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This is a child abuse case filed by the Administration for Children’s Services

This is a child abuse case filed by the Administration for Children’s Services against respondents for their failure to provide an explanation consistent with how a minor child obtained a 3 centimeter perforation in the middle of her small intestine and a fracture of the radius and ulna.

According to Petitioner, subject minor is considered an abused child within the meaning of Family Court Act §1012(e) and that based upon the abuse to the subject minor, the siblings of the said subject minor is a derivatively abused child. The petitions further allege that the respondents’ acts also constitute child neglect within the meaning of Family Court Act §1012(f).

Family Court Act §1012(e) defines an abused child as a child less than 18 years of age whose parent or other person legally responsible for the child’s care either (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 Court held that respondents’ failure to respond quickly to subject minor’s abdominal condition constitutes the creation of a substantial risk of physical injury to subject minor by other than accidental means which would be likely to cause death or serious or protracted impairment of subject minor’s physical health or protracted loss or impairment of the function of a bodily organ. The respondents’ failure to respond at all to her obvious arm injury further supports a finding that subject minor is an abused child.

The Court also noted that Family Court Act §1046(a)(ii) provides an additional basis for making a finding in this case. Family Court Act §1046(a)(ii) provides that a prima facie case of child abuse or neglect may be established by evidence of an injury sustained by a child of such a nature as would not ordinarily be sustained absent an act or omission of a parent or person legally responsible for the child’s care, and proof that the parent was the sole caretaker at the time the injury was sustained. This basis upon making a finding of abuse is analogous to the negligence rule of res ipsa loquitur upon which the statute is modeled.

Upon consideration of all the evidence presented by the parties, the Court held that petitioner has indeed made a prima facie case of child abuse pursuant to Family Court Act §1046(a)(ii).

The medical evidence and testimony presented by Petitioner clearly established that these abdominal injuries are rare in three-year-old children and were highly likely to have been caused by blunt trauma. Additionally, the child suffered from fractures in her right arm, detected by a skeletal survey conducted after doctors became suspicious that her abdominal injuries resulted from child abuse.

These conditions would not ordinarily be present in a child of similar age to subject minor child absent abuse. The petitioner further established that the respondents were the primary caretakers for the child at the time she suffered these injuries. Neither respondent provided a credible alternative explanation that would absolve them of culpability for the child’s various injuries. The evidence, therefore, established that such events would not have occurred absent the intentional acts of the respondents.

The Court also held that the theory of the derivatively abused child applies here. Derivative findings of child abuse may be made where “the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. Proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent. Family Court Act §1046(a)(i). It is a well-entrenched principle that a finding of derivative neglect may be made where the respondent’s conduct toward one child demonstrates “a fundamental defect in his understanding of the duties of parenthood.”

Having found that the respondents are responsible for the abuse of subject minor child, and finding no evidence of any change in the respondents’ lives that would cause them to behave any differently in the future, the Court held that there is a substantial risk that the respondents will cause physical injury to the other children of a similar magnitude.

Stephen Bilkis and Associates with its New York Injury Lawyers are willing to provide you sufficient advise in establishing your rights within the bounds of law. It has offices situated within New York Metropolitan area, including Corona, New York.

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