Published on:

NY Appellate Court Finds Child Neglect Present


On 13 April 1992, three month old baby boy (the baby) was found by his mother, respondent to have an injured leg. Respondents, the mother and 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 the father and his sister.

A New York Injury Lawyer said the fact finding hearing, the caseworker testified that she first interviewed respondents at their home on 15 April 1992, at which time they informed her that the father had informed the mother 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. The mother informed the caseworker 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 the aforesaid 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, the caseworker interviewed the 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 (head injury) 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. The mother 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 the father was rough in his treatment of the baby and that she had told him not to play so roughly with the child. The father admitted that he “played rough” with the child, including holding him high in the air and shaking him.

After the caseworker’s interview with the parents, she then took their other child, a 15-month old baby girl, for a physical examination, which showed that she was healthy and revealed no evidence of physical abuse.

Are the parents, respondents, liable for neglect or abuse?

A Manhattan Personal Injury Lawyer said the family Court Act provides that a prima facie case of abuse or neglect is established by “proof of injuries sustained by a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child”. Although the ultimate burden of proof of establishing by a fair preponderance of the evidence that the respondents abused or neglected the subject child remains upon petitioner, once a prima facie case is established, the burden of coming forward shifts to the parents, who are then required to offer a satisfactory explanation for the injuries.

The court finds that the proffered explanation for the three fractures suffered by the three month old child as accidental is not credible; and that, as a result, the parents have failed to provide a satisfactory explanation for the injuries.

There is no question that the serious fractures sustained by the baby establish a prima facie case of abuse. As noted by the Court of Appeals, “the credibility of the ‘accident’ explanation diminishes as the instances of similar alleged ‘accidental’ injury increase.” The possibility that, over the course of six weeks, the infant suffered three completely accidental injuries serious enough to have resulted in fractures would appear to be extremely small.

A Nassau County Personal Injury Lawyer said moreover, upon close examination, the parents’ descriptions of the incidents which they offered as explanation for the injuries are very unconvincing. First, virtually no weight can be given to the father’s implicit explanation that the rib fracture could have been the result of what he described as his customary rough play with the infant which, though perhaps ill-advised, was not intentionally injurious. The medical testimony made clear that the type of handling which could have resulted in such injuries would have had to exert such extraordinary force on the rib so as to be obviously injurious. In light of this, the father’s self-serving explanation is simply not believable. Nor did the medical testimony presented lend credence to the supposition that a fall from his parents’ bed, which the father had never mentioned to anyone at the time it allegedly happened, could have fractured the baby’s skull and, in fact, the expert testimony indicated that a fall from a bed or chair would not cause a skull fracture.

The alternative explanation offered by the parents for the child’s fractured skull, i.e., that he hit his head against a hair dryer left in his crib with such force as to fracture his own skull, is patently absurd.

In addition to the evidence provided by the injuries themselves, the court notes the fact, testified to emphatically by both parents, that the baby cried incessantly. In the context of the other evidence presented, such circumstance provides evidence of motive and supports an inference that the injuries were a result of abusive behavior designed to quiet the child.

Taken as a whole, the evidence was sufficient to sustain the abuse petition against the father and that he inflicted upon the child “physical injury (personal injury), other than accidental, which caused or created a substantial risk of death, or serious or protracted disfigurement”.

However, as to the mother, the court does not find that she abused the infant. In particular the court notes the evidence of her illness, which required a two week hospitalization after the child’s birth and which continued to impair her abilities for some time after her return home, the testimony by both parents indicating that it was during the child’s care by the father that his “accidents” took place, and the lack of any evidence that the mother had reason to believe that the child had suffered such serious injuries prior to her discovery of his broken leg (broken bone), at which time she promptly rushed him to the hospital.

Nevertheless, the court finds that the mother neglected the child. Family Court Act states that a “neglected child” is one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care; that in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof”

There is no question that the mother was aware that the father’s behavior toward the child was improper and likely to produce injury, as both parties agreed that she had frequently warned him about it. Moreover, it is unlikely in the extreme that she believed that the father’s repeated, inappropriate roughness with this colicky, “constantly” crying child was merely harmless “play,” as she chose to characterize it at the hearing. Under these circumstances, her willingness to leave the child in the father’s care must be characterized as neglect.

The court also finds that the respondents’ other child was neglected by both of them.

The Family Court Act provides that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent”. Even in the absence of direct evidence of actual abuse or neglect of a second child, derivative findings of neglect should be entered where the evidence as to the directly abused or neglected child or children demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in their care thereby making such a child a neglected child under the Family Court Act.

The behavior of both parents, respondents, as to the baby clearly demonstrates such a situation with respect to their other child.

Accordingly, a dispositional hearing must follow. The court finds that the children should be released to the custody of the mother. In so directing, the court takes into account that the parties have separated and are living apart; that the mother’s illness following the baby’s birth was a primary contributing factor in her failure to take steps to keep the child safe, and; that, in all other respects, the mother appears to have properly cared for her children.

If you have any legal queries regarding personal injury matters, contact Stephen Bilkis & Associates. We give free consultations for you to be apprised with the details of the possible lawsuit you plan to initiate. You will be advised by the best legal minds in the market, particularly, our NYC Personal Injury Attorneys, NYC Head Injury Attorneys, among others.

Contact Information