Matter of Kevin T.

LEE H. ELKINS, J. In this proceeding alleging neglect and abuse of the infant Kevin (born Oct. 11, 1998), the Commissioner of the Administration for Children's Services (ACS) contends that the respondent father, Kurt C., caused injuries to the infant at a time when the respondent mother, Lynette T., concededly was not present, and that thereafter Ms. T. abused and neglected the child by failing to obtain medical care and by refusing to acknowledge Mr. C.'s responsibility for the infant's injuries. The court heard testimony on April 28 and May 24, 1999. On April 28, the court received in evidence the infant's hospital records; the respondent father's videotaped confession to injuring the infant; and heard the testimony of the ACS caseworker, Ms. Hoover, and of the respondent mother, called as a witness by the Law Guardian. On May 24, the court heard the mother's testimony on her own case, and the testimony of the paternal grandmother. The court credits the testimony of all the witnesses called, finding no significant inconsistencies in the testimony. Based on the foregoing, the court finds the following facts to be established by a preponderance of the credible evidence.

On Saturday, January 23, 1999, Kurt drove Lynette from their home in Brooklyn to New Jersey where Lynette was to work overnight as a babysitter, substituting on this occasion for a friend. They were accompanied by their three-month-old son, Kevin. Lynette was to work from Saturday morning at 10:00 A.M. overnight to Sunday morning at 7:00 A.M. Lynette left Kevin with Kurt the previous weekend, for the same time period, without incident. Lynette testified that she had left Kevin with Kurt on other occasions when she ran errands, and that there had never been a problem. Lynette lived with her husband Kurt for two years. Kurt never had abused her or the infant, physically or verbally. Lynette had seen Kurt with his other two children, a three and a four year old, by other mothers. The four year old lived with Kurt and Lynette for eight months. The three year old spent weekends with Kurt and Lynette. Lynette had never seen Kurt act otherwise than in a "loving and caring" manner toward his children. Although abrasion under the chin on the right side; a red .5-centimeter bruise on the right forehead; swelling and tenderness of the left ankle and a reddish purple band on the back of the left calf; .3-to-.5-millimeter and .1-to-.2-millimeter bruises in the left groin and abdomen area. When admitted to the hospital, Kevin cried but was consolable, and had an appetite. Following a skeletal survey the doctors found Kevin to have spiral fractures of the left and right tibia. Initially, the doctors believed that Kevin had multiple fractures, including posterior fractures of several left and right ribs, and a fracture of the lower skull. However, a note by the pediatric child abuse specialist attending, made on January 25 at about 11:15 A.M., reads "x-rays were done which initially suggested rib fractures and skull fractures and leg fractures. Upon reviewing films with Dr. Haller, the child has left distal tibia/fibula fractures and right proximal tibia fracture. There are no rib fractures." There was evidence that the infant had been subject to "pressure" in the area of his ribs. It was determined that there was no skull fracture. The hospital records indicate that the social worker recommended discharging Kevin to his mother. When told by the caseworker about the doctor's findings and the father's confession to the police, the respondent mother said: "I can't believe he did it. He has other children. We never had an argument. He's a gentle person * * * I don't believe he did that." The respondent mother also testified that the police told her Kurt confessed. Lynette had not spoken to her husband, who was in jail, as of the date of these interviews. The respondent mother testified that she was in shock, and that this was not the person she knew the father to be. She testified that she was unable emotionally to believe that her husband had hurt the child. Kevin was put on social hold, and application for remand made to and granted by this court. In court, Lynette continued to express her disbelief that Kurt had caused the injuries to the child. She expressed her inability to accept this information even though she watched Kurt's videotaped confession. She testified that she did not know what to believe. She also testified that although the infant is not in her care, she has separated from her husband and maintains her own residence. She also expressed her intent to enforce any order of protection issued in favor of Kevin against Kurt.

The foregoing facts clearly establish that Kurt C. abused Kevin, within the meaning of Family Court Act § 1012 (e) (i). As to the mother, the child is released to her custody under the supervision of the Administration for Children's Services, pursuant to Family Court Act § 1054. Although the neglect and abuse petition is dismissed as to the mother, the mother is placed under the agency's supervision upon the following conditions: (1) the mother is to enforce the order of protection against the father; (2) the mother, with agency assistance, is to enroll in individual counseling to assist her to accept her husband's abuse of the child, and to determine whether her own attitudes or behavior contributed to her failure to foresee her husband's abuse of the child; (3) the mother is to enroll in and to complete a parenting skills course to assist her to understand the causes of child abuse, and to assist her to detect any warning signs of future child abuse.