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In Re Matthew O.

December 13, 2012


The opinion of the court was delivered by: Catterson, J.

Matter of Matthew O. (Kenneth O.)

Appellate Division, First Department

Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2012

Peter Tom,J.P. James M. Catterson Rosalyn H. Richter Sheila Abdus-Salaam Nelson S. Roman, JJ.

Respondents appeal from the order of disposition of the Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about June 7, 2010, which, to the extent appealed from as limited by the briefs, brings up for review a fact-finding determination that they had abused the youngest subject child and derivatively neglected the other children.

This appeal arises from a Family Court determination that the respondents, the parents and the nanny of a baby girl, Victoria O., abused the infant and derivatively neglected her siblings. The respondents contend that the court's finding was not supported by a preponderance of the evidence even though it is undisputed that Victoria O. suffered seven distinct fractures of her arms, legs and skull before reaching the age of five months. The respondents argue nevertheless that the preponderance of evidence standard requires evidence that "pinpoints" the time when the injuries occurred, and thus establishes which caregiver was in control of the child at the time. The respondents misconstrue the precedent on which they purport to rely because, of course, any such requirement would automatically immunize entire households where multiple caregivers share responsibility for child care.

The record reflects that on February 16, 2005, five-month-old Victoria O. was taken to the emergency room with a "painfully" swollen left arm. She was diagnosed with a fracture and admitted for treatment. On February 18, 2005, a pediatrician at New York Presbyterian Hospital examined Victoria and reviewed her medical record and Xrays in response to a report of suspected child abuse. The pediatrician discovered that in addition to the fracture for which she was admitted, Victoria had suffered six additional fractures, the oldest of which may have occurred when she was just two months old. The same day, the Administration for Children's Services (hereinafter referred to as "ACS") filed a petition initiating child abuse and neglect proceedings against Victoria's parents, Kenneth O. and Nancy O., and Merlene R., who worked as a nanny for the family 12 hours a day, 5 days a week, during the relevant period. The petition alleged that Victoria sustained multiple injuries for which the parents provided no explanation. A separate petition was filed alleging abuse and neglect of Victoria's three siblings.*fn1

The record further reflects that 11 witnesses testified over 42 days at a fact-finding hearing. Among the witnesses was the pediatrician who diagnosed the fractures. Her testimony adduced the following: Victoria suffered seven fractures -- two left elbow fractures, a left-wrist fracture, a fractured left tibia and fibula, and two skull fractures -- none of which could have been self-inflicted. Although the elbow fractures could not be dated with certainty, the swelling and Victoria's distress when she arrived at the hospital indicated "recent trauma; within the past week." The pediatrician testified that the elbow "corner bucket handle" fractures could not have been accidental, and are seen predominantly in cases of child abuse. She testified that such fractures are caused by "very violent shaking or tearing," and that it was unlikely that any of Victoria's siblings could exert the force necessary to cause such fractures. Victoria's left wrist fracture was between two weeks and three months old, and would have initially caused pain and swelling. The fractures to Victoria's left tibia and fibula would also have initially caused significant pain and swelling. While the pediatrician testified that it was impossible to determine precisely when these fractures occurred due to a lack of medical or other documentation, she surmised that all were at least one week old.

Furthermore, according to her testimony, the pediatrician found that Victoria had suffered two skull injuries: a displaced fracture on the side of her skull, which she determined to be less than three months old, and a non-displaced occipital skull fracture. While the pediatrician was unable to testify to the exact date that the second fracture occurred, she testified that cranial swelling present at the time of her examination was either unrelated to the fracture or suggested that the fracture was "very recent."

The pediatrician also testified that Victoria was underweight and suffered from moderate malnutrition. The pediatrician attributed the infant's loss of appetite to the pain of her successive injuries. The pediatrician opined that given the various stages of healing of the fractures, the lack of any explanation as to how they occurred, and Victoria's very young age, "all of the fractures were inflicted" on the infant. Victoria's parents and Merlene R. also testified at the fact-finding hearing. Merlene R. testified that she worked as the children's nanny for approximately eight years until February 16, 2005. She testified that there were instances when Victoria appeared to be injured which she reported to Nancy O. She testified that both parents were uninvolved with their children, and that Nancy was a very "disengaged" mother.

The parents testified that they were happy and satisfied with Merlene R.'s care of their children until the birth of Victoria, at which time Merlene became distracted and distant with the children. The parents speculated that personal and family problems affected her job performance. They admitted to allowing the other children to carry Victoria when she was three months old. Kenneth O. testified that Merlene appeared to be depressed and was inattentive to Victoria. With regard to Victoria's injuries, the parents claimed that they sought medical attention for Victoria, but that no one diagnosed the fractures. Although Nancy O. testified that "[t]he only ...

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