A man died and his two of his daughters were removed from the care of his wife and the children’s maternal grandmother by the City Children’s Services without a court order. The City Children’s Services filed neglect petitions against all the children’s father, mother and grandmother. A New York Injury Lawyer said the petitions allege that the mother and the father neglected the son by failing to provide adequate supervision and guardianship. Specifically, the petitions allege that when the couple together with their son left the grandmother’s home, they stayed in an abandoned building in Brooklyn. A New york he petitions allege that the building had no heat or electricity and access to the building was obtained through a window that the father broke on a prior occasion. The baby fell asleep in a stroller and the couple slept on the mattress on the floor.
When the baby started crying, his father woke up and gave him a bottle propped up with a tee-shirt and went back to sleep. The father woke up six or seven hours later and found the baby cold and stiff. He attempted to revive the baby but failed then told her wife to call 911 in a payphone. The child’s mother went out but returned without making the call and the father was the one to call 911. The baby was taken to the hospital where he was pronounced dead.
The petitions also allege that the children were neglected as a result of the failure of their mother, father and maternal grandmother to provide adequate food, clothing and shelter. Specifically, the petitions allege that the children were dirty and not adequately fed and that the home was dirty and infested with roaches and mice. The petitions also allege that garbage bags, dirty dishes and dirty clothing were observed throughout the residence. Finally, the petitions allege that the two daughters were derivatively neglected children by virtue of the neglect of their baby brother. On the day the petitions were filed, the Court granted the request of the City Children Services for a remand of the two girls.
A fact-finding hearing was conducted for 15 months and the City Children’s Services withdrew the petitions against the maternal grandmother after she moved to dismiss the petitions for failure to establish a legitimate case. A witness of the fact finding was a caseworker who conducted the initial investigation into the allegations of neglect. She visited the case address and testified that various family members were present when she visited. She indicated, however, that the maternal grandmother was rarely present since she was generally at work. She testified that it was in a deplorable condition, infested with roaches and vermin that although the conditions of the home were improved, they subsequently deteriorated. She testified further that the children’s father did not live at the case address and he was not even allowed to visit there.
The Medical Examiner testified and was qualified as an expert in forensic pathology. She testified that the cause of the baby’s death was positional asphyxia due to soft bedding covering the baby’s mouth and she concluded that it was an accident. She testified that these conclusions were based on a reasonable degree of medical certainty. She further testified that the baby had been placed in the stroller and that he eventually slid down and as a result, the baby’s airway was covered by the blanket, tee-shirt and the bottle in the stroller. The Medical Examiner also testified that the child, like all babies younger than six months of age, did not have the musculature in the neck necessary to lift his head, hold it up and move his body to get air. The Autopsy Report lists the manner of death as accident while asleep in stroller with clothing over airway and there was absolutely no intent to cause the death. The Medical Examiner also testified that the baby was dirty, had dirty fingernails and the baby also had areas of thinning hair around the scalp which suggested that the baby had been lying down in the same position for extended periods of time, long enough to kill the hair follicles. The Autopsy Report also indicated that marks were observed on the baby’s scalp consistent with lice.
Neither parent testified on the hearing. The father called a witness doctor who was qualified as an expert in pediatrics and child abuse. A Brooklyn Personal Injury Laywersaid the expert testified that the circumstances surrounding the baby’s death were similar to Sudden Infant Death Syndrome. The accused parties assert that the petitions should be dismissed because the baby’s death was an accident. They emphasize that they never intended to hurt their son and that the Medical Examiner’s testimony establishes that the death was unintentional.
The City Children’s Services and the Attorney for the two daughters disagree. They contend that a finding of neglect can be based on an unintentional injury and although the parents did not specifically intend to harm their son, they failed to exercise a minimum degree of care that resulted to his death. Accordingly, they assert that findings of neglect are warranted against both parents.
For the reasons more fully set forth, the Court agrees with the City Children’s Services and the Attorney for the Children and enters findings of neglect against the mother and findings of derivative neglect against both parents. A Queens Personal Injury Lawyer said both parents equate the term accident with unintentional injury. They assert that since the son’s death was unintentional, it was accidental and should be immune from liability of neglect. The Court disagrees with the conclusion. The Court states that the parents ignore the plain language of the Family Court Act, which specifically provides for a finding of neglect based on an unintentional injury. Furthermore, the parents ignore the fundamental concerts of tort law; specifically, that liability in negligence does not require intent to cause injury. It requires only a failure to exercise reasonable care, which results in an injury that was reasonably foreseeable. Lastly, the Court states that the term accident does not apply when the parties’ intentional acts had unintended consequences and it is therefore not a defense to allegations of neglect.
The Court rejects the parents’ assertion that the child’s death was accidental and finds instead that it was the result of the parents’ failure to exercise a reasonable degree of care. Accordingly, the Court enters findings of neglect and derivative neglect against the mother and findings of derivative neglect against the father.
The death of the couple’s son may have been unintended but it was not the result of an unavoidable or inevitable accident. There was nothing in the circumstances leading up to the death that was unusual or unexpected. Although the couple did not intend to harm their baby and the results of their conduct were unplanned, their actions were otherwise deliberate. They intentionally removed a two-month-old infant from his home late in the night while he was recovering from a cold, without making adequate sleeping arrangements or taking necessary precautions against the cold, in order to bring him to an abandoned building without heat or electricity and allow him to sleep in a stroller for six hours without supervision, with a bottle propped into his mouth by a tee-shirt. The actions clearly demonstrate a failure to exercise a minimum degree of care. The evidence establishes that the children’s physical, mental or emotional condition was placed in imminent danger of impairment. In reaching the conclusions, the Court notes that both parents chose not to testify and such warrants the drawing of the strongest negative inference against them that the evidence will allow.
Children rely on their families to protect them and make sure that all their needs are satisfied. When you know of children with such needs not being met, you may consult a skilled attorney from Stephen Bilkis and Associates. whether you have a wrongful death action, negligence, or medical malpractice action, their office can help.