In re Benjamin L.

9 A.D.3d 153, 780 N.Y.S.2d 8, 2004 N.Y. App. Div. LEXIS 9794
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 15, 2004
StatusPublished
Cited by28 cases

This text of 9 A.D.3d 153 (In re Benjamin L.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Benjamin L., 9 A.D.3d 153, 780 N.Y.S.2d 8, 2004 N.Y. App. Div. LEXIS 9794 (N.Y. Ct. App. 2004).

Opinion

OPINION OF THE COURT

Buckley, P.J.

This case arises from the death of Kendall B., a three-year-old child who was in the custody of respondents, his foster parents. Kendall had sustained serious burns from scalding water in a bathtub and two days later died from cardiac arrest. Following a fact-finding hearing, Family Court rejected respondents’ version of how Kendall’s burns happened as incredible, discounted respondents’ medical expert, and found that petitioner’s medical experts and a preponderance of the credible evidence supported the theory that Kendall had been intentionally placed or held in scalding water.

Respondent Freeman G. has not appealed. Respondent Florence L. does not contest the finding of neglect and derivative neglect, but contends that Family Court’s findings as to abuse are not supported by sufficient evidence. I disagree and would affirm the orders appealed.

Family Court Act § 1012 (e) defines an “[a]bused child” as:

“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
[155]*155death 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 . . .

To establish a prima facie case of abuse, petitioner had to demonstrate an injury of such nature as would ordinarily not occur absent an act or omission by respondents, and that respondents were the child’s caretakers at the time of the injury (see Matter of Philip M., 82 NY2d 238, 243 [1993]; Family Ct Act § 1046 [a] [ii]). Thus, the Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur,” and “[i]ndeed, the statute is modeled on the res ipsa loquitur doctrine” (Matter of Philip M., 82 NY2d at 244). Once a prima facie case of child abuse has been proven, the burden of explanation or of going forward shifts to respondents, although the burden of proving child abuse always remains with petitioner (see id.). To satisfy their burden, respondents need to provide a reasonable and acceptable explanation of how burns of such nature and degree would have happened (see Matter of Tevon C., 280 AD2d 473 [2001]; Matter of Quincy Y., 276 AD2d 419 [2000]). Self-serving or contradictory denials or unreasonable explanations are insufficient to rebut a prima facie abuse claim (see Matter of Marc A., 301 AD2d 595 [2003]). Credibility determinations of the Family Court are entitled to great weight, since the nisi prius court is in a better position to evaluate the witnesses (see Matter of Irene O., 38 NY2d 776, 777 [1975]).

Following a thorough airing of the medical and factual issues arising from Kendall’s scalding and subsequent death, Family Court rendered a decision which extensively and meticulously evaluated the testimony of each witness and resolved the conflicting opinions.

Certain facts are undisputed. In December 1998, respondents lived in a three-bedroom apartment with their own three children and four foster children, including Kendall. Prior to accepting Kendall, respondents were never advised of his serious behavioral problems, including inappropriate sexual conduct, lack of proper toilet training, inability to dress or feed himself, insatiable thirst and hunger, and violent tantrums. Kendall required the services of a therapeutic day nursery and had been evaluated by a psychologist as “severely hyperactive, impulsive [and] overly aggressive.” On the evening in question, Kendall urinated on himself in respondents’ home. He got into a [156]*156bathtub, and Florence L. began to run the water for his bath. Kendall sustained serious burns to 20 to 50% of his body as a result of partial immersion in scalding water for 10 to 30 seconds. After that period, Florence L. removed Kendall from the water, and Freeman G. took him to the hospital.

The central factual dispute concerns whether Florence L. intentionally placed or held down Kendall in the scalding water, as the Family Court found, or whether he was momentarily left unattended in the bathtub, during which time either there was a surge of hot water or he turned the spigot, as respondents contended. However, respondents’ theory also depends on a finding that Kendall remained in the water for the 10 to 30 seconds and would not have immediately screamed or tried to climb out of the tub in reaction to the high temperature because: (1) he had dull pain senses and reflexes; or (2) he feared getting into trouble.

Three medical experts testified. Dr. Steven Shapiro of the Office of the Chief Medical Examiner performed the autopsy and testified as an expert in medicine with a subspecialty in forensic pathology. He found that Kendall’s body was marked by an immersion line, below which he sustained serious burns to 30 to 35% of his body, and full thickness skin loss on his forearms. The extent and quality of the burns, and the fact that the skin folds of Kendall’s belly and his groin crease were relatively unaffected, indicated to Dr. Shapiro that Kendall was restrained in scalding water. Notably, Dr. Shapiro has presented a paper to the American Academy of Medical Examiners in which he advised that, even where there is no dispute that a child has been abused, it is important not to automatically conclude that the child’s death was the result of the abuse, but rather to search for the possibility of natural causes.

Dr. Shapiro’s essential findings were corroborated by Dr. David Bank, Chief of Pediatric Emergency Services and Director of the Division of Pediatric Emergency Medicine at New York-Presbyterian Hospital, who testified as an expert in pediatrics with a subspecialty in child abuse and maltreatment. Dr. Bank calculated the burned area of Kendall’s body to be between 40 and 54%. Dr. Bank was unable to characterize the burns as having happened as a result of abuse or neglect, but he was adamant that, notwithstanding Kendall’s developmental problems, his survival reflexes would have caused him to immediately escape the water or, at the very least, to scream.

The medical testimony of Drs. Shapiro and Bank, when coupled with the undisputed facts, clearly established petition[157]*157er’s prima facie case of abuse as against respondents. A child of this age and physical abilities does not normally sustain the burns from which Kendall suffered absent abuse. The burden of going forward then shifted to respondents to provide a reasonable and acceptable explanation for these injuries which caused Kendall’s death. This they did not do.

Respondents relied on the expert testimony of Dr. Paul Halebian, Kendall’s treating physician at the New York Hospital-Cornell Medical College, who was qualified as an expert witness in medicine with a subspecialty in burns. Dr.

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Bluebook (online)
9 A.D.3d 153, 780 N.Y.S.2d 8, 2004 N.Y. App. Div. LEXIS 9794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-benjamin-l-nyappdiv-2004.