181 Misc. 2d 386 | N.Y.C. Fam. Ct. | 1999
OPINION OF THE COURT
In this proceeding alleging neglect and abuse of the infant Kevin (born Oct. 11, 1998), the Commissioner of the Administration for Children’s Services (ACS) contends that the respondent father, Kurt C., caused injuries to the infant at a time when the respondent mother, Lynette T., concededly was not present, and that thereafter Ms. T. abused and neglected the child by failing to obtain medical care and by refusing to acknowledge Mr. C.’s responsibility for the infant’s injuries.
The court heard testimony on April 28 and May 24, 1999. On April 28, the court received in evidence the infant’s hospital records; the respondent father’s videotaped confession to injuring the infant; and heard thé testimony of the ACS caseworker, Ms. Hoover, and of the respondent mother, called as a witness by the Law Guardian. On May 24, the court heard the mother’s testimony on her own case, and the testimony of the paternal grandmother. The court credits the testimony of all the witnesses called, finding no significant inconsistencies in the testimony. Based on the foregoing, the court finds the following facts to be established by a preponderance of the credible evidence.
FINDINGS OF FACT
On Saturday, January 23, 1999, Kurt drove Lynette from their home in Brooklyn to New Jersey where Lynette was to work overnight as a babysitter, substituting on this occasion for a friend. They were accompanied by their three-month-old son, Kevin. Lynette was to work from Saturday morning at 10:00 a.m. overnight to Sunday morning at 7:00 a.m. Lynette left Kevin with Kurt the previous weekend, for the same time period, without incident. Lynette testified that she had left Kevin with Kurt on other occasions when she ran errands, and that there had never been a problem. Lynette lived with her husband Kurt for two years. Kurt never had abused her or the infant, physically or verbally. Lynette had seen Kurt with his other two children, a three and a four year old, by other mothers. The four year old lived with Kurt and Lynette for eight months. The three year old spent weekends with Kurt and Lynette. Lynette had never seen Kurt act otherwise than in a “loving and caring” manner toward his children. Although
On January 24, 1999 at about 2:00 a.m., Kurt C. was asleep in the bedroom in the Brooklyn apartment he and his wife, Lynette, and Kevin shared with others. The infant slept in a baby carrier on the bed. The infant woke Kurt with his crying. Kurt “got upset” and kicked the carrier “hard”, knocking the infant off of the bed and causing him to hit a dresser. As Kevin lay on the floor crying, Kurt picked the infant up by the arms and dropped him into the carrier. Kurt went to get a bottle. When he came back, Kevin refused the bottle, so Kurt, “annoyed and angry,” pinched him on the cheek and ears. Kurt then picked Kevin up and held him under his arm like a “football” while he put a sheet on the bed. Kurt then placed Kevin on the sheet to change his diaper. Still angry, Kurt forced Kevin’s legs backward until his feet touched his face. Eventually, Kevin stopped crying and took the bottle. At about 5:00 a.m., the infant woke again. Kurt noticed bruises on the infant’s right cheek and left ear. He gave Kevin apple juice in a bottle and turned on the television to watch cartoons. Kevin went back to sleep. Kurt prepared to go to work. He had to commute to Boston, where he had a job as a mover.
Lynette arrived at about 10:00 a.m.. She heard Kevin crying and believed that he was not acting normally. Kurt said that Kevin was hungry, and that the formula had “run out.” Kurt did not tell his wife what he had done, or that anything unusual had happened to the baby. Lynette asked her husband when he last fed Kevin. Kurt told her that the infant last ate at 7:00 a.m. Lynette immediately went out to buy formula for Kevin, as Kurt was in a hurry to get to work. Lynette returned with the formula after five minutes, and Kurt left. The baby continued to cry and Lynette attempted to comfort him, by holding and talking to him. As she tried to feed the infant, Lynette noticed a blue mark on Kevin’s cheek and a red mark on his forehead. She knew she would be unable to reach the father, who was on his way to Boston. As the infant continued to cry, the mother called a close friend and older woman, Ms. Paul, whom she described as “like a mother” to her. Ms. Paul had given the mother advice when Kevin had “grippe.” Lynette called Ms. Paul at her job, a little after 11:00 a.m. Lynette told Ms. Paul about the marks on the infant’s face. Ms. Paul arrived at about 11:15 and stayed 15 minutes, rubbing Kevin’s
It appears that Kevin arrived at Kings County Hospital at about 3:00 p.m. The pediatric ambulatory care report indicates that- the infant’s temperature first was recorded at the hospital at 3:21 p.m. Significantly, the ambulance call report indicates that Lynette told the dispatcher precisely what she described in court as having observed. She told EMS that Kevin had a fever; that he was “easily distracted”; that he cried a lot when his left foot was touched; and that he had a red mark on his forehead. Lynette’s account of the event was consistent beginning with the call to EMS, through the medical, ACS and police investigation, and in court. The triage nurse’s form, completed at 3:21 p.m., noted the following: a fever of 102.6 F; a swollen and tender left foot; a small bruise on the right side of the forehead and redness to the left cheek. It also was noted that Kevin had a cough and had been diagnosed as having a respiratory problem IV2 months before. A further examination revealed a .3-millimeter purple bruise by the left ear; a .3-to-.5-millimeter purple mark on the left cheek; a 1-centimeter square
The hospital records indicate that the social worker recommended discharging Kevin to his mother. When told by the caseworker about the doctor’s findings and the father’s confession to the police, the respondent mother said: “I can’t believe he did it. He has other children. We never had an argument. He’s a gentle person * * * I don’t believe he did that.” The respondent mother also testified that the police told her Kurt confessed. Lynette had not spoken to her husband, who was in jail, as of the date of these interviews. The respondent mother testified that she was in shock, and that this was not the person she knew the father to be. She testified that she was unable emotionally to believe that her husband had hurt the child. Kevin was put on social hold, and application for remand made to and granted by this court. In court, Lynette continued to express her disbelief that Kurt had caused the injuries to the child. She expressed her inability to accept this information even though she watched Kurt’s videotaped confession. She testified that she did not know what to believe. She also testified that although the infant is not in her care, she has separated from her husband and maintains her own residence. She also expressed her intent to enforce any order of protection issued in favor of Kevin against Kurt.
CONCLUSIONS OF LAW
The foregoing facts clearly establish that Kurt C. abused Kevin, within the meaning of Family Court Act § 1012 (e) (i).
In the court’s opinion, the foregoing evidence fails to establish that Lynette either allowed Kurt to abuse Kevin, or that she neglected Kevin by failing promptly to obtain medical attention for his injuries. The child was not in her care at the time of the events causing his injuries. There can be no serious contention that the respondent mother abused the infant. When the issue is whether a parent allowed her child to be abused within the meaning of Family Court Act § 1012 (e) (i) and (ii), “the test is whether a reasonable and prudent parent would have acted [to protect the child] under the circumstances presented.” (See, e.g., Matter of Eric J., 223 AD2d 412, 413 [1st Dept 1996].) Although the standard is an objective one, it does not impose absolute liability. As the Court of Appeals has noted, “The statute is fault based. There must be evidence of child abuse and petitioner must establish it by ‘a preponderance of the evidence’ (Family Ct Act § 1046 [b] [i]; and see, Matter of Tammie Z., 66 NY2d 1).” (Matter of Philip M., 82 NY2d 238, 243-244 [1993].) There must be evidence from which it may be inferred that a reasonable parent in the respondent’s position should have known of the potential for abuse, and consequently failed to exercise a minimum degree of care in preventing the abuse. (See, e.g., Matter of Scott G., 124 AD2d 928 [3d Dept 1986].) Here the uncontroverted evidence shows that the respondent mother had no reason to believe that her husband of two years would injure their three-month-old infant. There is no evidence that the respondent father ever had acted in any manner so as to place the infant at risk of any kind, much less a substantial risk of physical injury to the degree required by the abuse statute. (Family Ct Act § 1012 [e] [i], [ii].) On the contrary, the respondent mother testified that she had observed her husband with his other children and that he was loving and caring. She testified that he had never been
Similarly, with regard to medical neglect, the record shows that the respondent mother exhibited appropriate concern for the infant’s needs. As previously noted, the respondent mother had no reason to believe that the infant’s father had injured him. While in retrospect the marks on the child clearly were evidence of inflicted trauma, the respondent mother initially had no cause to suspect that the infant had been abused. The father denied that anything unusual had happened to Kevin. Despite the father’s reassurances, the respondent mother appropriately sought the advice of others more knowledgeable, beginning with Ms. Paul. She sought Ms. Paul’s advice within an hour of returning home. There is nothing in the record to indicate that Ms. Paul recognized that the infant had been injured or abused. Ms. Paul left after consoling Kevin. When Kevin continued to show signs of discomfort, and the respondent mother reached her husband, shortly after noon, she confronted him, asking whether Kevin had fallen. That she did not immediately reject her husband’s denial does not rise to the level of neglect. The respondent mother continued to seek advice after she discovered that the infant’s left foot was painful to the touch. She called Ms. Paul a second time and then spoke to the paternal grandmother who is a nurse’s assistant. The paternal grandmother testified that she was at the respondent mother’s home by 1:00 p.m., three hours after the mother arrived home. Ultimately, at the suggestion of the paternal grandmother, the respondent called EMS. The petitioner argues that the failure immediately to call EMS amounts to a failure to exercise a minimum degree of care to be expected of a reasonable parent. Obviously, the petitioner would be correct had the mother known, or had the circumstances been such that a reasonably prudent parent would have known, that the infant was abused or was injured and required medical attention. What the petitioner disregards is the absence in the record of any evidence that the observable injuries indicated an immediate need of medical attention. The triage form completed by the first nurse to see Kevin indicates precisely what the respondent mother testified she observed: that he had a fever of 102.6 F; a swollen and tender left foot; a small bruise on the
The petitioner would have the court make a finding of abuse against the respondent mother based upon her difficulty in accepting that her husband is capable of causing the harm he has confessed to committing. Certainly, had the respondent mother reconciled with the father and allowed him access to the infant after he admitted to causing these injuries, there would be a cause of action for neglect based upon the respondent’s failure to exercise a minimum degree of care to protect the child from the risk of future harm. (See, e.g., Matter of Scott G., 124 AD2d 928 [3d Dept 1986], supra.) The issue presented is whether the same result should follow from the respondent mother’s difficulty in accepting her husband’s conduct. In this case, the respondent mother has done nothing, either by commission or by omission, to place her child at risk of physical injury. Significantly, the respondent mother never denied that her husband injured their infant. In fact, she has taken steps that a reasonable, prudent parent confronted with the risk that her child may be harmed by the other parent, would take under such circumstances. The mother has separated from the respondent father and despite her own access to the infant in the kinship foster home, has not facilitated the father’s contact with the child, but has expressed her intent to enforce the court’s order keeping him away from the infant. Consequently, the facts of this case are not analogous to those cases where a parent allows access to her children by a person who she knows presents a risk to their safety. Nor are these facts analogous to those cases in which at disposition, following a finding that the parent has placed her children at risk in the past, the court must assess the potential future harm to the
As the Law Guardian correctly notes, even though no finding of neglect against the mother is warranted, the court may impose conditions on the release of the child to the mother, under Family Court Act § 1054. That section enables the court to place the mother to whom the infant is released under the agency’s supervision as a corollary to the dispositional order based upon the finding of abuse by the father. Such an order may include a requirement that the mother “cooperate with the supervising agency in remedying specified acts or omissions found at the fact-finding hearing to constitute or to have caused the neglect or abuse.” (Uniform Rules for Trial Cts [22 NYCRR] § 205.83 [b] [2].) The court also has the authority to direct the mother to “do or refrain from doing any other specified act of omission or commission that, in the judgment of the court, is necessary to protect the child from injury or mistreatment and to help safeguard the physical, mental and emotional well-being of the child.” (Uniform Rules for Trial Cts [22 NYCRR] § 205.83 [b] [7].) In addition, the court may issue an order of protection binding on the mother pursuant to Family Court Act § 1056, in assistance of the dispositional order issued against the father. (See, e.g., Matter of Christina I., 226 AD2d 789 [3d Dept 1996]; Matter of William GG., 222 AD2d 752 [3d Dept 1995].)
As to the father, the court has entered a final order of protection for a one-year period, directing that he remain away from the infant and from the separate home established by the mother. During the period of the order of protection, he must undergo a course of therapy to discover and to treat the causes of his abuse. Despite the respondent mother’s difficulty in accepting her husband’s conduct, there is nothing to indicate that she would refuse to enforce an order of protection against the father, on behalf of the child. (See, e.g., Matter of Nichole B., 175 AD2d 205 [2d Dept 1991].)