She reviewed Methodist Hospital records; the x-rays of Nyla's leg, ribs, and finger taken in April when Nyla was in the hospital, as well as new x-rays taken in December Elizabeth S. She also conferred with the Methodist Hospital radiologist, Dr. Jeffrey Hirsch, and Dr. Horn, Mercy First's pediatrician, and Dr. Arcenas, Nyla's primary care pediatrician before she entered foster care. Weiner also interviewed the Mother, the Grandmother, and the foster parent Dr. Weiner testified that when she investigates a possible instance of child abuse she begins her inquiry at the point when the child was last observed to be uninjured.
Since Nyla was only four months old when her injuries were discovered, Dr. Weiner began her investigation on the day Nyla was born, continued through her stay in Methodist Hospital, and concluded with her consultation with Mercy First's pediatrician, Dr. Horn, and a review of x-rays taken pursuant to Court order in December Weiner testified that review of medical records alone is an insufficient basis on which to render a medical opinion.
In her view, it is necessary to obtain a full picture of the child, her family, her caregivers, her environment, whether there are any stressors such as poverty, drug use, mental illness, or domestic violence, which are often triggers and indicators of child abuse. She found no such circumstances in this case.
To the contrary, the fact that the Mother, who worked with special needs children, and the Grandmother, who had been a nurse for many years, jointly cared for Nyla indicated that Nyla enjoyed particularly attentive care with built in protections. In addition to obtaining a global picture of Nyla's general circumstances, Dr. Weiner considered each injury and its possible causes separately.
Weiner concluded to a reasonable degree of medical certainty that none of Nyla's injuries was the result of abuse. The Tibia. Weiner, Dr. Miller, and Dr. Ajl agreed, consistent with the x-ray taken of Nyla's leg on April 10, , and the radiologist's report regarding that x-ray, that Nyla suffered a tibia fracture and that it was a "fresh," i. Weiner and Dr. Miller testified that, as a broken bone heals, callus develops at the site of the break creating a bridge holding the broken parts together until the bone can regenerate.
The less callus, the more recent the fracture. Nyla's tibia x-ray showed no callus, indicating that it was a very recent fracture.
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Miller testified that the fracture could have occurred between 24 and 48 hours before it was discovered. Ajl testified that the fracture could have happened "minutes" but not more than two weeks before it was discovered. Weiner testified she believed the break occurred just hours before the Mother and Grandmother took Nyla to the Hospital. Ajl, and Dr. Hirsch agreed that the tibia fracture was "transverse," which can result from a direct blow to the leg or it can occur when the leg bends and the bone snaps.
Miller initially insisted that it was a "spiral" fracture, which results from someone or something twisting the leg. Miller eventually changed his testimony and agreed that Nyla suffered a transverse fracture of her tibia. No one witnessed the tibia injury occur. According to Dr. Weiner, such circumstances can result in "indeterminate findings," meaning that it cannot be determined with reasonable medical certainty, that the injury was the result of abuse. In those cases, plausible explanations may be considered in light of the surrounding circumstances to reach a supportable conclusion. In considering Nyla's tibia fracture, Dr.
Weiner hypothesized that during the night before she was brought to the Hospital, Nyla's foot got caught between the slats of her crib, her leg bent, perhaps as she tried to free her foot or as she turned her body, and her tibia snapped. Weiner found support for her hypothesis not only in the medical facts that the fracture was very recent and transverse and thus possibly caused by Nyla's leg bending , but also in the reports by both the Mother and Grandmother that Nyla was an active baby, "a real kicker," who was able to move herself from one part of her crib to another and who could turn and roll.
In addition, the Mother and Grandmother told Dr.
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Weiner that they observed nothing wrong with Nyla's leg when they put her to sleep after her nighttime feeding on April 9th, and only noticed a change the next morning. Those uncontested facts, along with the circumstances of Nyla's life, her environment, the attentive care she received from the Mother, Father and Grandmother — including the fact that they took Nyla to the emergency room soon after they noticed a difference in her behavior and the absence of common triggers and indicators of abuse such as poverty, mental illness, substance abuse, criminal or ACS history, or domestic violence, led Dr.
Weiner to conclude with a reasonable degree of medical certainty that Nyla's tibia fracture was accidental and not the product of abuse. Miller initially testified that tibia fractures in infants Nyla's age are most commonly caused by the child getting her foot caught between the slats of a crib. He subsequently testified that it was "not possible" for a four-month-old baby to fracture a leg in that way.
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Ajl agreed that a transverse fracture can be caused "when the bone is bent, with the leg going one way and the body going the other. Neither Dr. Miller nor Dr. Ajl explained why they reached that conclusion. Ajl acknowledged that a tibia can fracture as result of an accident. Ajl theorized that the tibia fracture was caused by a direct blow to Nyla's leg.
However, Dr. Weiner noted that Nyla's leg would have shown signs of bruising if it was hit with enough force to fracture her tibia, and the Hospital records noted only that the leg was slightly swollen, not that her leg was bruised in any way. Nonetheless, Dr. Ajl rejected the possibility of an accidental tibia fracture because there was no evidence of an accident and, more significantly for them, because it was one of three fractures incurred within four months.
The Ribs. On April 11, , a full skeletal x-ray was taken of Nyla to evaluate for child abuse. Just one x-ray was taken of Nyla's whole body.
Matter of Nyla W. ( Nora A.)
The radiologist, Dr. Jeffrey Hirsch, who read the x-ray film, noted a "focal thickening to the anterior-lateral left fifth and sixth ribs, which may represent well-healed fractures. Weiner testified that the x-ray is very unclear, which might explain Dr. Hirsch's equivocal report that what he observed "may" represent rib fractures.
Weiner noted that, a focal thickening of the ribs is not necessarily indicative of a fracture and once the thickening was observed, additional site-specific x-rays of Nyla's ribs should have been taken. Ajl agreed that the Methodist Hospital rib x-ray was inadequate. He testified that the Hospital should have taken multiple x-rays of the right and left sides of each arm, leg, hand, and foot, the right and left sides of the body, at least two of the skull and three or four of the chest. The the insufficiency of the single x-ray and Dr.
Hirsch's equivocal finding that what he observed only "may" represent rib fractures, raised questions for Dr. Weiner as to whether there was any rib fracture at all.
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However, x-rays taken in December showed that the thickening of the bones originally observed in April had all but disappeared, suggesting that there were rib fractures but the bones had completely regenerated. Hirsch agreed that site of the rib injury was left anterior-lateral, meaning between Nyla's front and left side. Miller alone believed they were left, posterior-lateral, meaning between Nyla's back and the side. Miller, Dr. Ajl and Dr. Weiner all agreed that posterior rib fractures are more commonly associated with abuse than anterior fractures.
Each of the experts testified that rib fractures can be caused by squeezing the ribs or by a direct blow, or by the application of significant pressure. Hirsch agreed that the rib fractures were "well-healed," meaning they had occurred some significant time before they were discovered. Ajl surmised that they occurred two to three months but not four months before discovery. Miller estimated that they could have occurred as much four months before, which would mean that they could have occurred when Nyla was born.
Based upon the circumstances of Nyla's birth, Dr. Weiner testified that she believed the injuries occurred when Nyla was born, slightly less than four months before they were discovered. Weiner testified that in uneventful births, babies breathe in air soon after their heads emerge, their color becomes pink, their muscle tone is good, all of which is reflected in their Apgar score, which measures the baby's color, heart rate, reflexes, muscle tone and respiratory effort.
A perfect Apgar score is 10 out of The LICH records described Nyla as "hypotonic" poor muscle tone , "dusky" grayish skin color , and experiencing "poor respiratory effort" at her birth. As a result, she was not receiving sufficient oxygen, and her lungs and rib cage were retracting, causing outside air pressure to press in between her ribs. As a result of the poor respiratory effort and retraction, Nyla was born lacking oxygen.
Her one-minute Apgar score of was six out of a possible Weiner testified that a score of five and below is correlated to cerebral palsy. A pediatrician was summoned to the delivery room, which Dr. Weiner stated is rare in vaginal births and only occurs if the baby is in distress.
Nyla's nose and mouth were suctioned, she was resuscitated and given oxygen, and her Apgar score after five minutes, rose to eight out of ten. Weiner hypothesized that Nyla's ribs could have been broken during labor and delivery, which could have caused her chest and ribs to retract. Alternatively, Dr. Weiner suggested that the rib fractures could have occurred while she was being resuscitated.
Hirsch agreed that Nyla's rib fractures could have occurred at Nyla's birth. Weiner found support for her hypothesis in the Mother's report that she breast fed Nyla and that, from her birth, she could not coax Nyla to feed from her right breast. Ajl agreed that a fractured left rib would cause Nyla pain or discomfort if pressure was applied to her left side. Weiner believed that Nyla's rejection of her Mother's right breast could be explained by the fact that she would have to lay on her left side to feed from the right breast.
Ajl acknowledged that it was possible that Nyla's rib fractures could have occurred during labor and delivery or while she was being resuscitated, but they rejected that hypothesis because, according to them, reports of rib fractures in newborns are rare. Weiner countered that it is impossible to know how many babies might suffer fractured ribs during labor and delivery because such injuries are not apparent without x-rays, and newborns are not routinely x-rayed.
Based upon the estimated age of the rib fractures, Nyla's complicated birth, her rejection of her Mother's right breast, Dr. Hirsch's concurrence that the fractures could have occurred at birth, and all the other circumstances of Nyla's life, Dr. Weiner concluded, with a reasonable degree of medical certainty, that, if there were rib fractures, they occurred during her birth or while she was being resuscitated, and were not the result of abuse.
The Finger Fracture. Nyla was admitted to Methodist Hospital on April 10, There is no record of any bruising or injury to any of her fingers on admission or at any time until her third day in the Hospital.
There was uncontested testimony by a number of witnesses that Nyla was examined, bathed, dressed and undressed multiple times by various doctors and nurses and that, if there was some swelling or bruising or discoloration of any of her fingers, it would have been observed and noted in the records. On April 12, , someone the evidence did not indicate who noticed that Nyla's right ring finger appeared swollen and discolored, and an x-ray was taken. Jose Mora noted in his report that only a "single frontal view of the hands" was provided, and found, based upon that one x-ray, that "[t]here is an apparent fracture of the tuft of the right fourth distal phalanx.
No other acute displaced fractures identified. Weiner reviewed the x-ray and, although she observed a line in the finger, she found it to be "indistinct" and "hard to define. No additional x-rays of the finger were taken, so her questions remain unresolved. Additionally, Dr. Weiner stated that the swelling and discoloration of the finger could have been no more than an irritation caused by the finger rubbing against something. Ajl all agreed that the injury was acute. Weiner testified that, because the apparent fracture was to the tip of the finger where the bone is very close to the skin, the swelling and discoloration of Nyla's finger would have occurred within an hour of the injury.
Miller testified that they would have appeared "almost immediately. Ajl stated that it could take up to two weeks for swelling and bruising to become obvious, although he did not explain why he believed it would take that long. Weiner concluded to a reasonable degree of medical certainty that, if there was a fracture to Nyla's finger, it occurred while she was in Methodist Hospital under the care of many nurses, doctors and other hospital personnel and that it was the result of an accident, not abuse.
Ajl testified that the apparent finger fracture was a result of abuse, because it was one of three fractures suffered by a four-month-old child. The Legal Analysis. Section a requires that the Court grant the application for the return of the child "unless it finds that the return presents an imminent risk to the child's life or health. Kings Co.
To justify the continued removal of the child, the Court must find that the risk is "imminent," i. Blossom B. Kings co. Additionally, the Court must weigh the risk posed by the return of the child against the harm she will suffer from her continued separation from her Mother Nicholson, 3 NY3d at ; see also Matter of DeAndre S.
The Court of Appeals has cautioned against courts resorting to what might be argued to be the "safer course. To meet its burden, Petitioner need not exclude all other possible explanations, but it must produce sufficient evidence to establish that it is more likely than not that the injuries were the result of the caretaker's acts or omissions see Matter of G. Children, 23 Misc 3d A [Fam. The statute does not shift the ultimate burden of proof, which remains with the Petitioner; it establishes only a permissible inference of parental culpability once Petitioner has met its prima facie burden Phillip M.
Once a prima facie case has been established, respondents may simply rest without attempting to rebut the presumption and permit the court to decide the case on the strength of petitioner's evidence Philip M. Alternatively, respondents may attempt to rebut the petitioner's prima facie case with evidence that a the child did not suffer the injury or condition which was the basis for the petition see, e. The court is required to weigh all the evidence in the record and consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker's explanation in light of all the circumstances Philip M, 82 NY2d at The caretaker's failure to offer any explanation for the child's injuries, to treat the child, or to show how future injury could be prevented are factors to be considered.
As in tort law, Petitioner may rely on expert testimony to demonstrate that the child's injury would not ordinarily occur in the absence of parental abuse or neglect Matter of G. The expert's opinion or conclusion must be based upon a reasonable degree of certainty, not on supposition or speculation or mere possibility G. Children, 23 Misc 3d A. Res ipsa loquitur does not apply when it is merely possible that negligence or abuse was the cause of the injury id.
Ajl, to establish that Nyla's injuries would not ordinarily have occurred but for the acts or omissions of Respondents. Ajl concluded that the injuries were the result of abuse based chiefly on the fact that Nyla suffered three injuries in four months. They reached this conclusion after relatively cursory reviews of Methodist Hospital records; less than cursory reviews of the LICH records.
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Neither doctor ever spoke to the parents, the grandmother, the foster parent, or the child's regular pediatrician, Dr. Miller spoke only perfunctorily with Dr. Bialak, the Methodist Hospital pediatrician, and Dr. Ajl did not speak with him at all. Neither doctor spoke to Dr. This compilation is in 2 volumes. Each volume has its own contents. This compilation includes commenced amendments made by Act No. About this compilation. This is a compilation of the Family Law Act that shows the text of the law as amended and in force on 1 January the compilation date.
The notes at the end of this compilation the endnotes include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments. The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register www.
The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments. If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes. If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Short title Repeal and saving Definition of family violence etc Third party proceedings to set aside financial agreement.. Meaning of proceeds of crime authority Debtor subject to a personal insolvency agreement Polygamous marriages Extension of Act to certain Territories Application of the Criminal Code Supersession of existing laws Use of protected names and symbols Accreditation Rules Definition of family counselling Definition of family counsellor Confidentiality of communications in family counselling.
Definition of family dispute resolution Definition of family dispute resolution practitioner Admissibility of communications in family dispute resolution and in referrals from family dispute resolution Definition of arbitration Definition of arbitrator Arbitrators may charge fees for their services Immunity of arbitrators Functions of family consultants Definition of family consultant Immunity of family consultants Courts to consider seeking advice from family consultants Court may order parties to attend, or arrange for child to attend, appointments with a family consultant Objects of this Part Prescribed information about reconciliation Obligations on legal practitioners Obligations on principal executive officers of courts Court to accommodate possible reconciliations Awards made in arbitration may be registered in court Creation of Court Divisions of Court Arrangement of business of Court Appointment, removal and resignation of Judges Absence or illness of Chief Justice Salary and allowances Oath or affirmation of allegiance and office Judicial Registrars Powers of Judicial Registrars Review of decisions of Judicial Registrars Exercise of delegated powers by Court Application of the Legislation Act to rules of court..
Independence of Judicial Registrars Judicial Registrars hold office on full time or part time basis Qualifications for appointment etc Term of office Remuneration and allowances Leave of absence Termination of appointment Oath or affirmation of office Place of sitting Change of venue Exercise of jurisdiction Court divided in opinion Original jurisdiction of Family Court Jurisdiction in associated matters Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Circuit Court Issue of certain writs etc Contempt of court Officers of Court Delegation of powers to Registrars Independence of Registrars Practice and procedure Management of administrative affairs of Court Chief Executive Officer Arrangements with other courts Arrangements with agencies or organisations Chief Executive Officer has functions of family consultants Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner Establishment and appointment of Chief Executive Officer Powers of Chief Executive Officer Remuneration of Chief Executive Officer Outside employment of Chief Executive Officer Disclosure of interests by Chief Executive Officer Acting Chief Executive Officer Personnel other than the Chief Executive Officer Annual report Delegation of administrative powers of Chief Justice Proceedings arising out of administration of Court Protection of persons involved in handling etc.
Jurisdiction in matrimonial causes Instituting proceedings Establishment of State Family Courts Law to be applied Principles to be applied by courts Institution of proceedings Proceedings for divorce order Stay and transfer of proceedings Courts to act in aid of each other Meaning of separation Effect of resumption of cohabitation Nullity of marriage When divorce order takes effect Divorce order where children Certificate as to divorce order Rescission of divorce order where parties reconciled What this Division does Objects of Part and principles underlying it Outline of Part Proceedings to which Subdivision applies How the views of a child are expressed Children not required to express views Informing court of relevant family violence orders Court to consider risk of family violence Application of Part to void marriages Subdivision D—Interpretation—how this Act applies to certain children Certain children are children of marriage etc Children born as a result of artificial conception procedures Children born under surrogacy arrangements Meaning of parental responsibility Parenting orders and parental responsibility Effect of adoption on parental responsibility