to the children. However, the nature of Article 10 cases in general, and § 1028 hearings in particular, require a Court to assess whether, at the time of the hearing , ACS and Court supervision, engagement in services, the passage of time, and other factors in a case can lessen risks to children, even if parents or guardians have abused or neglected them. Nicholson , 3 N.Y.3d at 370-72, 787 N.Y.S.2d 196, 820 N.E.2d 840. So even if I am "not able to fully resolve the question of how [the child's] injury occurred," I can and must assess the § 1028 application. Nevaeh N. , 56 Misc. 3d at p.14.
Notably, appellate courts have cautioned against allowing unsupervised visitation or returning children to respondents in serious res ipsa cases before the factfinding hearing is completed. See Matter of Daniel O. , 141 A.D.3d 434, 435, 33 N.Y.S.3d 894 (1st Dept. 2016) ("improvident exercise of discretion" to order unsupervised visitation "without the benefit of a full fact-finding hearing"); Matter of Bree W. , 98 A.D.3d 522, 949 N.Y.S.2d 185 (2nd Dept. 2012) (same); Matter of Jacob P. , 37 A.D.3d 836, 838, 831 N.Y.S.2d 252 (2nd Dept. 2007) (reversing release of the child to one parent "pending the fact-finding hearing"). However, this is not codified in the Family Court Act, and the procedural history of those cases can be distinguished from this case based upon the severity of the injuries involved as well as the comprehensive nature of the § 1028 hearing done here. See Matter of Caleb S. , 2020 NYLJ Lexis 1406 (Fam. Ct. Bronx Co., J. Passidomo, 9/2/20); Matter of Blair D. , 2020 NYLJ Lexis 1346 (Fam. Ct. Bronx Co., J. Passidomo, 8/7/20); Matter of Nathan G.-C. , 65 Misc 3d 1220(A), 2019 WL 5658808 (Fam. Ct. Bronx Co., J. Taylor 10/30/19) ; Naveah N. , 56 Misc 3d 1212(A) at p. 6.
V. ANALYSIS AND DECISION
In considering all of the evidence at the hearing, it is clear that Milani's fractures might have been caused by forceful grabbing, pressing or other intentional acts that might not leave an external mark or bruise (or where the mark or bruise healed before being noticed). While shaking, grabbing or banging could cause these particular types of injuries, there are no other bruises, scrapes, marks or evidence that one might expect to see where there is intentional or repeated abuse of such a young child. All the testimony, letters, and evidence are clear that neither Milani nor any of the other children have had any other bruises, marks, injuries or harm. The children all attend school, daycare, doctors, and/or other appointments and services, and there is no prior history of ACS involvement or observations of any such concerns. And all parties stipulated — and the letters and testimony supported — that the parents have always appeared to be attentive, loving, calm, and attuned to the children's needs, as well as receptive and cooperative with medical and ACS intervention.
In this case, there remains a dispute about whether these injuries to Milani are inflicted or something else. For this hearing, the doctors gave evidence about statistics and probabilities, but even they acknowledged that statistics do not provide an answer in a single legal case like this. But importantly, it does not appear that there will be any further significant medical investigation relating to Milani that will answer these questions. That is, the results of testing are back, the children are now developing appropriately and seem healthy, and the dispute about causation of these injuries will likely remain in the realm of the opinions of medical experts, rather than any new facts. Ultimately, the final question of causation will have to be decided at the trial.
And despite the Appellate Divisions’ concerns about visitation and release prior to a fact-finding, case law makes clear that even after a finding of abuse and multiple injuries to a baby, children can released to respondents under appropriate supervision and orders. See, e.g. , Matter of Radames S. , 112 A.D.3d 433, 976 N.Y.S.2d 458 (1st Dept. 2013) ; Matter of Matthew O. , 103 A.D.3d 67, 956 N.Y.S.2d 31 (1st Dept. 2012) ; Matter of Aniyah F. , 13 A.D.3d 529, 788 N.Y.S.2d 119 (2nd Dept. 2004) ; Matter of T.A. , 950 N.Y.S.2d 611 (Fam. Ct. NY Co. 2012).
In this case, we have four total months of observation since the case was filed, as well as a great deal of information about the family from before the filing. There are legitimate concerns about the causation of Milani's injuries, but the evidence at this hearing is overwhelming that these parents (1) have demonstrated their care, commitment, and attentiveness to their children; (2) are taking seriously the children's medical needs, and addressing whatever concerns might exist; and (3) will follow any Orders set by the Court.
The attorney for the child has supported the expanded visitation and now supports the children being released to the parents. ACS has worked diligently to investigate the case and supervise the family, and they have monitored the expanding visits without raising any new concerns or appealing to a higher court. The parents have visited constantly, participated in all medical appointments for Milani, and have now been observed carefully during unsupervised overnights.
In considering the balance of harms and the children's best interests under Nicholson , the children have all been with other family members, but visitation requires a great deal of travel that cuts down on the parents’ time with their children and ability to attend to all of the things going on in their lives and the lives of their children. It is widely recognized that parent-child bonding in the early years is key to positive development of the children and the family. And so if it can be done safely, the preference is for children to be at home with their parents.
VI. CONCLUSION AND ORDER
Based on all the evidence at the hearing, I find that there is no imminent risk of harm for Milani or the other children to be in their parents’ care. And whatever risk might exist can be mitigated by Court Orders and supervision. Finally, I find that in balancing all the factors present in this case, it is in the children's best interest to be released to their parents at this time.
This release is with ACS and Court supervision, including the following conditions:
• The children are released to the parents with
ACS and Court supervision
• The parents shall cooperate with ACS and Court supervision, including maintaining contact with ACS, permitting ACS to make announced and unannounced visits to the home, and accepting any reasonable referrals for services
• Limited Order of Protection against both parents, protecting all four children
• The parents shall not use any form of physical or corporal punishment on the children at any time, nor shall they permit anyone else to do so
• The parents shall not leave the children unattended at any period of time
• The parents shall not leave the children with anyone not approved in advance by ACS
• The parents shall have a detailed emergency plan in place for the children's medical needs or in the event of any problem or emergency
• The parents shall engage in all Preventive Services recommended by their providers
• ACS, the Preventive Services Agency, and/or other similar agencies shall visit the home at least once per week
• The parents shall ensure that the children attend and receive all recommended medical evaluations, services, and appointments