On August 28, 2014, the New York City Administration for Children's Services [ACS] commenced this abuse proceeding by filing a petition under docket NA-XXXXX-14, alleging that Athena Cross S. [respondent] derivatively abused Kashon S., her biological child (dob X/XX/11) [subject child] based upon her causing the death of Cardell W., a child for whom the respondent was a person legally responsible.

The facts underlying this matter have resulted in the within child protective proceeding brought here in Family Court, as well as a corresponding indictment of the respondent in the Criminal Court. Unchallenged evidence at this fact-finding hearing established the following background facts: the respondent became a licensed daycare provider in 2003; she provided daycare services to the child Cardell W. [Cardell] from March 28, 2014, until his tragic death on August 22, 2014; the respondent cared for Cardell Monday through Friday from a drop off at approximately 6:00 AM until a pick up between 6:00 PM and 8:00 PM when his father returned from work. The respondent cared for the child Cardell and the subject child Kashon in her apartment located at 1374 College Avenue, Apt 2B, Bronx, New York.

Upon filing of the petition on August 28, 2014, the subject child was remanded to the Commissioner of Social Services. The respondent did not appear. The court was informed that the respondent had been arrested and was being held. The court issued an order to produce the respondent, on September 8, 2014, the respondent appeared before the court, was assigned counsel, and entered a general denial to the allegations contained in the petition.

The petition alleges:

1. The respondent, ATHEENA S., was a person legally responsible for the care of the deceased child CARDELL J. W., in that she was a licensed child care provider for the child.

2. On August 22, 2014, Law Enforcement reported the child CARDELL J. W., was being cared for by the child care providers and began to vomit. It was further reported that the respondent took the child to be washed in the bathtub and that while in the tub the child went limp. That the daycare provider took the child out of the tub, placed him on the bed and called 911. The child was pronounced dead after arriving at the hospital. The child CARDELL J. W. did not have any preexisting conditions. It was further reported that the child's case of death was cardiac arrest.

3. Upon information and belief, the source being the DSS worker, the subject child KASON [sic] witnessed his mother, ATHENA S., as she slammed the deceased child to the floor and stood on the childs [sic] abdomen allowing her full body weight to rest on the child's torso and that she then proceeded to throw the child against the wall. As a result of these actions, the child CARDELL J. W. died.

4. On August 22, 2014 medical staff from Bronx Lebanon Hospital reported that the deceased child was observed to have burns to his right face, right shoulder, right upper arm, forearm and right chest, right shoulder blade and right foot. These burns appeared to be fresh.

5. Upon information and belief, the source being the Office of the Medical Examiner, the child CARDELL J. W. was found to have multiple skull fractures, blunt force trauma to the torso area and second degree burns to the right side of his body and ruled the death of the child to be a homicide.

6. Upon information and belief, the source being Assistant District Attorney and Detectives, the respondent gave multiple accounts as to the events of the day and one explanation was that she was wrestling with the child CARDELL J. W..

7. Based on the respondent's reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child CARDELL J. W. the child KASHON S. is derivatively severly [sic] abused and neglected.

On September 10, 2014, an amended petition was filed. The amended petition further alleged:

4. Upon information and belief, the source being Police from the 44th Precinct, the respondent provided approximately five different accounts of how the child CARDELL J. W. sustained his injuries and that at no time did the respondent acknowledge or offer any explanation as to how the child sustained second degree burns to most of the right side of his body. According to the police, the respondent did state that when the child CARDELL J. W. become [sic] incoherent she did shake him and yell no not now, not [*2]now I am going on vacation to Dorney Park. It was further reported that the respondent stated to Police that during the day they were all wrestling together and that her view was to "toughen Cardell up." She said that she put her foot on his chest as part of the wrestling and then threw the subject child KASON on top of the child CARDELL and put her foot on his back as well. The respondent also stated to Police that the child started to vomit after "play wrestling."

5. Upon information and belief, the source being Police from the 44th Precinct, the Office of the Medical Examiner reported that the child sustained two skull fractures, second degree burns to most of the right side of his body and that a substantial amount of blood was found in the torso area. The Medical Examiner found the respondent's explanations to be inconsistent and noted to Police that even if the child fell and hit his head on concrete it would not have caused the skull fractures and significant amount of blood found in his torso area. No other fractures were reported.

6. Upon information and belief, the source being the Office of the Medical Examiner, the cause of death for the child CARDELL J. W. is believed to be from blunt force trauma to the head and torso area.

The fact-finding hearing in this matter commenced on May 13, 2015 and continued on May 18, 2015; June 9, 2015; June 24, 2015; June 26, 2015; July 8, 2015; July 20, 2015; July 21, 2015; September 25, 2015; September 30, 2015; October 1, 2015; October 19, 2015; February 26, 2016; March 7, 2016; March 15, 2015; March 29, 2016 and April 8, 2016. At the conclusion of the fact-finding hearing counsel were directed to submit written summations and the matter was adjourned for the court's written decision. Those summations have been reviewed by this Court.

During the fact-finding hearing the court heard testimony from Dr. Michael Greenberg, a Medical Examiner employed by the Office of the Chief Medical Examiner; Detective Iris Bresciani of the New York City Police Department Homicide Squad; Detective Jason Baker of the 44th Precinct; Patricia Miller from the ACS Office of Special Investigations; and Dr. Thant Zin from Bronx Lebanon Hospital.

Exhibits entered into evidence included the Bronx Lebanon Hospital records for Cardell W. as petitioner's exhibit 1; the curriculum vitae of Michael Greenberg as petitioner's exhibit 2; the Medical Examiner case file for Cardell W. as petitioner's exhibit 3; photographs taken during Cardell W.'s autopsy as petitioner's exhibits 4-31; police-videotaped statements from the respondent as petitioner's exhibit 32 and 33; surveillance video of 1374 College Avenue as Attorney for the Child's exhibit 1; a 911 telephone recording from August 22, 2014, as AFC's exhibit 2; a transcript of the 911 recording as AFC's exhibit 3; and a photograph of Carlyle W.'s home as respondent's exhibit D.

According to the medical records from Bronx Lebanon Hospital, Cardell W. was born on December XX, XXXX, making him approximately twenty months old on August 22, 2014. On that date Cardell was transported from the apartment of the respondent to Bronx Lebanon Hospital with severe burns on the right side of his face and torso by Police Officer Flarhety. Cardell arrived at Bronx Lebanon Hospital at approximately 2:30 PM. He was pronounced dead at 3:04 P.M. Upon examination at Bronx Lebanon Hospital, the treating physician Dr. Zin noted that Cardell was in cardiorespiratory arrest, did not have vital signs and was not breathing spontaneously. Dr. Zin and Bronx Lebanon Hospital staff performed CPR on Cardell for approximately thirty two minutes with no response.

Doctor Michael Greenberg testified that he was employed by the Office of the Chief Medical Examiner of the City of New York for ten years. He received a Bachelor of Science Degree from Cornell University and a Doctor of Medicine Degree from Sackler School of Medicine. Dr. Greenberg attended a pathology residency training program at Mt. Sinai Hospital followed by a Fellowship in Forensic Pathology at the Office of the Chief Medical Examiner. He further testified that he is licensed to practice medicine in the State of New York and has board certification in Anatomic and Forensic Pathology by the American Board of Pathology.

At the time of the fact-finding hearing, Dr. Greenberg testified that he had performed approximately 2,000 autopsies. Approximately 100 of those autopsies were performed on children under the age of five. Dr. Greenberg was qualified as an expert witness in anatomic and forensic pathology without objection.

Dr. Greenberg conducted an autopsy on Cardell W. and prepared an autopsy report that was contained in the medical examiner's file entered into evidence as Petitioner's exhibit 3. The autopsy was performed on August 23, 2014, at approximately 12:00 P.M. A final report was issued by Dr. Greenberg on January 6, 2015, after additional testing which included histology, neuro-pathology, and anthropology, was completed.

The Office of the Medical Examiner ruled the manner of death to be homicide caused by blunt force trauma to the head and torso, certified by the death certificate entered into evidence as part of the medical examiner's file listing the cause of death as blunt force trauma to the head and torso.

Dr. Greenberg testified that there are guidelines that must be followed when conducting an autopsy. He detailed the appropriate medical protocol generally used and detailed the protocol he used in this autopsy. In the case of Cardell W., he reviewed reports provided by the New York City Police Department, ACS, and Bronx Lebanon Hospital records, where the child was treated prior to August 22, 2014. He reviewed transcripts of the 911 call and ambulance response report. He also reviewed an August 22, 2014 surveillance video of the entrance to 1374 College Avenue where Cardell's father dropped him off with the respondent on that morning, and a video-recorded police interview of the respondent. According to Dr. Greenberg's testimony, Cardell appeared to be acting like a normal boy when his father brought him to the respondent's apartment on that morning. The doctor testified Cardell did not appear to be in any pain or distress in the surveillance video.

Dr. Greenberg testified that he performed both the external and internal examination of Cardell W. on August 23, 2014. He examined tissues from thirteen different sections of Cardell's body: the heart, lung, liver, kidney, spleen, gastrointestinal tract, adrenal glands, skin, neck, thymus, lymph nodes, pancreas and eyes. He also sent sections of Cardell's bones for testing to anthropology. During the course of the autopsy photographs were taken of the child's body.

Dr. Greenberg concluded based on his autopsy that Cardell had suffered blunt force injuries to his head, torso and extremities, as well as either peri-mortem or post-mortem burns to his skin. He testified to observing two contusions or bruises under the scalp against the skull and skull fractures that had new bone formation, indicating that they were in the healing process. A majority of the skull fractures were located at the posterior section of the skull. Dr. Greenberg estimated that the skull fractures were between four and ten days old at the time of the autopsy. Cardell's torso had two contusions located on the abdominal cavity. There was also a contusion on his lower back. The abdominal cavity had 120 cubic centimeters or milliliters of liquid [*3]blood. Blood was also tracking through the soft tissue in the abdomen. He had a number of contusions and abrasions of the left upper extremity, left ankle and left leg. The burn marks Dr. Greenberg observed were located on the right half of Cardell's face, the right shoulder, the chest, the right arm and wrist and the right leg.

Dr. Greenberg testified that after he gathered all of the available information and conducted his autopsy, he determined the manner of death to be homicide caused by blunt force trauma to the head and torso. He did not find any evidence of natural diseases in the child.

At trial, Dr. Greenberg was posed the hypothetical question of whether the two contusions on Cardell's head could have been caused by dragging his feet along the floor while his head was hitting the floor. He responded that it was possible. He explained that if Cardell's feet were being dragged across the floor, his head could strike the floor at different angles and the impact could potentially result in contusions. This same mechanism of injury could have caused the skull fractures. Dr. Greenberg stated with a reasonable degree of scientific certainty that the skull fractures and contusions observed during the autopsy were caused by blunt force trauma. He testified that the skull fractures were a limited factor he was compelled to consider as contributory to Cardell's death.

Dr. Greenberg testified that in his opinion the burns were primarily second degree, meaning the epidermis had been destroyed and the dermis had been exposed but not destroyed. The burns appeared to be white to pale yellow. He stated that the burns were received either at the time of death or after the time of death. This was based upon his observation during the examination of Cardell that there was no indication of inflammation to the surrounding tissue. According to Dr. Greenberg, inflammation would be the body's natural response after being burned were the body functioning typically.

Dr. Greenberg stated that Cardell's burns were consistent with a child sitting in a bathtub with water, without the stopper being placed over the bathtub drain. The pattern on Cardell's body was what he would expect to see if water was splashing on the child's right side. He testified that the burn marks observed on Cardell were not the cause of his death.

Dr. Greenberg testified that Cardell had two contusions on the front of his abdomen, a 3/8" by 3/8" faint pink contusion on the upper right quadrant of the abdomen; a 1.5" by 1.5" red contusion on the left side of the abdomen; and a 3" by 2" purple contusion of the mid to lower back. Based upon the color of the contusions, Dr. Greenberg testified that the contusions were recent. He explained that older contusions would appear yellow to green. He testified that the time range during which the contusions were received was the last two days of Cardell's life to immediately before his death. When he pulled back Cardell's skin he observed hemorrhaging in the subcutaneous tissue immediately underneath the skin corresponding to the location of the three contusions.

Dr. Greenberg removed sections of the pancreas during his autopsy to look at the samples under a microscope. He examined sections of the pancreas because it is tissue located behind the abdominal cavity and he thought that this was where the hemorrhage was at its most dense which could indicate that it was close to the origin of bleeding. After further testing, Dr. Greenberg determined that the pancreatic hemorrhaging was fresh without any sign of inflammation or healing. He testified that based upon this observation, the bleeding occurred within a period of hours prior to Cardell's death. Assuming that the injuries to the child's skin occurred at the same time as the injury to his pancreas and bleeding into the abdomen, he stated that the entire spectrum of torso injuries occurred within several hours of Cardell's death.

Dr. Greenberg testified that the contusions on Cardell's abdomen were caused by the same injury pattern as the internal bleeding. He estimated that based upon the observed injury, Cardell lost between 200 and 400 cc's of blood, approximately 20 to 40 percent of the blood contained in his body. According to Dr. Greenberg, 40 % blood loss would ultimately lead to the death of a child whereas 20 % blood loss would result in decreased consciousness, decreased coordination or other severe symptoms. He observed that the bleeding he found in Cardell did not clot, meaning the blood had not been in the abdominal cavity for long. He estimated that if the blood had been there for a day or longer, he would have expected to observe some clotting. He further testified that the abdomen has nerve endings and bleeding into the abdomen is typically painful.

Dr. Greenberg further testified that a person with Cardell's injuries would not have had an appetite and would have been vomiting. In response to a hypothetical question posted by ACS, Dr. Greenberg stated that a child who was observed to have vomited, then shortly after could not sit on his own and kept slumping over and then could not stand and walk on his own and was unstable on his feet is more consistent with rapid blood loss.

Dr. Greenberg concluded from the significant amount of blood loss in Cardell's torso that the injuries to his torso and abdomen were the cause of his death. He further testified that the skull fractures he observed during the autopsy did not cause Cardell's death. In fact, they were at least four days old at the time he died. The doctor explained the difference between "contributing" and "acute" causes of death. The doctor testified that the head injuries contributed to Cardell's death because he could not ignore significant head injuries when ruling on the death of a child. He clarified that blunt force trauma to the torso was more acutely contributory to the cause of death, that it occurred more closely in time to the death of the child. He stated that the acute cause of Cardell's death was his abdominal injuries.

During cross-examination, Dr. Greenberg testified that he watched the video of two people identified as Cardell and his father entering the respondent's apartment building on August 22, 2014. He testified that in the video, Cardell appeared to be a normal boy with no observable neurological issues or major deficits. Both Cardell and his father appeared to have a normal activity level and neither appeared sluggish. In the video, the child did not need to be carried and appeared normally mobile according to the doctor.

Detective Iris Bresciani testified that she had been a detective with the New York City Police Department since 1999 and prior to that had been a police officer for seven years. She testified that on August 22, 2014, she was notified of an infant fatality and responded to Bronx Lebanon Hospital. After traveling to the hospital, Detective Bresciani testified she went to the 44th Precinct Detective Squad, where she spoke to the respondent. She testified she interviewed the respondent twice- once on August 22, 2014, with Detective Baker and then subsequently on August 23, 2014, with Assistant District Attorney Gina Torres. During cross-examination, Detective Bresciani acknowledged that she interviewed the respondent a third time during the early morning hours on August 23, 2014 just to clarify the time line of events leading to Cardell's death.

Detective Bresciani testified that the interviews on August 22, 2014, and August 23, 2014, were videotaped. The videotaped statement from August 22, 2014, was entered into evidence as petitioner's exhibit 32. She testified that due to technical difficulties the recording stopped after two hours and forty two minutes. The videotaped statement from August 23, 2014, was entered into evidence as petitioner's exhibit 33.

During both the initial video interview (August 22, 2014) and the subsequent video interview (August 23, 2014), the respondent gave multiple and conflicting accounts of the events that unfolded during the morning of August 22, 2014.

During the initial video interview, the respondent described the events of the morning of August 22, 2014. She stated that Cardell was dropped off at her apartment by his father every morning at 6:00A.M; that Cardell stayed with the respondent until approximately 6:00-6:30P.M; that on August 22, 2014, at approximately 8:30 A.M., both Cardell and the subject child Kashon fell asleep at her residence; that the subject child and Cardell woke up at around 10:00 A.M. while the respondent was at the store; and that at around 11:00 A.M, the respondent fed Cardell and Kashon bacon, eggs, and toast. The respondent said that at approximately 12:28 P.M. Kashon alerted the respondent that Cardell was vomiting. The respondent stated that she went to her bedroom and observed Cardell trying to get up, but he was unable to do so; that Cardell was lying on his stomach and appeared as if he was falling asleep; that she placed him on the floor on his back propped up against the wall; and that she sat Cardell up. The respondent stated that she decided to place him in the bathtub and run cold water over him to wake him up; that he could not sit up and she leaned him against the side of the tub near the faucet. She stated that when a toilet in her apartment is flushed, the water in the bathtub turns from cold to hot. The respondent said that she noticed that the water had turned hot and she took Cardell out of the bathtub and that after she took him out of the bathtub, he was unresponsive. The respondent stated that her mother grabbed Cardell out of her hands and began to perform CPR on him and that while her mother was performing CPR, the respondent observed mucus coming out of Cardell. The respondent stated that he then began vomiting through both his nose and mouth.

In response to Detective Bresciani's questions at this point, the respondent indicated that she placed him in the bathtub at approximately 1:43, 1:45 P.M. and that after she took Cardell out of the bathtub, she carried him to her room and laid him on the bed. Respondent said that when her mother realized Cardell was not responding, she grabbed him from the respondent's arms. Respondent stated that while her mother was performing CPR, she was on the telephone with a 911 dispatcher and that the police responded to her apartment. When Detective Baker stated to the respondent that she had not been truthful in her account of what happened, the respondent then stated she had been playing with Kashon and Cardell during the morning of August 22, 2014. Respondent stated that Cardell and the subject child wanted to play cowboys so she gave them hats and tied a small rope around their legs. Later on she described how she would pull them around the apartment. In response to the questions from Detective Bresciani and Detective Baker, the respondent admitted that she picked up Kashon and Cardell by the leg, swung them, and threw them on the bed. The respondent stated that she did not "play too much with him [Cardell] today." Further into the same interview on August 22, 2014, the detectives asked the respondent for a time line regarding what happened after Cardell was brought to her apartment on the morning of August 22, 2014. The respondent stated that Cardell was dropped off by his father at 6:09 A.M. and that the subject child was already awake. The respondent stated that Cardell decided to lie down on a mat and both Kashon and Cardell fell asleep at approximately 8:30 A.M; that she then went to the bathroom to "wash up;" that her mother woke up around 10:00 A.M; that she went downstairs to go to the store and spoke with her cousin; that at approximately 10:39 A.M. she went back upstairs to her apartment; that when she came back upstairs Cardell was still lying down on his mat and the subject child was sitting; that she woke Cardell up; that she played "wrestling" with Cardell and Kashon on her bed; that respondent's [*4]mother walked into the bedroom and asked her to make some eggs for the kids; that Cardell and Kashon remained in the bedroom, then went to the living room, where Cardell sat down; that the respondent gave Cardell a piece of bacon and eggs; that she went back into the kitchen and observed Cardell eating his food; that she observed Cardell and the subject child playing in the living room and she went to make the bed and straighten up her room at approximately 12:00 P.M; that Kashon jumped on her back and she wrestled with the subject child and with Cardell by flinging Kashon over her back onto the bed and onto Cardell who was face up on the floor; that when Cardell was on the floor the respondent took her foot and tapped Cardell three times on the stomach and said "I win"; that she then placed the subject child on top of Cardell and stated "I beat both of y'all, you know what I am saying." The respondent stated that at that time Cardell began to cough.

The respondent stated that she took Cardell to the kitchen to give Cardell something to drink. She said that Cardell drank the water but it kept coming out of his mouth and running down his clothes. The respondent then described Cardell as acting as if he were "drunk," and said that he was unable to walk normally. The respondent stated that when she asked him what was wrong he replied "ahh" and she described Cardell's eyes as cloudy and unfocused, "like he wasn't there." She said he then became unresponsive. Respondent stated that when she tried to sit Cardell down he kept leaning and did not sit up; that she took him to the sink and put water on his face but that Cardell was fighting her off, attempting to get the water off of his face. She stated that she wiped his face and then tried to get him to stand up but he kept falling down. The respondent stated to the detectives that she began panicking and stating "What the fuck's wrong?" to Cardell at that time. She said that she took all of Cardell's clothes off and put him into the bathtub. She said that Kashon asked if he could go into the bathtub and the respondent let him enter the bathtub. The respondent acknowledged that she stated "....not the fuck today little boy. What the fuck? I want to go away this weekend." She stated that she removed a medical chair that was in the bathtub and put it outside of the bathroom and when she came back into the bathroom a few seconds later, both children were in the tub. She stated that Cardell was in the front near the faucet and the subject child was in the rear. She said she observed that Cardell's head was face down between his legs under the water. She said she noticed steam, which indicated to her that the water had become hot. She stated that she took Cardell out of the bathtub, took him to her room, and that her mother snatched Cardell out of her hands while she called 911. She stated that she left the subject child in the bath tub. During this incident the respondent admitted she was thinking "This shit don't happen to me. It's Friday. I just wanted to cook and leave tomorrow. You know what I'm saying? That's all that was on my mind-out of here tomorrow." The respondent then clarified that she took Cardell and placed him on her bed, turned around to find a towel, and then took Cardell to her mother's room. She reiterated that her mother grabbed Cardell while she called 911. She said that when her mother picked Cardell up and put him over her shoulder, eggs and other fluid began coming out of his mouth and nose. She said that the police responded to the 911 call, took Cardell, and left the apartment.

The respondent informed the detectives that when Cardell came to her house on August 22, 2014, he was his normal self. She further responded that Cardell appeared to be fine until she began wrestling with him. She stated that from the time they were wrestling until he was put in the bathtub ten to fifteen minutes had elapsed because she thought Cardell was just tired.

On August 23, 2014, the respondent gave a second recorded statement to Assistant District Attorney Gina Torres [ADA] and Detective Bresciani. She informed the ADA and [*5]detective that on August 22, 2014, Cardell came to her apartment at 6:00 AM. The respondent stated that the subject child and Cardell watched cartoons from 6:00 AM until approximately 8:00 AM when both children started to fall asleep; that she went to have coffee after both children had fallen asleep; that at around 10:00 AM she left the apartment to go to the store; that she came back to her apartment at 10:39 AM. and found Kashon awake and Cardell still asleep. She stated that she woke Cardell up and that she and the children did a little dance that they do every Friday and that Kashon and Cardell went to the living room and began to play. The respondent said that she cooked eggs for the children and that Cardell was eating his food but not swallowing it. She said she then had a telephone conversation with Kashon's godmother during which he was jumping on the respondent's back while Cardell positioned himself between her legs. She stated she picked up the subject child by one leg and threw him on the bed and then did the same to Cardell. She stated she picked up Cardell and threw him on the floor and tapped him with her foot and said "one, two, three. I won" and that she then took Kashon and placed him on top of Cardell and did the same thing with her foot. She stated she noticed that Cardell had a mouthful of food and that he was trying to put it back in his mouth. She said that she took the food out of his mouth and noticed that Cardell had a split lip, that he struggled to get up and that when he was able to do so he went to the living room. The respondent stated that she stayed in her bedroom, made her bed and turned the television on to watch the news and that while she was in her bedroom, Cardell was in the living room watching television. The respondent stated that Kashon went into his grandmother's room and the grandmother was feeding him cheese while Cardell was in the living room. She stated that Kashon was brining cheese to Cardell to eat. According to respondent, at 12:28 P.M. the subject child came into the grandmother's room and stated Cardell was spitting up. She stated that she went to the living room and Cardell was lying down and there was a "mess of throw up." She said she picked Cardell up out of the vomit and sat him up, then took him into her bedroom and cleaned the vomit with a towel. She stated that she then observed Cardell falling asleep. She said that she took Cardell to the kitchen, turned on the cold water and put cold water on his face and then gave him some cold water to drink. The respondent said that he smiled and then water began coming out of his mouth. According to her statement, Cardell's eyes appeared tired, as if he was going to sleep. She stated that she stood him up near the sink and he took two steps and fell; that he got up slowly and was grunting; that she grabbed Cardell's hand and started walking with him, but he was unable to walk. She described him as "like a rag doll." She said she put him on her bed and took all his clothes off. She said she considered calling 911, but instead decided to put Cardell in the bathtub hoping that the cold water would wake him up and shock him. She stated that she placed him in the bathtub and turned on the cold water and wet his face.

The respondent stated that Kashon came into the bathroom and asked to come into the tub and that she gave him permission to come into the bathtub with Cardell; that she removed a medical chair that was in the bathtub and placed it right outside of the bathroom; that when she turned back around the water was steaming hot, adding that the water in her building would go from cold to steaming hot whenever anyone in the building flushed their toilet. Respondent stated that when she saw the water steaming, Cardell's body was "slid over." She further stated that she picked him up, put him over her shoulder and took him to her bed; that she then noticed that Cardell's body was burned; that she then brought him to her mother and said "Cardell is not responding"; that her mother snatched Cardell out of her hands, went into the respondent's room and began performing CPR on him; that she called 911; that when her mother started performing [*6]CPR, mucus came out of Cardell's nose; that her mother then took him over her shoulder and started patting him and that fluid began coming out of his nose and mouth. The respondent said that the police responded to the 911 call; that the officer grabbed Cardell and ran out of her apartment; that she ran out the door after the police officers; and that the police officers transported Cardell to the hospital with the respondent.

The respondent informed the ADA that she had a queen size bed in her bedroom that was placed against the wall. She described playing with Cardell and the subject child by picking them up and throwing them on the bed. She stated that with Cardell, her habit was to lift him over her head and throw him on the bed sometimes flipping him over. She stated that she normally did not put him on the floor with Kashon on top of him and tap them with her foot. She stated that normally she used her elbow to tap Cardell and Kashon. She said that Cardell made the sound "ahhh... like he was, like Kashon was too heavy." (The respondent later informed the detectives that Kashon was around thirty-five pounds). The respondent said that when she took Kashon off of Cardell, she noticed he (Cardell) had food in his mouth; that she picked him up by the arms and took the food out of his mouth; that she noticed his lip was bleeding and she put hairdressing grease on his lip. She clarified that when Cardell was on the ground she "....stomped on, tapped him, because I didn't stand up like...." she stated that Cardell went into the living room and started watching television. She stated that she noticed that Cardell looked like he was in pain; that he was getting up slowly and grunting. The respondent stated to the ADA that prior to that he was acting normally.

When asked about the time line of events on the morning of August 22, 2014, the respondent told the ADA that she fed the subject child and Cardell breakfast around 11:00 AM to 11:15 AM and began wrestling with the children around 11:30-11:40 AM. She estimated that she put Cardell in the bathtub around 1:25 or 1:30 PM. She stated that they left for the hospital around 2:02 PM.

The respondent told the ADA that she was trying to teach Cardell to "fight back and take his stuff back from people." She stated to the ADA that she had instructed Kashon not to play rough with Cardell because he was too big to do that. She described Cardell as delicate, and stated "if you hold him too long he gets a bruise."

Detective Bresciani testified during the Attorney for the Child's case in chief. She testified to having been employed by the New York City Police Department for over 23 years and having been assigned to the Bronx Homicide Unit since July 2008. As a member of the Bronx Homicide Squad, Detective Bresciani testified that she assists case detectives in conducting investigations to ascertain what led to a person's death. She became involved in the case of Cardell W. after receiving a telephone call from Detective Kennedy on August 22, 2014, informing her that there was an infant fatality within the confines of the 44th Precinct.

Detective Bresciani testified that she responded to Bronx Lebanon Hospital, arriving at the hospital at approximately 4:30 P.M. Detective Bresciani said that she observed Cardell's body and saw burn marks on the right side of his body and back; that she met Carlyle W., the father of Cardell, at the hospital. She testified that she did not question him at the hospital because he appeared distraught, having just been informed of the death of his son. She testified that Carlyle W. was crying and was very loud, appearing angry and distraught.

Detective Bresciani testified that a determination was made to bring the respondent to the 44th Precinct because Cardell had received burn injuries while in her care. She wanted to question the respondent about how Cardell was burned. She testified that she took a videotaped [*7]statement from the respondent at the precinct. After the videotaped statement, the respondent was arrested on charges of reckless endangerment. On August 23, 2014, Detective Bresciani attended Cardell's autopsy and learned of additional injuries that she had previously been unaware of when she had questioned the respondent the day before.

On August 23, 2014, after Cardell's autopsy, Detective Bresciani questioned Cardell's father. She testified that Mr. W. informed her that two weeks before August 23, 2014, he picked up Cardell from the respondent's home and observed him to have a black eye and lumps on his head. He told her that it appeared to him as if Cardell had been in a boxing match. Detective Bresciani testified Mr. W. stated he followed up on the incident with the respondent, was told that the child fell in the kitchen, and that he expressed skepticism about the cause of the injury. Mr. W. was not questioned by Detective Bresciani until after the respondent had been questioned twice; Detective Bresciani did not question the respondent subsequent to learning this information from Mr. W.. On cross-examination, Detective Bresciani admitted that the questioning of Carlyle W. was only for a ten to fifteen minute time period and was not recorded on a DD5 or in her notebook. Mr. W. was not questioned or asked about the fractures to Cardell's skull. The hearsay statements of Mr. W. were not taken for the truth, but for the limited purpose of informing the steps taken in the course of the police investigation.

Detective Bresciani testified during cross-examination that Carlyle W. was never a suspect or person of interest during the police investigation. She also testified during cross-examination that she did not speak to any relatives of Mr. W.. Detective Bresciani said that she was aware that a child named Isliel Hayward Barnes had informed the press that he observed Cardell duct taped and dead on the respondent's couch, and that his account turned out to be discredited. Detective Bresciani did not speak to the respondent's mother during the course of her investigation. She acknowledged she never went to the respondent's home to observe the condition of her apartment. She said that she did not raise the issue of Cardell's head injuries during her interview of respondent on August 22, 2014 although she was aware that during the 911 call, the respondent said that Cardell had slipped and fallen in the bathtub and had bumped his head.

The respondent's 911 call recording on August 22, 2014, was entered into evidence on September 30, 2015, upon stipulation of counsel. A written transcript of the 911 call was entered into evidence as AFC's exhibit 3, also on the consent of all counsel. During the 911 call, the respondent requested that the dispatcher send an ambulance to her apartment located at 1374 College Avenue, Apt 2B, Bronx, New York. She stated she had a baby in her care who had vomited. The respondent said that she "went to put him in the tub to wash him up, he slipped, he fell, he bumped his head and now he is not responding to me."

A videotape of Carlyle W. bringing Cardell into the respondent's apartment building at 6:15 AM on August 22, 2014, was entered into evidence upon stipulation of counsel. The video was played in court. The father can be seen leaving the apartment building at 6:17 AM. In the video, Cardell does not appear to be in any pain and appears to have a normal activity level. In the video, Mr. W. is carrying Cardell down the street to the entrance of the respondent's apartment building. When Mr. W. and Cardell arrive at the respondent's apartment building, Cardell is standing without any assistance. Throughout the video, it does not appear as if Cardell is in any noticeable distress or pain.

Detective Jason Baker testified that he was employed by the New York City Police Department and worked in the 44th Precinct Detective Squad since January 2005. He testified [*8]that he was assigned as the case detective to investigate the death of Cardell W. on August 22, 2014. Detective Baker said he responded to Bronx Lebanon Hospital at approximately 2:50 P.M. with Detectives Rivera and Kennedy. He said that he called the Bronx Homicide Squad to assist in the investigation. He testified that his role in the investigation was to speak with the doctor and to check on the status of the child. He testified that Dr. Zin informed him that Cardell had severe burn marks on his body and had died. He testified to observing Cardell lying on a gurney in the hospital with severe burn marks and bruising on his body and he described what he had seen.

Detective Baker testified that he spoke to persons gathered at the hospital, including a relative of the respondent, and a relative and friend of Cardell's father. He testified that the two parties connected to Mr. W. told him that Mr. W. had expressed his concern to them about injuries he observed to Cardell while in the care of the respondent. These hearsay statements were not taken for their truth but for the limited purpose of providing context to the steps taken by Detective Baker in the course of his investigation.

Detective Baker testified that Detective Kennedy interviewed the respondent at the hospital. He testified that at approximately 5:57 P.M. he observed Cardell's father in the hospital. He introduced him to Dr. Zin who informed him that Cardell had died. He testified Mr. W. let out a loud screech, he spun around into the wall and placed his hand on his face to prevent anyone in the room from seeing him crying. He then slid down the wall and collapsed onto the ground in a fetal position. Detective Baker asked Mr. W. if he was the father of Cardell and asked him to produce identification but did not ask him any further questions because he appeared despondent and distraught and was crying hysterically.

Detective Baker testified that the respondent and her mother were brought to the precinct for questioning. He testified that on August 22, 2014, he and Detective Bresciani interviewed the respondent. Before interviewing her, he was able to listen to the respondent's 911 call. According to Detective Baker, the 911 call was made at 2:17 PM.

Detective Baker testified that the videotaped interview of the respondent lasted for three hours and that while he was interviewing the respondent, Detectives Kennedy and Rivera were with crime scene personnel at the respondent's apartment. After he interviewed the respondent, he testified that he went to Jacobi Hospital to meet Dr. Greenberg from the Medical Examiner's office. The doctor informed him that Cardell died after suffering blunt force trauma to the head and torso. After receiving this information, he spoke to ADA Torres who agreed to meet him at the precinct. He testified that the respondent was arrested and charged with manslaughter.

Detective Baker testified that he reviewed video from the front of the respondent's building and determined that Carlyle W. was being truthful regarding his account of what happened on the morning of August 22, 2014. He also testified that based upon the video it did not appear as if Cardell was injured when he was brought to the respondent's home that morning.

Respondent called two witnesses on her case in chief. ACS Child Protective Specialist supervisor Patricia Mitchell testified. She was attached to the Office of Special Investigations, assigned to this case because the death involved a licensed childcare provider. Her testimony consisted primarily of two home visits she attempted as part of her internal investigation; one to the home of Carlyle W., Cardell's father, and one to the home of the respondent. Little substantive information relevant to the issues and parties before this court in this proceeding was elicited. No exculpatory evidence related to the respondent was elicited through this witness. The focus of the questioning and cross-examination was quite narrow, as was the witness's [*9]involvement in the case. The testimony of this witness did not have any material impact on the court's determination of this matter.

Respondent's second witness was Dr. Thant Zinn, a treating physician of the deceased child when brought into the Bronx Lebanon Hospital emergency room on August 22nd. Respondent called Dr. Zinn as a fact witness. His testimony was also very narrow, limited by objection to factual observations he made of Cardell at the emergency room. As the Bronx Lebanon Hospital records were in evidence (Pet's 1) the court gleaned substantial information regarding the medical condition of the child at the time he was brought to the emergency room from those records. Dr. Zinn's testimony did not provide any exculpatory evidence on behalf of the respondent. No relevant portion of the Bronx Lebanon Hospital record was impeached through his testimony. The testimony of this witness did not have any material impact on the court's determination of this matter and he gave no opinion as he was not offered as an expert witness.

Family Court Act §1012(e)(I) defines an abused child as a child less than 18 years old whose parent or person legally responsible for his or her care "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 function of any bodily organ."

Proof of abuse or neglect of one child is admissible on the issue of abuse or neglect of another child. FCA §1046[a][I]. Derivative findings of abuse may be "predicated upon the common understanding that a parent whose judgment or impulse control are so defective as to harm one child in his or her care is likely to harm others as well." (Matter of Marino S., 100 NY2d 361[2002]). Petitioner has the burden of proving abuse by a preponderance of the evidence. FCA §1046(b).

Pursuant to Family Court Act §1046(a)(ii), "proof of injuries sustained by a child or of the condition of a child of such nature as would not ordinarily be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for 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." Once the petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to the respondent to rebut the evidence. Matter of Philip M., 82 NY2d 238, 244 [1993]. In determining whether the petitioner has made out a prima facie case, the court must view petitioner's evidence as true and draw every reasonable inference in favor of the petitioner. (See Harding v Noble Taxi Corp. 182 AD2d 365 [1st Dept 1992] [for purposes of determining whether petitioner established a prima facie case, petitioner's evidence must be accepted as true, and must be given the benefit of every favorable inference which can reasonably be drawn from that evidence]; Velez v Goldberg 29 AD3d 780 [2d Dept 2006]).

Once petitioner has established a prima facie case, the respondent may present evidence to rebut the presumption by showing, for example, that the child was not in the respondent's care at the time the child was injured or that the injury or condition could reasonably have occurred accidentally. Although the burden of proof always remains with the petitioner, the respondent has the burden of going forward as to such a rebuttal. (See Matter of Philip M. 82 NY2d 238 [1993] [after a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. Once a prima facie case has been established a presumption of responsibility arises but this refers to a [*10]presumption which is evidentiary and rebuttable whether by respondent's own testimony or by any other evidence presented during the case.]; see also in re Jaiden T.G. 89 AD3d 1021 [2d Dept 2011]).

The court credits the testimony of Dr. Greenberg, Detective Bresciani and Detective Baker, and finds their testimony credible, and in the case of Dr. Greenberg, expert. The court draws a strong negative inference from the failure of the respondent to testify; and finds that the respondent has failed to rebut petitioner's prima facie case of abuse. Furthermore,the court finds by the evidentiary preponderance standard that the petitioner has sustained its burden of establishing that respondent has derivatively abused her child Kashon S. by the infliction of injuries on the child Cardell W., which resulted in the fatality of that child.

This Court's determination relies on several factors, including the expert opinion rendered by Dr. Greenberg attributing the acute and proximate cause of Cardell's death to the severe torso injuries found on the body of Cardell, along with providing a time-line of those injuries; the unchallenged testimony of Dr. Greenberg and other witnesses, as well as the observation of this Court, that the child appeared to be without injury or disability of the type he was found to have at autopsy when he was placed into the care of the respondent Athena S. on the morning of August 22, 2014; and the respondent's own admissions within the videotaped statements she gave to police investigating the child's death combine to leave no doubt in this Court's judgment that Ms. S. was responsible for inflicting injuries on Cardell severe enough both to have caused his death and to render her accountable under the statute for the derivative abuse of her own child Kashon, the subject child herein. Additionally, the direct physical presence and exposure of Kashon during the actions of Ms. S. which resulted in the death of the child Cardell, as well as the inconsistent and wavering statements made by the respondent contained in the videotaped statements she gave police and law enforcement officials, were both relevant to this court's finding of derivative abuse of Kashon.

The court gives significant weight to Dr. Greenberg's expert opinion that the abdominal internal bleeding likely occurred in a short range of hours leading up to Cardell's death. Dr. Greenberg clearly testified that he did not see any evidence of clotting with regard to the abdominal bleeding and that it was indicative of fresh hemorrhaging. Cardell had been in the care of the respondent for at least seven hours prior to being rushed to Bronx Lebanon Hospital and ultimately being pronounced dead. Such a time-line establishes that the child was in the virtually exclusive care of Athena S. when sustaining the injuries that Dr. Greenberg unequivocally testified were caused by blunt force trauma to the torso and were the acute cause of death.

The unrebutted testimony of the expert and other witnesses describing Cardell's unremarkable physical condition at the time he was placed in the physical care of Ms. S., contrasted with the injuries to the body detailed in the Bronx Lebanon Hospital record and the autopsy report of examinations completed proximately to the injuries occurring, further bolsters the determination of culpability of the respondent.

Additionally, beyond the negative inference the Court takes by the respondent's failure to testify within this proceeding, the videotaped statements of respondent entered into evidence serve to substantially self-implicate Ms. S. in the actions leading up to the death of Cardell. Her statements corroborate that this twenty month old arrived at her home on August 22nd 2014, in typical, unremarkable physical condition. Her statements underscore that when she first encountered Cardell in the morning, he did not display any of the physical symptoms that [*11]respondent would attribute to him as the day continued. Her statements attest that on the day in question, the child displayed no discomfort or signs of distress until hours had passed spent in the care of the respondent. In fact, the respondent stated that the child appeared fine until she began "wrestling" with him and only then did she notice that he had a split lip; was coughing and throwing up; was unable to walk; appeared limp like a "rag doll" and over time, became unresponsive.

Moreover, the respondent rendered several varying and inconsistent accounts of what happened on August 22, 2014, leading up to the death of Cardell. These inconsistencies directly undermine her credibility. The respondent held back details of the events of the day until directly probed by the police officer or ADA conducting the interviews, and then offered more or less facts each time the story was recounted.

Two videotaped interviews/statements were entered into evidence, taken on consecutive days, August 22, 2014 and on August 23, 2014. There are inconsistencies both in the statements given in the interviews from one day to the next and within each day's statements. It is not until approximately the third recounting of the day's earlier incidents; and only after a police officer interviewing Ms. S. challenges her veracity, that she discloses anything about the wrestling' activity, which is central to Cardell's fatal injuries. And it is primarily during the second day of interviewing that the respondent provides further details about Cardell's physical deterioration after "wrestling." Details vary throughout the two sessions about whether Kashon was in the tub when Cardell entered or whether he entered the tub after Kashon. The respondent provided multiple and inconsistent accounts regarding the sequence of events. The respondent gave multiple and inconsistent statements regarding the amount of time that elapsed from the commencement of the wrestling' incident to the time that the respondent placed the child in the tub and regarding the time that the respondent placed the 911 call.

Finally, the information provided by the respondent in her 911 call differs so drastically from the information provided during her videotaped statements, the court does not credit the bulk of her exculpatory statements. The respondent's statement to the 911 dispatcher that Cardell slipped and fell and hit his head in the tub is never reiterated by the respondent during the two days of interviews. In fact she stated that he could not even sit up when she placed him in the tub, that he was slumped over and had to be leaned against the side of the tub.

Ms. S.'s description of the activities in which she engaged with these children and the care that she provided to this twenty month old, even taken at face value as true rather than self-serving, provides a chilling picture of physically abusive and negligent behavior. Further, the respondent's internal inconsistencies and attempts to minimize the inappropriate nature of her behavior while caring for these children undermine her credibility.

The Court does not find credible the respondent's account of what transpired immediately before Cardell began to experience acute distress. The events that transpired immediately precipitating the onset of the child's symptoms, as told by the respondent, do not explain how this child sustained blunt force trauma to his torso, which resulted in contusions on his back and abdomen, massive internal injuries, internal bleeding, and eventually, his death. At the very least, the respondent minimized and misconstrued the events that caused these fatal injuries and, more likely, entirely left out the culpable acts which caused the child to sustain these internal injuries.

Regarding the other substantial injuries established as occurring to Cardell beyond the [*12]torso injuries; the skull fractures and the burns, the court credits the testimony of Dr. Greenberg that the acute cause of death was abdominal bleeding and that the primary cause of Cardell's death was blood loss consisting of between 20% and 40 % of the blood in Cardell's body. At the time of the autopsy, the skull fractures were four to ten days old and were already in the healing stages. Those fractures do not play a significant role in the Court's reaching its determination. Nor do the burns suffered by the child, established to have occurred peri-mortem or post-mortem, play a significant role in the Court reaching its determination.

The respondent failed to refute the evidence that Cardell's abdominal bleeding occurred within hours before his death. Moreover, the respondent failed to present any evidence that Cardell had suffered from any accidental trauma that caused his death. On the basis of the evidence presented, the court finds that the injuries suffered by Cardell were inflicted upon him while in the care of the respondent.

The court finds that respondent's actions amply demonstrate her flawed understanding of the duties of parenthood such that any child placed in her care would be in imminent danger to their emotional and physical well-being. While there is little doubt by this court that respondent's statements to the police were a feeble attempt to minimize the nature and extent of the inappropriate and violent nature of respondent's interaction with these children, the admissions made within her videotaped statements of taking a twenty-month-old child by the arm, throwing him on the bed, and on the floor and throwing the subject child Kashon on top of him demonstrate a fundamental flaw in her judgment. The inclusion of Kashon in these activities placed him at direct risk of physical harm and further supports a finding that he is a derivatively abused child.

Beyond the physical component of respondent's abuse of Cardell, this court finds that the respondent's severely flawed judgment also contributed to the death of this child. Despite respondent's observations of Cardell's severe physical distress, the respondent waited over two hours before calling 911 to get Cardell the medical attention he needed. Expert testimony established that the child was internally bleeding to death in the hours before the respondent called 911. But instead of calling 911 earlier, the respondent panicked, splashed cold water in Cardell's face and put him in the bathtub in the hope that it would wake him up. A reasonably prudent caretaker observing a twenty-month-old child unable to swallow, sit up, stand, or walk without assistance, seeming "drunk" or "like a rag doll" should have immediately called 911 and gotten the child emergency medical treatment.

The injuries that led to Cardell's death were the result of inflicted blunt force trauma to his torso at the hands of the respondent. But beyond those heinous acts, the respondent's poor judgment in the aftermath of those events, further move the court to find that Kashon S. was a derivatively abused child.

Based upon the foregoing, the court enters a finding of derivative abuse. The matter is set down for disposition on October 21, 2016.