An Article 10 proceeding was filed on behalf of .Y S. ; D. S. and A. T. against Johanna A., Vicente S. and Christen G. Ms. A. is the mother of all three children, Mr. S. is the father of Y. and D. and Ms. G. was the wife of Mr. S. It was alleged that the child Y. suffered numerous injuries while in the care and custody of these Respondents. Testimony was taken on June 12, 2014; July 23, 2014; August 12, 2014; October 21, 2014; December 2, 2014; May 19, 2015; August 4, 2015; October 5, 2015; and January 12, 2016 with Respondents requesting to submit written closing arguments. Summations were given or submitted to the Court on or about May 17, 2016 at which time the Court reserved decision.

Testimony was presented by the Petitioner through the following witnesses: Dr. Frank C. and Sarah Z.. Respondents each testified on their own behalf. Although the Attorneys for the Children did not produce any separate witnesses, they actively participated in the examination of witnesses and evidence.

This Court, based on its unique opportunity to evaluate and observe the demeanor, credibility, temperament and sincerity of each witness and to review the pertinent statutes, case law and evidence entered in the Trial, makes the following Findings of Fact and the Law:

Family Court Act Section 1012(c) defines "abused child" as follows:

"Abused child" means a child less than eighteen years of age whose parent or other person legally responsible for his care . . .

(i) 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

(ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause 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 . . .

The testimony at the trial showed that an inordinate number of injuries occurred to this child during periods of time while in the care and custody of these Respondents. Dr. Frank C. indicated that he met the child in the Emergency Room on or about October 11, 2013. He observed Y. to have injuries consistent with non-accidental trauma. Specifically, he recalled that the child had healed scars on the front of his chest in different areas, that the marks were of an oval shape and that there was a "similar pattern across the chest". He felt that these marks were "more in the line of a healing wound" and were "more consistent with a burn ...or blunt trauma". He also stated that the "distribution of injuries is not consistent with an accident" and that "each of the injuries would be very painful to the child". It was his opinion that these injuries were at least one month old and possibly more. Splash burn marks on the child also appeared to Dr. C. as over one month old as well. When he spoke to Mr. S., Mr. S. indicated that he noticed the injuries when he picked the child up for a visit. Dr. C. also indicated that each of these injuries [*2]were "not consistent with a fall injury". As a result of his observations of the marks on the child's chest, Child Protection Services was contacted. However, the child was cleared to leave the hospital with his father. There was no wound care necessary after discharge and although the child was not likely to succumb from these injuries they would be disfiguring to the area of the skin where they were located.

Sarah Z. indicated that she was assigned to investigate two reports connected to this family. One of the allegations by Mr. S. was that the child had been burned by Ms. A. He thought that they were cigarette burns. He was instructed to take the child for medical care. Ms. A. told Ms. Z. that the injuries happened when Y. fell on a metal pole but could not explain why there were at least four marks on the child. A subsequent report had been made by mandated reporters after the child had been physically examined.

Even after there was a medical report to the contrary, Ms. A. continued to insist that the injuries were from an accident. Mr. S. indicated that the age of the injuries precluded him as the perpetrator as he had been in prison and then had very limited access thereafter. His wife at the time, Christen G., repeated that these injuries happened while Y. was in his mother's care and not theirs.

A previous investigation occurred in July 2013 and was unfounded. There were no notes as to these injuries although Ms. A. insisted that they occurred prior to that investigation, not the one that resulted in these allegations. In the course of this investigation, Ms. A. offered multiple explanations, none of which were confirmed by the medical personnel that finally saw this child. It is noted that although one of her stories was that Mr. S. had caused the injury, she never took the child for medical attention or called Child Protection Services. Mr. S. stuck with his report that these injuries were caused by Ms. A. throughout the investigation and he did take the child for a medical exam as well as reported this to Child Protection Services.

Vicente S. testified that he discovered the injuries to Y. during a visit when the child took his clothes off to go swimming. It was his position that he had only seen the children twice in the two years prior to July 2013 and that his mother, Ms. A. and the children were present with him during the entire time. He indicated that he did not have any access with A. as that was not his child. He again stated that he had no information as to the cause of these injuries other than he felt that Ms. A. was responsible.

Johanna A. related a history of her children in regards to their contacts with Mr. S. and Child Protection Services. There were multiple reports to Child Protection Services with all of the ones prior to these two (that resulted in this petition being filed) being unfounded. She again gave more than one explanation for these injuries, but not one that could be confirmed by the medical testimony. She also claimed that at least 20 people had access to Y. at various times. Interestingly enough, she did not indicate when she discovered these injuries and never took the child for medical attention even though some of her versions seemed to indicate that medical attention was in order. During her testimony, she also insisted that none of the three of them caused these injuries but offered no alternative individual who was responsible. She also insisted that the child never came back from his visits with Mr. S. with any injuries.

Christen G. is the ex-wife of Vicente S. (they divorced in 2010) although they resumed living together in 2013. She stated that she has seen the children both with Mr. S. as well as with Ms. A. She denied that she was ever alone with the children. She indicated that she had [*3]concerns over Ms. A.'s care of the children when they lived together as well as at other times thereafter. Finally, she indicated that she has assisted Mr. S. in filing many of the petitions before the Court and that most of the information contained in those petitions was "told to her" rather than her own knowledge.

The explanations offered by the Respondent A. for these injuries are not credible in light of the medical testimony. Dr. C. indicated more than once that they were not injuries that could have occurred by accident and would result in scarring to the child. Respondent S. and G. do not appear to have had access with the child when the Doctor projects the injuries could have occurred.

Proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or person responsible for the care of such child shall be prima facie evidence of child abuse or neglect, as the case may be, of the parent or other person legally responsible....Family Court Act Section 1046 (a) (ii). Abuse must be proved by a preponderance of the evidence. Family Court Act Section 1046(b)(i).The Court finds that this standard was reached with respect to the Respondent A. alone. In addition, this finding is sufficient for the Court to find derivative abuse with respect to the other two children. There is insufficient evidence to find Vicente S. or Christen G. have either neglected or abused these children so the petitions must be dismissed with respect to them.

Therefore, it is hereby

ORDERED, that Y. S. is found to be an abused child by virtue of actions or omissions by Respondent Johanna A. and it is further

ORDERED, that D. S. and A. T. are found to be derivatively abused children and it is further

ORDERED, that the proceedings filed against Vicente S. and Christen G. be dismissed with prejudice and it is further

ORDERED, that this matter will proceed to disposition on June 30, 2016 at 9:30 a.m. in Part 1 of Family Court with all prior orders continuing in the interim period. All remaining petitions will be scheduled at that time as well for further proceedings.