Matter of Myriam L.

Matter of Myriam L. (2007 NY Slip Op 52147(U)) [*1] Matter of Myriam L. 2007 NY Slip Op 52147(U) [17 Misc 3d 1125(A)] Decided on November 9, 2007 Family Court, Kings County Hamill, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 21, 2007; it will not be published in the printed Official Reports. Decided on November 9, 2007 Family Court, Kings County In the Matter of Myriam L., A Child under Eighteen Years of Age Alleged to be Abused by Sarah L., Issac L., Respondents NA-13570/07 Jaimee Lynn Nelsen, Esq. for petitioner Family Court Legal Services, Administration for Children's Services 330 Jay Street, 12th Floor Brooklyn, New York 11201 Tanisha McKnight, Esq. as law guardian Juvenile Rights Practice of the Legal Aid Society 111 Livingston Street, 8th Floor Brooklyn, New York 11201 Walter Fields, Esq. for respondent Sarah L. Lanser & Kubitschek 325 Broadway, Suite 201 New York, New York 10007 Steven S. London, Esq. for respondent Issac L. 44 Court Street, Suite 905 Brooklyn, New York 11201 Bryanne A. Hamill, J. On August 31, 2007, the respondent mother, Sarah L., and respondent father, Issac L. (hereinafter "respondent mother" and "respondent father") filed motions for summary judgment. The respondents assert that the abuse petition should be dismissed, pursuant to CPLR R. 3212(b), because the cause of action has no merit and no material issue of fact requiring a trial exists. The respondents further argue that the petition should be dismissed, pursuant to Family Court Act ("FCA") §1051(c). The law guardian for Myriam has filed an affirmation in support of the respondents' motion for summary judgment. The petitioner, the Administration for Children's Services ("ACS"), has submitted an attorney affirmation only in opposition to dismissal. On September 25, 2007, before oral argument, ACS withdrew its abuse petition against the respondent father. After oral argument, this Court granted mother's motion for summary judgment, dismissed the petition, and terminated ACS supervision. This written decision incorporates this Court's analysis. Background ACS commenced this child protective proceeding on June 8, 2007 with the filing of an abuse petition against both respondent parents. The petition charges that Myriam's parents violated FCA §1012(e)(i) or (e)(ii), in that they inflicted or allowed to be inflicted upon such child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or (ii) created or allowed to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ. The petition further alleges that Myriam L., born on October 23, 2006, was admitted to the pediatric unit of NYU Medical Center on June 6, 2007 with a depressed skull fracture. Her mother reported to the attending physician that Myriam fell off a bed and onto a hardwood floor that day. The attending physician reported to an ACS caseworker that this explanation and time frame was not consistent with the child' s injury as the absence of soft tissue swelling on the child's skull, which would date the injury to three to five days old. Upon the filing of the abuse petition and the recommendations of ACS and the law guardian, this Court directed that Myriam remain removed from her parents' care and custody, remanded to ACS, and ultimately, placed restrictively with her maternal grandparents. On July 20, 2007, her mother filed a motion requesting the return of Myriam, pursuant to FCA §1028. On July 30, 2007, an agreement was reached between the parents, ACS and the law guardian to return Myriam to her father's care and custody, under ACS supervision, on condition that both respondents in the home cooperate with the Family Preservation Program (hereinafter "FPP") for up to twenty hours a week. The Court held ACS accountable for reassessing and reporting the need for FPP within six weeks. On September 4, 2007, respondents filed motions for summary judgment, pursuant to [*2]CPLR R.3212(b), dismissing the petition because the cause of action has no merit.[FN1] Analysis A parent is liable for abuse of their child, pursuant to FCA §1012(e)(i) or (e)(ii), respectively, when either they inflict or allow to be inflicted upon such child, physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or (ii) create or allows to be created a substantial risk of physical injury to such child by other than accidental means which would likely cause death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or the impairment of the function of any bodily organ. In this case, based upon the petition filed, ACS is relying upon FCA §1046 (a)(ii), which states "proof of injuries sustained by a child or the condition of a child of such 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 shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible." In support of her motion, the mother has submitted her affidavit, her counsel's affirmation, and affirmations by eight physicians with copies of their curriculum vitae.[FN2] Each of these physicians are specialists in pediatric medicine and/or neurology and/or child abuse, and essentially corroborates her explanation that this infant's skull fracture was caused by an accident. The mother annexed to her motion an affirmation by Dr. Walter J. Molofsky, who is the chief of pediatric neurology at Beth Israel Medical Center, associate chairman of the neurology department, and an associate professor of pediatric neurology at Albert Einstein College of Medicine. Dr. Molofsky affirms, under penalty of perjury, that in his expert opinion to a reasonable degree of medical certainty, after a review of the family history, a detailed history of the events, a review of the emergency room and hospital records from NYU, including the CT and MRI, that the reasonable explanation presented by Myriam's parents as to how her skull fracture was sustained, ie. falling off the bed onto the hard wood floor, is consistent, entirely plausible, and the most probable explanation for what happened to this infant. Dr. Molofsky states in his consultation report, which he affirms the contents to be true, that there are numerous case reports of infants who have sustained skull fractures from falls from low heights without adjacent soft tissue swelling. He refers to an article entitledHow Important is Scalp Soft Tissue Injury as a Predictor of Skull Fracture, by Ashis Banerjee, published in the Journal of the Royal Society of Medicine, Volume 84, August 1991, which cites to a study of twenty-one [*3]children with skull fractures and eleven of the children had no soft tissue injury. He also notes that Myriam saw her pediatrician, Dr. Feldman, six days prior to her hospitalization, with no injuries. Dr. Molofsky further discusses whether an infant can sustain a depressed skull fracture from a fall from such a short distance. He refers to an article entitled Infants with Isolated Skull Fractures, What are their Clinical Characteristics and Did they Require Hospitalization, by David S. Greenes, M.D. and Sara Schutman, M.D., which appeared in the Annals of Emergency Medicine, September 1997. This article notes that many investigators have found that infants younger than two years of age are especially at high risk for skull fractures and intra cranial injuries even in cases of minor head trauma. In their results, they noted that in one group of patients that many of these falls involved short distances. In fact, thirty percent fell from heights less than three feet. Seventeen of the eighteen subjects who reportedly fell from a height of less than three feet were younger than one year of age. Further it was noted that six of the subjects with depressed skull fractures were among twelve children who fell less than 3 feet. Another case report cited by Dr. Molofsky is entitledDepressed Skull Fracture in a 7-Month-Old Child who Fell from the Bed, which appeared in Pediatrics 1997, Vol. 100 pgs 1033-1034, in which the report describes a factually similiar situation, where a 7-month-old infant fell off a bed with no evidence of external trauma, except for a 2 x 4 x 0.5 cm depressed skull fracture in the right parietal region. None of these reported cases was inflicted trauma; all were accidental. Dr. Ira Richmond Abbott, professor of clinical neurosurgery and pediatric neurosurgery at Albert Einstein College of Medicine, states in his affirmation, dated August 31, 2007, that he examined Myriam on June 26, 2007 and the following: "I can find no evidence to support a conclusion that Myriam's injury is due to child abuse. The normal retinal exam does not support the conclusion that the depressed skull fracture is due to a blow with force. Multiple long bone fractures of different dates have not been established. I do not find any inconsistencies in the history of this child's injury. The history given to me appears to be the same as that given to the other physicians and the fall described certainly could account for the injuries seen. Further, there are reports in the literature of such falls resulting in similar injuries with lack of injury to the overlying scalp and a depression such as seen in Myriam." Myriam's pediatrician, Dr. Saul Feldman, submitted an affirmation stating the following: He has been Myriam's pediatrician since her birth. On June 6, 2007, Myriam's mother brought her to see him, with a depressed skull fracture. She told him that Myriam fell off a bed, and he referred her to the hospital. Myriam's parents have always been conscientious about Myriam's health and would always bring her to see him for basic concerns, such as a cough or crying before bed. Myriam is always brought for her well child care visits, and at no time in the nineteen visits that he has examined the child, was there any evidence of trauma. Dr. Feldman finds it incomprehensible that this episode could be due to abuse by her parents. Additional affirmations were submitted by Dr. Stephen Ajl, medical director of the Brooklyn Child Advocacy Center; Dr. Mark Mittler, pediatric neurological surgeon and clinical assistant professor of neurosurgery at New York University School of Medicine; Dr. Michael Frogel, chief of general pediatrics at Schneider Children's Hospital; Dr. Murray Engel, pediatric neurologist and supervisor of pediatric neurology at New York Presbyterian/Weil Cornell Hospital; and Dr. Linda Heier, section chief neuroradiology and professor of clinical radiology at [*4]Weill Cornell Medical School of Cornell University. Each and every physician corroborates the findings and conclusions of Dr. Molofsky and Dr. Abbott that Myriam's head injury was consistent with her mother's explanation that she had a short fall from a bed onto a hardwood floor, and that the absence of soft tissue injury does not, in and of itself, indicate that this fracture did not occur on the date as the mother reported. Further, the findings by the physicians demonstrate that there was no signs or evidence of inflicted trauma. The version of the events the parents told the emergency room physician and the ACS caseworker is the same version throughout, ie. Myriam's mother was changing her on the bed and when she turned to get a new diaper, the child fell off the bed and hit her head on a hard wood floor, whereupon her mother noticed a depression in the child's skull and immediately went to her doctor, who then referred her to the hospital. The extensive documentary evidence submitted by this mother fully supports this conclusion. With respect to case law regarding fractures in abuse cases, in Brandyn P., 278 AD2d 533 (3rd Dept. 2000), the trial court accepted the respondent's explanation that the child's injury occurred accidentally. The Appellate Division affirmed, and held that the evidence supported a finding that the spiral fracture of a one-year-old infant's leg was caused by an accidental fall rather than abuse. The Court found that although a spiral fracture may be compatible with a finding of abuse, standing alone it does not compel a finding of abuse (see, Matter of Anthony YY. 202 AD2d 740(3rd Dept. 1994). "In cases involving such a fracture where abuse is established, there have been other physical manifestations of abuse such as marks, bruises or other fractures (Matter of NYC Dept. of Social Services v. Carmen J. 209 AD2d 525 (2nd Dept. 1994) which the family court found to be lacking here." Id. at 535. The Fourth Department in Tony B., 41 AD3d 1242 (4th Dept. 2007), held that a three-month-old child suffering a skull fracture did not establish prima facie case of child abuse. Based upon this Court's careful consideration of counsels' oral arguments, current case law, and all the papers submitted, including the mother's affidavit, her counsel's affirmation, the law guardian's affirmation in support, and voluminous documentary evidence, this mother has demonstrated a reasonable explanation for Myriam's skull fracture, which is consistent with an accident, and thus, a defense to the abuse charges. Where the moving party has demonstrated that it is entitled to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue of fact or tender an acceptable excuse for failing to do so, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement." Zuckerman v. City of New York, 49 NY2d 557 (1980). ACS has submitted only an attorney affirmation in opposition to respondent's motion. Notably, ACS has failed to file any affidavits of caseworkers and any affirmations of physicians refuting this mother's documentary evidence, including the attending physician who claimed that the lack of soft tissue swelling indicated that the injury was three to five days old and inconsistent with this mother's explanation. ACS argues that summary judgment is not appropriate because pursuant to FCA §165, the CPLR is only applicable where the method of procedure in any family court proceeding is not prescribed. Since FCA §1051 directly addresses the circumstances under which an Article 10 petition can be dismissed, the motion brought under CPLR R. 3212(b) should be denied.ACS further argues that summary judgment should be denied because there exists a triable issue of fact without citing one. ACS contends that [*5]whenever they file a petition, they are entitled to a hearing thereupon because summary judgement is not a vehicle available to parents. Notably, during oral argument, ACS conceded that Myriam's injuries appear to be consistent with an accidental fall and that after the filing of their petition, ACS conducted no further investigations or medical consultations. Lastly, ACS contends that even if the court were to accept the parents' explanation that Myriam sustained the injuries from falling off the bed while in the mother' s care, there is a triable issue as to whether she was neglectful in leaving the child unattended long enough for her to sustain said injuries. FCA §165(a) states in part . . . "where the method of procedure in any procedure in which the family court has jurisdiction is not prescribed by this act, the procedure shall be in accord with rules adopted by the administrative board of judicial conference, or if none has been adopted, with the provisions of the civil practice act to the extent they are suitable to the proceeding involved." FCA §1051(c) states: "If facts sufficient to sustain the petition under this article are not established, or if, in a case of alleged neglect, the court concludes that its aid is not required on the record before it, the court shall dismiss the petition and shall state on the record the grounds for the dismissal." This Court cannot find any statutory provisions or case law, and none was cited, which precludes the use of summary judgment by parents, pursuant to CPLR R 3212, based upon the language of FCA§ 165. In fact, it is customary for ACS to move for summary judgment for findings against parents, based upon criminal convictions. Further, the Court of Appeals has established the appropriateness of summary judgments in neglect and abuse proceedings in Suffolk County DSS v. James M., 83 NY2d 178 (1994). "Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be properly resolved as a matter of law." Andre V. Pomeroy, 35 NY2d 361 (1974). "When there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims promptly adjudicated." Id. at 364. In the Matter of Julianne XX, 13 AD3d 1031 (3rd Dept. 2004), the respondent moved to dismiss a neglect petition for failure to state a cause of action, and the Family Court, upon notice to the parties, converted respondent's motion to one for summary judgment. Following the receipt of additional submissions by the parties, the Family Court granted respondent's motion, except to the extent that it found a question of fact as to the allegations of domestic violence. The Court held "Preliminary, we note that although infrequently invoked, summary judgment is a permissible procedural device in the context of family court article 10 neglect proceedings (see Matter of Hannah UU., 300 AD2d 942 (3rd Dept. 2002)." Id. at 1032. "Although we are mindful that we must view the evidence in the light most favorable to the petitioner as the party opposing the motion, there is no evidence in the record sufficient to raise a question of fact as to any of the issues upon which summary judgment was granted." Id at 1032. [*6] The First Department in the Matter of Sara L., 249 Ad2d 23 (1 st Dept. 1998), held that the Family Court erred when it denied the respondent's motion for summary judgment, dismissing the petition. The Appellate Division held "in view of the paucity of the allegation of neglect and abuse, contradicted by both the testimonial and documentary evidence, summary judgment should have been granted and the petition dismissed." Id at 23. In the instant case, viewing the evidence in the light most favorable to ACS, this Court holds that there is no triable issue of fact, as a matter of law, which would warrant a hearing. The comprehensive affirmation by Dr. Molofsky, the chief of pediatric neurology at Beth Israel Medical Center, states in his expert opinion, within a reasonable degree of medical certainty, this mother's version of events explaining how Myriam was injured is consistent with her injury. An expert's opinion must represent a reasonable degree of certainty, and must not be based on supposition or speculation. People v. Donohue, 123 AD2d 77 (3rd Dept. 1987).Moreover, seven other expert physicians corroborate the findings and conclusions of Dr. Molofsky. There were no other signs of trauma noted anywhere on the child's body nor did Myriam's pediatrician, who has examined this seven-month-old infant more than nineteen times, ever detect any signs of abuse or trauma. To the contrary, Dr. Feldman reported Myriam to be a very healthy and well cared for child. ACS has failed to refute the experts' physical findings and conclusions as well as the mother's reasonable explanation. ACS failed to submit an affirmation with any expert opinions from the attending emergency room physician, upon whom they placed great weight in filing these abuse charges. Now, ACS seeks to try the mother on neglect charges. However, their petition does not charge neglect nor cite the relevant statutory language. Further, their own FPP report states in relevant part: Mrs. L. appears to be a loving and caring mother; there is no evidence of mental or physical issues that affect her caring for the baby; there is no evidence of domestic violence or substance abuse; and her home environment is favorable. Accordingly, the respondent's motion for summary judgment is granted, the abuse petition is dismissed, and ACS's supervision of her home is hereby terminated. The foregoing constitutes the decision and Order of this Court. Dated: Brooklyn, New York November 9, 2007 E N T E R: ______________________________ Hon. Bryanne A. Hamill Judge of the Family Court Footnotes Footnote 1: Inasmuch as ACS withdrew its petition against the respondent father, this decision only addresses the mother's motion. Footnote 2: Pursuant to CPLR 2106 the statement of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to the action, when subscribed and affirmed by him to be true under penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit.