On April 12, 2005, the Administration for Children’s Service (ACS) filed an abuse petition against Nelinda and Hipolito, with regard to the subject children of the former namely Anastasia, Angel, Justin, Natalie, Rogelina, and Sheila, to which the latter was legally responsible.
A Lawyer said that on April 9, 2005, Nelinda’s children Angel, fifteen-month-old and Shiela, eleven years old left Brooklyn with Hipolito to go to his home in New Jersey for the weekend. On the same day, Angel was brought to Rahway Hospital and was pronounced dead on arrival, where it was found that the actual cause of death is an injury, a blunt force trauma to the liver resulting in the rupturing of the liver. A week prior the incident, while in the care and custody of Hipolito, Angel was returned to Nelinda with two black eyes and swelling to his forehead.
Despite knowing of these injuries and even documenting the same with a camera on her cell phone, Nelinda failed to seek any medical attention, and even stated that she took the photographs of the injury to show that the injuries sustained did not occur while under her care. Additionally, according to Shiela, Angel would frequently cry when he saw respondent Hipolito enter the room.
Thereafter, ACS effectuated an emergency removal of the surviving children upon the death of Angel to which, Nelinda request for the return of her children. Thus, in a hearing, the ACS caseworker and the law guardian’s worker testified. The Court denied such request to return the surviving children, finding, them to be at immediate risk, if returned.
On September 17, 2005, Nelinda gave birth to a child named Noel. ACS filed a derivative abuse petition, whereupon Noel was remanded to ACS. Upon a hearing, the Court determined that the temporary removal of infant Noel was necessary to avoid imminent risk to this child’s life and health. Thereafter, ACS filed a motion for summary judgment, alleging that there are no genuine triable issues of fact, and requesting an order finding that the subject children are abused and/or neglect.
The issue in this case is whether, as a matter of law, based upon the non-hearsay portions of the testimony and medical examiner’s report, the subject children were abused and/or neglected, pursuant to the Family Court Act, as a result the respondent mother’s actions and poor judgment, where she allowed fifteen month old Angel with eleven-year-old Sheila to return to the home of Hipolito in New Jersey, after Angel was harmed in his care only days before.
Under the Family Court Act, an abused child as a child “whose parent or other person legally responsible for his care 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 Family Court Act likewise defines a neglected child as a child “whose physical, mental or emotional condition is in imminent danger of becoming impaired as a result of the failure of her parent or other person legally responsible for her care to exercise a minimum degree of care in providing the child with proper supervision or guardianship; by unreasonable inflicting or allowing to be inflicted harm, or a substantial risk thereof, upon the child, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.”
In the instant case, Nelinda admitted at the hearing that she was upset when Hipolito returned Angel to her home with multiple facial marks, including two lines and two bruises, and accused him of not watching her child properly. She testified that she told him to return the child when she was made aware that he was hurt, and yet took no action to pick-up Angel when Hipolito failed to immediately return the child. She conceded that, despite the multiple facial marks the weekend before, she returned Angel to New Jersey.
Respondent mother’s argument that there are triable issues of fact as to where the bruises were on the child is not sufficient to raise a genuine and material triable issue of fact and will not defeat entry of summary judgment. The respondent mother’s testimony alone is sufficient proof that she allowed to be created a substantial risk of physical injury which would be likely to cause death or serious physical injury to Angel by allowing him to return with the person for the weekend where he was injured only days before. Based upon the her testimony alone, she observed multiple bruises and marks on her toddler’s face the weekend before he was killed after respondent Hipolito. cared for him, and was quite upset, asking him how could he let this happen when he knew that she already had a case with ACS. She further admitted that Angel’s father and respondent Hipolito., who had been good friends, had a falling out months before Angel’s death, were not speaking to each other, and that Angel’s father did not trust Hipolito.
The Court held that Angel, who was only fifteen months old, obviously could not care for herself, could not defend herself, and was totally dependent on the adult to whom this mother entrusted his care to. By allowing respondent Hipolito to care for the child only days after he was returned harmed, whether it was intentional or by respondent Hipolito’s failure to properly supervise him, the respondent mother allowed to be created a substantial risk of serious physical injury to Angel.
In this case, under the totality of these facts and circumstances, the respondent mother allowed to be created this zone of danger when she knowingly allowed her fifteen-month-old child to leave her home in respondent R.’s care knowing he was harmed only days before. Accordingly, the Court finds that the respondent mother abused the child Angel.
Based upon the nature of the respondent mother’s acts in allowing to be created a substantial risk of serious physical and emotional harm to Angel and Sheila, the fact that all of her other children were under the age of ten at the time of Angel’s death, and its proximity in time to the derivative proceedings, the Court concludes, under the totality of these facts and circumstances, that the respondent mother demonstrates serious fundamental flaws in her understanding of the duties of parenthood that places any child in her care at risk of being neglected.
The Court further finds that as a result of the mother’s knowledge, actions, and poor parental judgment that resulted in the death of fifteen-month-old Angel, that her other children Anastasia, Justin, Natalie, Rogelina and Noel are derivatively neglected children.
A child of tender years should be given tender love and care. As much as possible free him from any harm or injury. Kings Injury Attorney is here to counsel you in case you know a child being abused. Stephen Bilkis and Associates can help you with that.