This proceeding was brought by the Administration for Children's Services ("ACS" or "Petitioner") under Article 10 of the Family Court Act ("FCA"), alleging that the subject child, Nyla W. ("Nyla") (DOB 12/14/11) was abused by her mother, Nora A. ("Mother"), and/or her grandmother, Annie A.("Grandmother"), and/or her father, Mark W. ("Father"). Nyla was removed from the care and custody of her Mother, Grandmother, and Father on April 16, 2012, when she was four months old, following the discovery by medical personnel in Methodist Hospital (the "Hospital"), of four apparent, unexplained fractures: a left tibia fractures ^[FN1]; two rib fractures; and a fracture of the bone at the tip of the fourth finger of her right hand. Neither the Mother, the Grandmother, nor the Father provided any explanation for any of the injuries.

Presently before the Court is the Mother's application under FCA §1028 for the return of [*2]Nyla to her care. It is Petitioner's position that Nyla's life or health will be put in danger if she is returned to any of the Respondents and that she should remain in foster care unless and until a satisfactory explanation of the causes of her injuries is provided.

A hearing on the Mother's §1028 application was held over the course of several days between October 11, 2012, and January 25, 2013. Petitioner presented the testimony of Karen Forde, a caseworker from Mercy First, the foster care agency responsible for supervising Nyla's foster care; Yvonne Cooper, an ACS Child Protective Specialist; and two expert witnesses, Dr. Andrew Miller, qualified as an expert in pediatric orthopedics, and Dr. Stephen Ajl, qualified as an expert in pediatrics and child abuse. Petitioner's documentary evidence consisted of Nyla's Methodist Hospital records; several x-rays of Nyla's injuries taken at Methodist Hospital in April 2012; a laboratory report from Weill Cornell Medical College regarding the results of an osteogenesis imperfecta test ("Osteogenesis Imperfecta Test"); Dr. Ajl's curriculum vitae; Dr. Miller's curriculum vitae; Nyla's medical records from Long Island College Hospital ("LICH") where she was born; and x-rays taken in December of 2012 at Nassau University Medical Center.

The Mother testified on her own behalf and presented the testimony of the Grandmother; Dr. James D. Horne, Mercy First's pediatrician; Laurie Sutton, Mercy First's Case Planner; Dahomey Grant, a Methodist Hospital Registered Nurse who cared for Nyla during her hospital stay; and Dr. Phyllis Dunn Weiner, who was qualified as an expert in pediatrics and child abuse. The Mother's documentary evidence consisted of her LICH medical records; a letter from the Office of Children and Family Services ("OCFS") marking the case "unfounded"; and the curriculum vitae of Dr. Weiner. The Grandmother participated and testified in the 1028 hearing. The Grandmother's documentary evidence consisted of a Family Team conference summary report and a letter to her from OCFS marking the case unfounded. The Father did not participate, expressly reserving his own right to seek return of Nyla to his care.

The Posture of the Case and the Applicable Evidentiary Standards

As noted, the matter is presently before the Court on the Mother's §1028 application for the return of Nyla to her care. The focus in a §1028 hearing is on whether the child faces any present risk of injury if she is returned home, not whether the parent in fact committed any negligent or abusive act in the past, which is the inquiry in a fact-finding hearing. However, since Petitioner's position is that Nyla continues to be at risk of injury and should not be returned home until an explanation is provided as to the causes of her injuries, i.e., whether any of the Respondents or someone else did something to cause those injuries, the issues of future risk and past cause are inextricably intertwined. Since the matter is before the Court on the Mother's §1028 application, the evidentiary rules applicable to §1028 hearings apply. Petitioner has the burden of proving, by a preponderance of the evidence (FCA §1046(b)(1)^[FN2]; see, e.g., Matter of Emani (M.S.), 31 Misc 3d 1232(A) 1, 10 [Fam. Ct. Bronx Co. 2011]), that the child would be placed in imminent risk of harm if she was returned to her Mother's care. While only "competent, material and relevant evidence" is admissible in fact-finding hearings (FCA §1046 (b) (iii)), all "material and relevant evidence" — [*3]including hearsay — is admissible in §1028 hearings (FCA §1046 (c)); Matter of N. Children (Angela N.), 86 AD3d 572 [2d Dep't 2011]).

The Nonmedical Evidence

The Mother is 30-years old and employed as a Teacher's Assistant working with autistic and other special-needs children ages two to five. The Grandmother was a Registered Nurse for 33 years and retired in 2005. From her birth, Nyla lived with her Mother and Grandmother in the two-family home the Grandmother owns. The Mother was on maternity leave for three months after Nyla was born, and returned to work on March 20, 2012. The Mother was Nyla's primary care giver while she was on maternity leave, but the Grandmother was a partner in Nyla's care, and the Father visited and helped care for Nyla almost every night. The Grandmother took care of Nyla during the day once the Mother returned to work.The Mother, Grandmother, and Father were Nyla's only care givers until Nyla was admitted to Methodist Hospital on April 10, 2012.

According to the credible testimony of the Mother and Grandmother, on the morning of April 10, 2012, they noticed that Nyla was not kicking her left leg like she usually did. The Grandmother described Nyla as a "real kicker." They had observed similar behavior when Nyla was about two months old and had taken her to her pediatrician, Dr. Acenas, who found nothing wrong. On April 10, 2012, the Mother and Grandmother monitored Nyla for awhile, but, when they saw no change, took her to Methodist Hospital's emergency room. An x-ray revealed a "fresh" or "acute" (i.e., recent) fracture of her left tibia. Other than some slight swelling, no bruises or other manifestations of injury were observed. On April 11, 2012, a full-skeletal x-ray was taken to evaluate for possible child abuse. The radiologist reported finding "focal thickening to the anterolateral left fifth and sixth ribs which may represent well-healed fractures... [which] can be from a single isolated traumatic event and not necessarily child abuse." On the third day of her hospitalization, someone in the Hospital noticed for the first time that the fourth finger of Nyla's right hand appeared swollen and bruised. An x-ray of her finger revealed what the radiologist described as an "apparent acute" fracture of the tip of her finger. A test excluded osteogenesis imperfecta or other genetic factors as possible causes of any of the injuries. Neither the Mother, the Grandmother, nor the Father was able to provide any explanation for any of Nyla's injuries.

The Hospital notified ACS of a possible case of child abuse. Petitioner filed the instant petition, Nyla was remanded to the Commissioner of ACS and Mercy First, and placed in the care of her great uncle, Dr.A, a surgeon who lives on Long Island.

The Agency developed a service plan which requires that the Mother and Grandmother enroll in and complete a parenting-skills course and engage in individual therapy.^[FN3] The Mother and Grandmother are permitted agency-supervised visits as well as visits supervised by Dr. A. The Mother and Grandmother completed the parenting-skills programs and are continuing with their individual therapy.

Ms. Cooper, Ms Forde, and Ms. Sutton each testified that, during the agency-supervised visits, the Mother and Grandmother were observed to be closely bonded to Nyla and to treat her in a loving, completely appropriate manner. Ms. Dahomey Grant, the Methodist Hospital nurse who [*4]cared for Nyla during her hospital stay, similarly recalled the Mother to be "affectionate" and appropriate with Nyla. Dr. A. has reported that he has no concerns about the Mother's or Grandmother's care of Nyla. Ms. Cooper testified that an inspection of the Mother's and Grandmother's home revealed the home to be appropriate and welcoming, with all necessary provisions for the child.

Neither the Mother nor the Grandmother have any prior ACS history. There is no evidence that the Mother or Grandmother suffer from any mental illness or abuse drugs or alcohol. Neither the Mother nor Grandmother has any criminal history. Petitioner acknowledges that the Mother and Grandmother have done all that has been asked of them, but adheres to the position that, so long as there is no explanation for Nyla's injuries, she will continue to be at risk of further injury if she is returned to any of the Respondents.

Petitioner's Experts .Dr. Andrew Miller.

Dr. Andrew Miller is the Co-Chair of the Division of Pediatric Orthopedics at Methodist Hospital, and the orthopedist who treated Nyla's tibia fracture. He was Chief of Pediatric Orthopedics and an Assistant Clinical Professor at the State University of New York at Brooklyn. Dr. Miller completed speciality training in pediatric orthopedic surgery at the Alfred I. Dupont Institute, Wilmington, Delaware, is Board Certified in orthopedics, and has practiced pediatric orthopedics for nearly 25 years. Dr. Miller was qualified in this case as an expert in pediatric orthopedics. Dr. Miller volunteered that he is not an expert in child abuse, pediatrics, or obstetrics.

In preparing for his testimony, Dr. Miller reviewed some of the Methodist Hospital orthopedic records. He examined Nyla and set her leg in the Hospital; spoke to the radiologist; reviewed the x-rays of Nyla's leg and the results of the Osteogenesis Imperfecta Test. After he had reached a conclusion that Nyla's injuries were the result of abuse and after he had begun his testimony, Dr. Miller "briefly reviewed" the Mother's obstetrical records from Long Island College Hospital where Nyla was born.

Dr. Stephen Ira Ajl.

Dr. Stephen Ajl is Director of Pediatric Ambulatory Care at the Brooklyn Hospital Center. For the past 8 years, Dr. Ajl has also been the Medical Director of Jane Barker Brooklyn Child Advocacy Center and the Staten Island Child Advocacy Center. He is Board Certified in Pediatrics and he has been certified as an expert in child abuse. Dr. Ajl is a member of New York City Child Abuse Peer Review Group and the New York City Mayor's Task Force on Child Abuse. He is also a pediatric consultant to the District Attorney's Bureau of Crimes Against Children and the Director of the Brooklyn Consortium for the Protection of Children. Dr. Ajl is a member of the American Academy of Pediatrics Subcommittee on Child Abuse and Neglect and of the New York Professional Society on Abuse of Children. Dr. Ajl was qualified as an expert in pediatrics and child abuse for purposes of this proceeding.

In preparing for his testimony, Dr. Ajl reviewed Nyla's Methodist Hospital records; the x-rays of Nyla's leg; an unspecified ACS report; the Osteogenesis Imperfecta Test results; the testimony of the ACS and Mercy First caseworkers; and the LICH records.

The Conclusion of Petitioner's Experts

Dr. Miller and Dr. Ajl each concluded that Nyla's injuries were the result of abuse. Each doctor based his conclusion primarily on the fact that Nyla suffered three fractures in four months. [*5]Dr. Miller characterized his conclusion as a "no brainer": "three fractures in a four-month old while the child is in custody of the parents ... it's abuse until it's proven otherwise; it's as simple as that."Dr. Ajl expressed a similar view, finding that three unexplained fractures with no other medical etiology of which he was aware equated to abuse.

Respondent's Expert: Dr. Phyllis Weiner

Dr. Weiner has practiced pediatric medicine since 1965 and has extensive experience in the area of child abuse and neglect. She is currently the Chairperson of Pediatrics and a clinical professor of pediatric medicine at St. George University School of Medicine; Chairperson of Pediatrics, Emeritus, at Jamaica Hospital Medical Center; a Fellow of the American Academy of Pediatricians and a Member of the Academy's Child Abuse and Neglect Section. Dr. Weiner is also co-chair of the Child-Abuse Committees of Flushing Hospital Medical Center, Booth Memorial Medical Center, and Jamaica Hospital Medical Center. She is a member of the Child Sex Abuse Peer Review Network of Greater New York. She previously served as a Clinical Professor of Pediatrics at the Albert Einstein College of Medicine, the New York College of Osteopathic Medcine, and Senior Clinical Instructor at Mt. Sinai School of Medicine. Dr. Weiner was also the Program Director and Faculty Member of the "Identifying and Reporting Child Abuse Training Course." She is a member of the New York City and Nassau County Assigned Counsel Plans as an expert in the fields of pediatrics and child abuse, has provided training programs for attorneys (including ACS attorneys), and has been repeatedly qualified as an expert in pediatrics and child abuse in court proceedings. Dr. Weiner was qualified as an expert in pediatrics and child abuse for purposes of these proceedings.

In preparing to testify, Dr. Weiner conducted a wide-ranging, in-depth investigation. She reviewed Methodist Hospital records; the x-rays of Nyla's leg, ribs, and finger taken in April 2012 when Nyla was in the hospital, as well as new x-rays taken in December 2012. Dr. Weiner reviewed the Mother's and Nyla's LICH records; the results of the Osteogenesis Imperfect Test; the records of Nyla's primary-care pediatrician, Dr. Elizabeth S. Acenas. She also conferred with the Methodist Hospital radiologist, Dr. Jeffrey Hirsch, and Dr. James D. Horn, Mercy First's pediatrician, and Dr. Arcenas, Nyla's primary care pediatrician before she entered foster care. Dr. Weiner also interviewed the Mother, the Grandmother, and the foster parent Dr. Angus.

Dr. Weiner testified that when she investigates a possible instance of child abuse she begins her inquiry at the point when the child was last observed to be uninjured. Since Nyla was only four months old when her injuries were discovered, Dr. Weiner began her investigation on the day Nyla was born, continued through her stay in Methodist Hospital, and concluded with her consultation with Mercy First's pediatrician, Dr. Horn, and a review of x-rays taken pursuant to Court order in December 2012. Dr. Weiner testified that review of medical records alone is an insufficient basis on which to render a medical opinion. In her view, it is necessary to obtain a full picture of the child, her family, her caregivers, her environment, whether there are any stressors such as poverty, drug use, mental illness, or domestic violence, which are often triggers and indicators of child abuse. She found no such circumstances in this case. To the contrary, the fact that the Mother, who worked with special needs children, and the Grandmother, who had been a nurse for many years, jointly cared for Nyla indicated that Nyla enjoyed particularly attentive care with built in protections. In addition to obtaining a global picture of Nyla's general circumstances, Dr. Weiner considered each injury and its possible causes separately.Dr. Weiner concluded to a reasonable degree of medical certainty that none of Nyla's injuries was the result of abuse.

The Tibia. [*6]

Dr. Weiner, Dr. Miller, and Dr. Ajl agreed, consistent with the x-ray taken of Nyla's leg on April 10, 2012, and the radiologist's report regarding that x-ray, that Nyla suffered a tibia fracture and that it was a "fresh," i.e., recent fracture. Dr. Weiner and Dr. Miller testified that, as a broken bone heals, callus develops at the site of the break creating a bridge holding the broken parts together until the bone can regenerate. The less callus, the more recent the fracture. Nyla's tibia x-ray showed no callus, indicating that it was a very recent fracture. Dr. Miller testified that the fracture could have occurred between 24 and 48 hours before it was discovered. Dr. Ajl testified that the fracture could have happened "minutes" but not more than two weeks before it was discovered. Dr. Weiner testified she believed the break occurred just hours before the Mother and Grandmother took Nyla to the Hospital.

Dr. Weiner, Dr. Ajl, and Dr. Hirsch agreed that the tibia fracture was "transverse," which can result from a direct blow to the leg or it can occur when the leg bends and the bone snaps. Dr. Miller initially insisted that it was a "spiral" fracture, which results from someone or something twisting the leg. Dr. Miller eventually changed his testimony and agreed that Nyla suffered a transverse fracture of her tibia.

No one witnessed the tibia injury occur. Testing for osteogenesis imperfecta ruled out 99% of all possible genetic causes of the fractures, and there was no evidence of any metabolic or vitamin deficiency that would provide possible medical explanations for the fractures. According to Dr. Weiner, such circumstances can result in "indeterminate findings," meaning that it cannot be determined with reasonable medical certainty, that the injury was the result of abuse. In those cases, plausible explanations may be considered in light of the surrounding circumstances to reach a supportable conclusion.

In considering Nyla's tibia fracture, Dr. Weiner hypothesized that during the night before she was brought to the Hospital, Nyla's foot got caught between the slats of her crib, her leg bent, perhaps as she tried to free her foot or as she turned her body, and her tibia snapped. Dr. Weiner found support for her hypothesis not only in the medical facts that the fracture was very recent and transverse (and thus possibly caused by Nyla's leg bending), but also in the reports by both the Mother and Grandmother that Nyla was an active baby, "a real kicker," who was able to move herself from one part of her crib to another and who could turn and roll. In addition, the Mother and Grandmother told Dr. Weiner that they observed nothing wrong with Nyla's leg when they put her to sleep after her nighttime feeding on April 9th, and only noticed a change the next morning. Those uncontested facts, along with the circumstances of Nyla's life, her environment, the attentive care she received from the Mother, Father and Grandmother — including the fact that they took Nyla to the emergency room soon after they noticed a difference in her behavior — and the absence of common triggers and indicators of abuse such as poverty, mental illness, substance abuse, criminal or ACS history, or domestic violence, led Dr. Weiner to conclude with a reasonable degree of medical certainty that Nyla's tibia fracture was accidental and not the product of abuse.

Dr. Miller initially testified that tibia fractures in infants Nyla's age are most commonly caused by the child getting her foot caught between the slats of a crib. He subsequently testified that it was "not possible" for a four-month-old baby to fracture a leg in that way. Dr. Ajl agreed that a transverse fracture can be caused "when the bone is bent, with the leg going one way and the body going the other." However he, too, did not believe it was possible for Nyla to have fractured her leg by getting her foot caught in the slats of her crib. Neither Dr. Miller nor Dr. Ajl explained why they reached that conclusion.

Dr. Miller and Dr. Ajl acknowledged that a tibia can fracture as result of an accident. Dr. [*7]Ajl suggested a car accident or falling out a window as two possible examples of causative accidents, neither of which occurred in this case. Dr. Miller and Dr. Ajl theorized that the tibia fracture was caused by a direct blow to Nyla's leg. However, Dr. Weiner noted that Nyla's leg would have shown signs of bruising if it was hit with enough force to fracture her tibia, and the Hospital records noted only that the leg was slightly swollen, not that her leg was bruised in any way. Nonetheless, Dr. Miller and Dr. Ajl rejected the possibility of an accidental tibia fracture because there was no evidence of an accident and, more significantly for them, because it was one of three fractures incurred within four months.

The Ribs

On April 11, 2012, a full skeletal x-ray was taken of Nyla to evaluate for child abuse. Just one x-ray was taken of Nyla's whole body. The radiologist, Dr. Jeffrey Hirsch, who read the x-ray film, noted a "focal thickening to the anterior-lateral left fifth and sixth ribs, which may represent well-healed fractures. . . . [which] can be from a single isolated event and not necessarily child abuse."

Dr. Weiner testified that the x-ray is very unclear, which might explain Dr. Hirsch's equivocal report that what he observed "may" represent rib fractures. Dr. Weiner noted that, a focal thickening of the ribs is not necessarily indicative of a fracture and once the thickening was observed, additional site-specific x-rays of Nyla's ribs should have been taken. Dr. Ajl agreed that the Methodist Hospital rib x-ray was inadequate. He testified that the Hospital should have taken multiple x-rays of the right and left sides of each arm, leg, hand, and foot, the right and left sides of the body, at least two of the skull and three or four of the chest. The the insufficiency of the single x-ray and Dr. Hirsch's equivocal finding that what he observed only "may" represent rib fractures, raised questions for Dr. Weiner as to whether there was any rib fracture at all. However, x-rays taken in December 2012 showed that the thickening of the bones originally observed in April had all but disappeared, suggesting that there were rib fractures but the bones had completely regenerated.

Dr. Weiner, Dr. Ajl, and Dr. Hirsch agreed that site of the rib injury was left anterior-lateral, meaning between Nyla's front and left side. Dr. Miller alone believed they were left, posterior-lateral, meaning between Nyla's back and the side.Dr. Miller, Dr. Ajl and Dr. Weiner all agreed that posterior rib fractures are more commonly associated with abuse than anterior fractures.

Each of the experts testified that rib fractures can be caused by squeezing the ribs or by a direct blow, or by the application of significant pressure.Dr. Weiner, Dr. Miller, Dr. Ajl, and Dr. Hirsch agreed that the rib fractures were "well-healed," meaning they had occurred some significant time before they were discovered. Dr. Ajl surmised that they occurred two to three months but not four months before discovery. Dr. Miller estimated that they could have occurred as much four months before, which would mean that they could have occurred when Nyla was born. Based upon the circumstances of Nyla's birth, Dr. Weiner testified that she believed the injuries occurred when Nyla was born, slightly less than four months before they were discovered.

The Mother's and Nyla's LICH records revealed that Nyla experienced respiratory complications at birth.Dr. Weiner testified that in uneventful births, babies breathe in air soon after their heads emerge, their color becomes pink, their muscle tone is good, all of which is reflected in their Apgar score, which measures the baby's color, heart rate, reflexes, muscle tone and respiratory effort. A perfect Apgar score is 10 out of 10. The LICH records described Nyla as "hypotonic" (poor muscle tone), "dusky" (grayish skin color), and experiencing "poor respiratory effort" at her birth. Dr. Weiner explained that Nyla's "poor respiratory effort" meant that Nyla was having [*8]difficulty lowering her diaphragm to expand her lungs and fill them with air. As a result, she was not receiving sufficient oxygen, and her lungs and rib cage were retracting, causing outside air pressure to press in between her ribs. As a result of the poor respiratory effort and retraction, Nyla was born lacking oxygen. Her one-minute Apgar score of was six out of a possible 10. Dr. Weiner testified that a score of five and below is correlated to cerebral palsy. A pediatrician was summoned to the delivery room, which Dr. Weiner stated is rare in vaginal births and only occurs if the baby is in distress. Nyla's nose and mouth were suctioned, she was resuscitated and given oxygen, and her Apgar score after five minutes, rose to eight out of ten. Dr. Weiner hypothesized that Nyla's ribs could have been broken during labor and delivery, which could have caused her chest and ribs to retract. Alternatively, Dr. Weiner suggested that the rib fractures could have occurred while she was being resuscitated. Dr. Hirsch agreed that Nyla's rib fractures could have occurred at Nyla's birth.

Dr. Weiner found support for her hypothesis in the Mother's report that she breast fed Nyla and that, from her birth, she could not coax Nyla to feed from her right breast. Dr. Weiner, Dr. Miller and Dr. Ajl agreed that a fractured left rib would cause Nyla pain or discomfort if pressure was applied to her left side. Dr. Weiner believed that Nyla's rejection of her Mother's right breast could be explained by the fact that she would have to lay on her left side to feed from the right breast.

Dr. Miller and Dr. Ajl acknowledged that it was possible that Nyla's rib fractures could have occurred during labor and delivery or while she was being resuscitated, but they rejected that hypothesis because, according to them, reports of rib fractures in newborns are rare. Dr. Weiner countered that it is impossible to know how many babies might suffer fractured ribs during labor and delivery because such injuries are not apparent without x-rays, and newborns are not routinely x-rayed.

Based upon the estimated age of the rib fractures, Nyla's complicated birth, her rejection of her Mother's right breast, Dr. Hirsch's concurrence that the fractures could have occurred at birth, and all the other circumstances of Nyla's life, Dr. Weiner concluded, with a reasonable degree of medical certainty, that, if there were rib fractures, they occurred during her birth or while she was being resuscitated, and were not the result of abuse.

The Finger Fracture

Nyla was admitted to Methodist Hospital on April 10, 2012. There is no record of any bruising or injury to any of her fingers on admission or at any time until her third day in the Hospital. on April 12, 2012. There was uncontested testimony by a number of witnesses that Nyla was examined, bathed, dressed and undressed multiple times by various doctors and nurses and that, if there was some swelling or bruising or discoloration of any of her fingers, it would have been observed and noted in the records. On April 12, 2012, someone (the evidence did not indicate who) noticed that Nyla's right ring finger appeared swollen and discolored, and an x-ray was taken. The radiologist, Dr. Jose Mora noted in his report that only a "single frontal view of the hands" was provided, and found, based upon that one x-ray, that "[t]here is an apparent fracture of the tuft of the right fourth distal phalanx. No other acute displaced fractures identified."

Dr. Weiner reviewed the x-ray and, although she observed a line in the finger, she found it to be "indistinct" and "hard to define." As with the radiology report of the apparent rib fractures, the equivocal radiology report of an "apparent" finger fracture raised questions for her as to whether there was such a fracture at all. No additional x-rays of the finger were taken, so her questions remain unresolved. Additionally, Dr. Weiner stated that the swelling and discoloration of the finger could have been no more than an irritation caused by the finger rubbing against something. [*9]

Dr. Weiner, Dr. Miller, and Dr. Ajl all agreed that the injury was acute. Dr. Weiner testified that, because the apparent fracture was to the tip of the finger where the bone is very close to the skin, the swelling and discoloration of Nyla's finger would have occurred within an hour of the injury. Dr. Miller testified that they would have appeared "almost immediately." Dr. Ajl stated that it could take up to two weeks for swelling and bruising to become obvious, although he did not explain why he believed it would take that long.

Dr. Weiner concluded to a reasonable degree of medical certainty that, if there was a fracture to Nyla's finger, it occurred while she was in Methodist Hospital under the care of many nurses, doctors and other hospital personnel and that it was the result of an accident, not abuse.

Dr. Miller and Dr. Ajl testified that the apparent finger fracture was a result of abuse, because it was one of three fractures suffered by a four-month-old child.

The Legal Analysis

Section 1028(a) requires that the Court grant the application for the return of the child "unless it finds that the return presents an imminent risk to the child's life or health." In reaching its conclusion, a court must consider whether reasonable efforts were made to avoid removal of the child in the first place and whether, after removal, reasonable efforts have been or can be made to enable the child to safely return home (see FCA §1028 (b); Matter of Jamie C., 26 Misc 3d 580 [Fam Ct. Kings Co. 2009]). To justify the continued removal of the child, the Court must find that the risk is "imminent," i.e., "near or impending, not merely possible" (Nicholson v Scopetta, 3 NY3d 357, 380 [2004]; see also Matter of David G. (Blossom B.), 29 Misc 3d 1178, 1183 [Fam. Ct. (Fam. Ct. Kings co. 2010]; Matter of L.B.C., 29 Misc 3d 1205(A) [Fam. Ct. Bronx Co. 2010]). Additionally, the Court must weigh the risk posed by the return of the child against the harm she will suffer from her continued separation from her Mother (Nicholson, 3 NY3d at 369; see also Matter of DeAndre S., 92 AD3d 888 [2d Dep't 2012]). The Court of Appeals has cautioned against courts resorting to what might be argued to be the "safer course . . . [which may] mask a dearth of evidence or [operate] as a watered-down, impermissible presumption (Nicholoson, 3 NY3dat 380).

A parent will be found to have abused her child under Family Court Act § 1012(e)(i) or (e)(ii) if she

"inflicts or allows 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 creates or allows

to be created a substantial risk of physical injury . . . 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."

Family Court Act § 1046 (a) (ii), which is commonly referred to as the "res ipsa loquitur" provision of the Family Court Act, permits an inference to be drawn so as to establish a prima facie case of abuse or neglect upon proof that the child suffered an injury that would not "ordinarily be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of the child" (see Matter of Philip M, 82 NY2d 238, 243 [1993]; Matter of Christopher Anthony M., 46 AD3d 896, 898 [2d Dept. 2007]; In re Ashley RR, 30 AD3d 699, 700 [3d Dept [*10]2006]; cf. Dermatossian v New York City Transit Authority, 67 NY2d 219 [1986] [articulating the res ipsa standard in a personal injury case]). To meet its burden, Petitioner need not exclude all other possible explanations, but it must produce sufficient evidence to establish that it is more likely than not that the injuries were the result of the caretaker's acts or omissions (see Matter of G.C. Children, 23 Misc 3d 1134(A) [Fam. Ct. Kings Co. 2009); see also Dermatossian, supra, 67 NY2d at 226-228]).

As in negligence cases which gave rise to the res ipsa doctrine, once the Petitioner has established a prima facie case under FCA §1046(a)(ii), the "burden of explanation" shifts to the respondents, who may — but need not — attempt to refute Petitioner's evidence (Matter of Philip M., 82 NY2d at 244; see also Matter of Amir L, 2013 NY Slip Op. 01617 [1st Dept Mar. 14, 2013]; In the Matter of Tyler S., 2013 NY App Div. LEXIS 911 [2d Dept Feb. 2013])). The statute does not shift the ultimate burden of proof, which remains with the Petitioner; it establishes only a permissible inference of parental culpability once Petitioner has met its prima facie burden (Phillip M., 82 NY2d at 244; see also Tyler S., 2013 NY App Div LEXIS at 6; Christopher Anthony M., supra, 46 AD3d at 898 ; Ashley RR., 30 AD3d at 700).

Once a prima facie case has been established, respondents may simply rest without attempting to rebut the presumption and permit the court to decide the case on the strength of petitioner's evidence (Philip M., supra at 244) . Alternatively, respondents may attempt to rebut the petitioner's prima facie case with evidence that (a) the child did not suffer the injury or condition which was the basis for the petition (see, e.g., Matter of Smith, 128 AD2d 784, 785-786); or (b) the child was not in their care when the injury occurred (see, e.g., Matter of Vincent M., 193 AD2d 398, 403); or (c)the injury could reasonably and credibly have been the result of an accident, without any acts of negligence or abuse by respondent (see, e.g., Matter of Amir L. 2013 NY Slip Op 01617 [1st Dept. Mar. 14,2013]; Matter of Eric G., 99 AD2d 835).

The court is required to weigh all the evidence in the record and consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances (Philip M, 82 NY2d at 246). "In weighing the caretaker's explanation, the court may consider the inferences reasonably drawn from his or her actions upon learning of the injury. . . . The caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered . . . , for they reflect not only upon the caretaker's fault and competence but also the strength of the caretaker's rebuttal evidence" (id.).

As in tort law, Petitioner may rely on expert testimony to demonstrate that the child's injury would not ordinarily occur in the absence of parental abuse or neglect (Matter of G.C. Children, 23 Misc 3d 1134(A)[Fam. Ct. Kings Co. 2009]; Matter of Myriam L., 17 Misc 3d 1125(A) [Kings Co 2007]; see also Richardson, Evidence 367, pp. 151-152 [Prince 10th ed.] [1972 - 1985 Cum Supp]; People v Donohue, 123 AD2d 77, 79 [3d Dept 1987] appeal denied 69 NY2d 879 [1987]). The expert's opinion or conclusion must be based upon a reasonable degree of certainty, not on supposition or speculation or mere possibility (G.C. Children, 23 Misc 3d 1134(A). Res ipsa loquitur does not apply when it is merely possible that negligence or abuse was the cause of the injury (id.; see also Richardson, Evidence § 367, pp. 151-152 [Prince 10th ed.] [1972 - 1985 Cum Supp]; People v Donohue, 123 AD2d 77, 79, 510 N.Y.S.2d 722 [3d Dept 1987] appeal denied 69 NY2d 879, 507 N.E.2d 1097 [1987]). "Where the probabilities are at best evenly divided between negligence [or abuse] and its absence, it becomes the duty of the court to [find] that there is no[t] [*11]sufficient proof" (Restatement 2d of Torts, 328D, Comment d, p. 159; Spica v Connor, 56 Misc 2d 364, 365 -366, 288 N.Y.S.2d 719 [Dist Ct, Suffolk County 1968]; People v Miller, 116 AD2d 595, 497 N.Y.S.2d 455 [2d Dept 1986]). It is up to the finder of fact to assess the credibility of the expert witnesses when they reach different conclusions (People v Jackson, 65 NY2d 265 [1985] ; Velonis v Vitale, 57 AD3d 657 [2d Dept 2008]; Manuka v Crenshaw, 43 AD3d 886 [3d Dept 2007]; Gray v McParland, 255 AD2d 359 [2d Dept 1998]).

Relying on FCA§ 1046 (a)(ii), Petitioner attempted, through the testimony of its two experts Dr. Miller and Dr. Ajl, to establish that Nyla's injuries would not ordinarily have occurred but for the acts or omissions of Respondents. Dr. Miller and Dr. Ajl concluded that the injuries were the result of abuse based chiefly on the fact that Nyla suffered three injuries in four months. They reached this conclusion after relatively cursory reviews of Methodist Hospital records; less than cursory reviews of the LICH records. Neither doctor ever spoke to the parents, the grandmother, the foster parent, or the child's regular pediatrician, Dr. Arcenas. Dr. Miller spoke only perfunctorily with Dr. Bialak, the Methodist Hospital pediatrician, and Dr. Ajl did not speak with him at all. Neither doctor spoke to Dr. Jeffrey Hirsch, the Methodist Hospital radiologist who read and reported on Nyla's rib x-rays, or Dr. James Horn, Mercy First's pediatrician and the physician responsible for Nyla's medical care since she entered foster care. Most of Dr. Miller's and Dr. Ajl's testimony was offered not to explain their conclusion but in an attempt to rebut the conclusions of Dr. Weiner.

It is most certainly true that discovery of three fractures in a child as young as Nyla is a cause for considerable concern and may justify a temporary emergency removal of a child from her parents or caretakers. However, a prima facie case of abuse cannot be supported by simply counting the injuries. Petitioner still must produce evidence to establish that it is more likely than not that the injuries resulted from some acts or omissions of the caretakers (see Matter of G.C. Children, 23 Misc 3d 1134(A) [Fam. Ct. Kings Co. 2009). The existence of multiple injuries may constitute one factor in determining if the respondent is guilty of abuse or neglect, but it cannot be the beginning and end of the inquiry.^[FN4] Each injury should be considered separately, particularly where, as here, they are separated by time. Each injury should also be considered in the context of the child's life circumstances.

The Tibia

Petitioner sustained its prima facie burden of establishing that Nyla's broken tibia was an injury that would not ordinarily be sustained except by reason of the acts or omissions of one or more of the Respondents (see, e.g., Matter of Amir L., 2013 NY Slip Op 01617 [1st Dept. Mar. 14, 2013].

The Mother successfully met her burden of explanation through Dr. Weiner's testimony that the tibia fracture could have been the result of Nyla getting her foot caught in the slats of the crib and, by turning or rolling, causing her leg to bend and the bone to break. The evidence that the fracture likely occurred within hours before its discovery and that Nyla was "a kicker" able to move herself around the crib, along with Dr. Miller's initial testimony that infant leg fractures are [*12]commonly caused when the infant's leg is captured in the slats of a crib, support Dr. Weiner's hypothesis that Nyla's tibia fracture "could reasonably have occurred accidentally without the acts or omissions of respondent" (Philip M., supra, 82 NY2d at 244; see also Tyler S., supra, 2013 NY App Div at 6 [respondent's reasonable explanation rebutted petitioner's prima facie case]; Amir L, supra, 2013 NY App Div LEXIS at 3 [respondents satisfied their burden of explanation by showing that the injury could have occurred accidentally]; Matter of Jose Luits T., 81 AD3d 406 [1st Dept. 2011][fracture could have occurred consistent with respondent's explanation]; Matter of Christopher Anthony M, 46 AD3d 896 [respondent produced sufficient evidence to establish that the injury could reasonably have occurred accidentally]; In the Matter of Eric G., 99 AD2d 835 [2d Dept. 1984]).

Dr. Weiner's conclusion is not negated by Dr. Ajl's testimony or Dr. Miller's changed testimony that it was not possible for Nyla's tibia fracture to have been caused in this way as they provided no explanation as to why they believed such occurrence would be impossible (see, e.g., Tyler S., supra, 2013 NY App Div LEXIS 911[2d Dept. Feb 13, 2013]) [respondent provided reasonable explanation for injury and Petitioner presented no other evidence to support its allegation of abuse]).

The Ribs.

Although Dr. Weiner raised questions as to whether Nyla in fact suffered fractured ribs, the x-rays taken in December 2012 confirm that Nyla's ribs were fractured. Since broken ribs in an infant would not ordinarily occur in the absence of acts or omissions of her caretakers, Petitioner satisfied its prima facie burden under FCA 1046 (a)(ii).

The Mother again satisfied her burden of coming forth with a credible and reasonable explanation that Nyla's rib fractures could have been caused during the Mother's labor and delivery or while Nyla was being resuscitated right after her birth. Dr. Weiner's explanation is supported by Dr. Hirsch's concurrence as well as by the evidence as to the age of the rib fractures, the LICH hospital records detailing the circumstances of Nyla's birth, and Nyla's rejection of her Mother's right breast.Dr. Miller's and Dr. Ajl's testimony that rib fractures in newborns are rare is wholly insufficient to undermine Dr. Weiner's conclusion, and Petitioner produced no other evidence to support its allegation that the rib fractures were a product of abuse.

The Finger Fracture

Petitioner failed to establish by a preponderance of the evidence that Nyla suffered a fracture of her finger. The radiology report of the April 12, 2012, x-ray of Nyla's hand was equivocal, and, in contrast to the rib fracture, the December 2012 x-rays provided no convincing evidence that Nyla in fact suffered a fracture of her finger. In addition, even if there was a finger fracture, the credible evidence established that it occurred while Nyla was in the Hospital and under the care and watchful eyes of Methodist Hospital personnel. Petitioner failed to establish by a preponderance of the evidence that Nyla was in the Mother's or Grandmother's care when the injury occurred and thus that either one of them could be guilty of abuse (see, e.g., Matter of Vincent M., 193 AD2d 398, 403).

The Circumstances of Nyla's Life

Dr. Weiner's conclusions that none of Nyla's injuries were caused by any negligent or abusive acts of the Mother or Grandmother are further supported by her finding that the Mother and Grandmother were devoted caretakers of Nyla; that they had no prior ACS or criminal history; that neither one of them was mentally ill, or a substance abuser, or a victim or perpetrator of domestic violence, or subject to the stresses often associated with child abuse. Dr. Weiner went far beyond a simple review of medical records and conducted a thorough investigation of each of Nyla's injuries and her conclusions are supported by the evidence she uncovered. Dr. Miller's and Dr. Ajl's [*13]conclusions are based on a limited review of the medical records and their own unsupported belief that three bone fractures in a four-month-old infant must be the product of abuse. Dr. Weiner was a very credible, reliable, and compelling witness, and her testimony was consistent throughout and supported by other evidence. In contrast, Dr. Miller was neither credible nor reliable: his testimony was inconsistent, contradictory, frequently in conflict with Dr. Ajl's testimony, and infected by his unsupported belief in abuse by the numbers. While Dr. Ajl presented as a credible witness, his testimony was not well informed and also tainted by his unsupported assumption that three injuries in four months must equate to abuse.

Conclusion

For all the foregoing reasons, I find that Petitioner failed to establish by a preponderance of the evidence that Nyla's injuries were the result of any acts or omissions of the Mother or Grandmother, that the Mother provided credible and reasonable explanations for each of the injuries, and that, consequently, Nyla would not be placed in imminent danger of physical, mental, or emotional injury if she was returned to their care. The Mother's FCA §1028 application is, therefore, granted and Petitioner shall forthwith cause Nyla to be returned to her home.

This is the decision and order of the Court.

Dated: April 4, 2013____________________________________

Ann E. O'Shea, AJSC