In this child protective proceeding, the sole issue before the court is whether a suspended judgment should be entered on disposition in accordance with §1053 of the Family Court Act (hereinafter F.C.A.). The respondent mother and respondent father seek a suspended judgment to afford themselves the future opportunity to vacate the abuse finding that was entered by this court on April 29, 2014. ACS and the attorney for the children support a release of the children to the parents, but oppose a suspended judgment. ACS asserts that the serious abuse finding entered by this court should not be erased because of the possibility that the parents may seek employment involving children in the future. After a full evidentiary hearing, the court denies the application for a suspended judgment and the children are released to the care of both respondents under ACS supervision pursuant to F.C.A. §1052(a)(ii).

In support of his argument that a suspended judgment should be issued, the respondent father cites to Matter of Eric Z., 100A.D.3d 646 (2nd Dep't 2012). In that case, the Appellate Division reversed the Family Court's order of disposition denying the motion for a suspended judgment based on a very specific and distinguishable set of facts. In Eric Z., the respondents consented to findings pursuant to F.C.A. §1051(a) based on allegations that the then six month old child presented with a subdural hematoma and bilateral retinal hemorrhages and that the child's injuries were deemed inconsistent with the mother's explanation that the child sustained these injuries by falling off a bed. In support of their motion for a suspended judgment, the parents submitted letters from three doctors who treated the child after the alleged fall from the bed, all of whom stated that they did not believe the child's injuries resulted from abuse. Moreover, the parents submitted letters from two physicians, including a pediatric neurosurgeon, that opined the child had a medical condition known as benign external hydrocephalus which caused him to be susceptible to subdural bleeding from minor trauma. There is no such medical evidence here.

The respondents' case at the dispositional hearing consisted of each respondent's testimony. ACS rested on the court taking judicial notice of its Decision and Order After Consolidated Fact Finding and §1028 Hearing, dated April 29, 2014, and the report of the current caseworker, Sharon Belizairo. Ms. Belizairo's report includes letters from the children's general pediatrician stating the children are up to date on their vaccinations and in good physical health, a letter from the mother's therapist indicating her compliance with counseling, and parenting skills program completion certificates. Ms. Belizairo was fully cross examined on the contents of her report and her involvement with the family by respondents' counsel.

"The paramount concern in a dispositional hearing is the best interests of the child." Matter of Eric Z., 100 AD3d at 648 (citing to Matter of Lemar H., 23 AD3d 383, 384 (2nd Dep't 2005) [citations omitted]). The factors to be considered in making a determination on disposition include the parent's capacity to properly supervise the child based on current information and the potential threat of future abuse and neglect. Id. at 648. Another factor is whether the parent has admitted responsibility for their actions. Matter of Tamara D., 120 AD3d 813 (2nd Dep't 2014) (Family Court properly denied the application for suspended judgment where father failed to admit responsibility for his neglectful actions); Matter of Phillips N., 104 AD3d 690, 692 (2nd Dep't 2013) (Family Court did not improvidently exercise its discretion in denying the mother's motion for a suspended judgment at disposition "particularly considering the mother's failure to admit responsibility.")

In the instant proceeding, there is no dispute that the children, now two and three years old, are being properly supervised by the respondents at this time, and all the evidence at the dispositional hearing establishes that since April 29, 2014, the parents have continued to comply with ACS supervision, including announced and unannounced visits to the home. All parties stipulated to the fact that since the children were released to the care of the respondents approximately five months ago, ACS has not had any safety concerns about the care of the children that would warrant a modification of the children's legal status. See Stipulation dated September 3, 2014. All counsel also stipulated that both parents have completed parenting skills training and that both parents have engaged in individual therapy. The respondent mother continues to participate in individual therapy and the respondent father is not currently in therapy [*2]due to issues with his insurance coverage as well as his full time job for a water company which sometimes requires him to work weekends as well as week days.

The court notes that the subject children have been residing in the care of the respondents since this court granted the respondents' F.C.A. §1028 request on April 29, 2014. All parties agree that the children should remain in the care of the parents. While there are no immediate safety concerns for the subject children, there is a concern of the potential threat of future abuse and neglect in this physical abuse proceeding where an infant suffered serious injuries. This court entered findings of physical abuse against both parents based on a 44 day old, non-mobile infant, sustaining a femur fracture, followed by a skull fracture two weeks later, followed by unexplained bruising on the child's face and legs, and a torn frenulum that was deemed by the child's treating pediatrician to be "highly specific for child abuse." These findings were entered after twenty six trial dates, the testimony of eight witnesses, including four experts, and after the review of voluminous documentary evidence. To this date, neither parent has ever given an explanation for Maria's injuries. During the dispositional hearing, in response to a question about how it feels to have a finding of abuse, the mother testified: "I feel like it's not right" because "I never saw it," and "I didn't commit it myself...I don't know what happened."

The Appellate Division has noted that if the terms and conditions of a suspended judgment are complied with, the Article 10 petition is dismissed at the conclusion of the suspended judgment period despite the fact that a finding of abuse or neglect was made. Matter of Eric Z., 100A.D.3d at 648. F.C.A. §1052 and §1053 authorize the court to enter a suspended judgment on disposition, but do not provide for a vacatur of the finding. In Matter of Crystal S., 902 N.Y.S.2d 623 (2nd Dep't 2010), the Second Department noted that the dismissal of an Article 10 petition after the suspended judgment period is over does not vacate the underlying finding of neglect. However, the court has the authority to vacate its own findings pursuant to F.C.A. §1061 for "good cause shown." Matter of Araynah B., 34 Misc 3d 566 (Family Court Kings County 2011) (court granted suspended judgment where nature and duration of the underlying neglect, including allegations of educational neglect, leaving the children home without supervision and the prior use of marijuana, was not of sufficient magnitude to defeat respondent's motion); Matter of O, N, W, and H Children, 29 Misc 3d 1233(A) (Family Court Queens County 2010) (respondent's inability to obtain employment in a chosen field does not have a significant adverse effect on the children's best interest; mere speculation that the respondent will not be able to obtain employment is not sufficient good cause for modification under §1061).

In Matter of O, N, W, and H Children, the court noted that "[v]acating the findings would be an act of dishonesty by the court." 29 Misc 3d 1233(A) at 3. Matter of O involved a finding of neglect based on the mother's illegal drug use. This case involves findings of physical abuse, and vacating the finding is asking the court to pretend that the serious injuries to Maria never happened. The court notes that dismissal based on the aid of the court no longer being necessary is not even available in cases involving abuse allegations. F.C.A. §1051(c); See also Matter of Araynah B., 34 Misc 3d at 7 (stating that courts have considered the seriousness of the underlying acts of misconduct in evaluating allegations of derivative neglect and motions to dismiss on assertions that the aid of the court is no longer necessary). In Matter of Makynli N., 17 Misc 3d 1127(A) (Family Court Monroe County 2007), the court granted a suspended judgment in an Article 10 case that involved a finding of neglect against a father who missed or [*3]ignored the abusive behavior of his wife towards the children. The finding of neglect in that case was based on an act of omission on the father's part. That is not the case here.

The respondents' contention that a finding based on a res ipsa loquitor theory as opposed to a "direct finding" is unpersuasive. The fact that the parents maintain that they do not know how the injuries were sustained remains troubling to the court. This court found that both parents inflicted serious physical injuries on Maria. Maria did not inflict these injuries on herself and she did not suffer from an underlying medical condition that caused the injuries. This court cannot pretend that the injuries did not occur. Based on the facts and circumstances of this case, the court denies the respondents' application for a suspended judgment. The subject children are hereby released to the respondents under ACS supervision through July 8, 2015 under the following terms and conditions:

__________________________________

Hon. Lillian Wan