PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AFTER 1028 HEARING PROCEDURAL HISTORY On June 4, 2020, the Administration for Children’s Services (hereinafter “ACS”) initiated a res ipsa abuse case against the Respondent Father, Joseph D, and the Respondent Mother, Taylor T, by the filing of a petition alleging they had abused their child Blair D, within the meaning of Family Court Act §1012. The petition specifically alleges that Blair, who was five-months-old at the time of the filing, suffered from a subconjunctival hemorrhage in her left eye, bruising to her upper and lower eyelids, a parietal skull fracture, and healing rib fractures. The Respondent Father asserted that Blair’s injuries resulted from her falling off the bed. The petition alleges these injuries were not consistent with the explanation provided by the Respondents but instead indicative of abuse. Both parents appeared in court before the Hon. Valerie Pels on June 4, 2020 and issue was joined. The Court ordered that Blair be temporarily directly placed with her maternal grandmother, while permitting the Respondent Mother to reside in the home provided she did not have any unsupervised contact with Blair. The Respondent Father was excluded from the home and has been granted visits under supervision. The Court held a hearing pursuant to the Respondents’ application under Section 1028 of the Family Court Act (hereinafter “F.C.A.”) to determine whether Blair could safely be returned to the Respondents’ care. The Court commenced the hearing on June 11, 2020, and continued the hearing on June 16, 2020; June 17, 2020; June 18, 2020; June 23, 2020; June 23, 2020; June 25, 2020; June 26, 2020; June 30, 2020; July 1, 2020; July 2, 2020; July 6, 2020; July 9, 2020; July 14, 2020; July 15, 2020; and July 17, 2020. Written summations were submitted by counsel on August 4, 2020. At the hearing, the Court heard extensive testimony from three separate expert witnesses: the Petitioner called Dr. Jamie Hoffman-Rosenfeld, who was qualified as an expert in child abuse; Respondent Mother called Dr. Saadi Ghatan, who was qualified as an expert in pediatric neurosurgery; and the Attorney for the Child called Dr. Katherine Grimm, who was also qualified as an expert in child abuse. Both the Respondent Mother and the Respondent Father testified on their own behalf. Child Protective Specialist (hereinafter “CPS”) Yvonne Ortiz was also called as a witness. The case was heard in the Virtual Courtroom with all witnesses testifying by video via Skype for Business.1 As such, the Court was able to observe all witnesses’ facial expressions and assess their demeanor and credibility. During the course of the hearing, the Court also accepted the following exhibits into evidence: Petitioner’s Exhibit 1: Curriculum Vitae of Dr. Jamie Hoffman-Rosenfeld, M.D. Petitioner’s Exhibit 2: PowerPoint Presentation prepared by Dr. Hoffman-Rosenfeld Petitioner’s Exhibit 3: Oral Report Transmission (ORT) Petitioner’s Exhibit 4: Riverdale Pediatrics records (6 pages) Petitioner’s Exhibit 5: Montefiore medical summary dated 6/2/2020 (2 pages) Petitioner’s Exhibit 6: Montefiore discharge records (7 pages) Petitioner’s Exhibit 7: Montefiore records (8 pages) Petitioner’s Exhibit 8: article — “Sentinel Injuries in Infants Evaluated for Child Physical Abuse” Petitioner’s Exhibit 9: article — “Bruising in children who are assessed for suspected physical abuse” Petitioner’s Exhibit 10: article — “The prevalence of Rib Fractures Incidentally Identified by Chest Radiograph among Infants and Toddlers” Petitioner’s Exhibit 11: article — “The Positive Predictive Value of Rib Fractures as an Indicator of Nonaccidental Trauma in children” Petitioner’s Exhibit 12: article — “Radiographic features of osteogenesis imperfecta” Petitioner’s Exhibit 13 — PowerPoint presentation on Physical Abuse Bruises and Other Skin Findings Petitioner’s Exhibit 14: article — “Development of Hospital-Based Guidelines for Skeletal Survey in Young Children with Bruises” Petitioner’s Exhibit 15: article — “Bruising Characteristics Discriminating Physical Child Abuse From Accidental Trauma” Respondent Mother/Respondent Father’s Exhibit A: Montefiore Medical Records Respondent Mother/Respondent Father’s Exhibit B: article Respondent Mother/Respondent Father’s Exhibit C: Curriculum Vitae of Dr. Saadi Ghatan Respondent Mother/Respondent Father’s Exhibit D: PowerPoint Presentation prepared by Dr. Saadi Ghatan Respondent Mother/Respondent Father’s Exhibit E: Video of Axial Cuts 1 Respondent Mother/Respondent Father’s Exhibit F: Video of Axial Cuts 2 Respondent Mother/Respondent Father’s Exhibit G: Riverdale Pediatrics records2 Respondent Mother/Respondent Father’s Exhibit H: fall re-enactment video Respondent Mother/Respondent Father’s Exhibit I: swaddling re-enactment video Respondent Mother/Respondent Father’s Exhibit J: photo of crib and changing area Respondent Mother/Respondent Father’s Exhibit K: photo of bed Respondent Mother/Respondent Father’s Exhibit L: two photos of bedframe Respondent Mother/Respondent Father’s Exhibit N: 3 screenshots of text messages Respondent Mother/Respondent Father’s Exhibit O: screenshot of photo of Blair Respondent Mother/Respondent Father’s Exhibit P: screenshot of photo of Blair Respondent Mother/Respondent Father’s Exhibit Q: June 5, 2020 Riverdale Pediatrics letter from Dr. Barbara Strassberg Respondent Mother/Respondent Father’s Exhibit R: May 2020 emails with Dr. Barbara Strassberg Respondent Mother/Respondent Father’s Exhibit S: June 2020 emails with Dr. Barbara Strassberg Respondent Mother/Respondent Father’s Exhibit U: photo of Respondent Father and Blair Respondent Mother/Respondent Father’s Exhibit V: email chain June 1-4, 2020 (10 pages) Respondent Mother/Respondent Father’s Exhibit W: email chain June 5-8, 2020 (1 page) Respondent Mother/Respondent Father’s Exhibit X: email chain June 4-5, 2020 (3 pages) Respondent Mother/Respondent Father’s Exhibit Y: Investigative Progress Notes Respondent Mother/Respondent Father’s Exhibit AA — photo of Blair taken on June 2, 2020 Respondent Mother/Respondent Father’s Exhibit AB — photo of Blair taken on January 14, 2020 Attorney for the Child’s Exhibit 1: Curriculum Vitae of Dr. Katherine Grimm, M.D. Attorney for the Child’s Exhibit 2: article — “Diagnostic Imaging of Child Abuse” Attorney for the Child’s Exhibit 3: article — “The Evaluation of Suspected Child Physical Abuse” FINDINGS OF FACT Per the Respondents’ testimony, the subject child Blair was born on January 11, 2020. This is the first child for both Ms. T and Mr. D. Neither Respondent has any history with ACS. Blair has always been in the care of both of her parents. Both parents testified about the preparations they participated in prior to Blair’s birth, including participation in pre-natal classes and reading parenting books. Both parents also testified to their overall care for Blair after she was born, which included bringing Blair in for her general well visits to her pediatrician and sharing in childcaring responsibilities. According to the Respondents’ testimony, Ms. T was home on maternity leave when the COVID-19 pandemic struck New York, after which Mr. D began working from home. On June 1, 2020, Blair was alone with her father when he took her to Montefiore Medical Center after she initially presented with injuries to her face. The Respondent Father, Mr. D, testified before the Court, and provided re-enactments of both his previous swaddling technique as well as the event immediately preceding Blair requiring medical treatment for her injuries, entered as Respondents’ Exhibits H and I. According to Mr. D, he was alone with Blair in the apartment on the day of the incident. He placed Blair on the bed perpendicular to the edge of the mattress with her feet towards the edge of the bed and her head towards the middle. He received a phone call from work and briefly left the room to speak with his co-worker. While he was in the living room, he heard Blair begin to cry and he rushed back into the bedroom. There, he saw Blair lying facedown on the floor parallel to the bed with her face towards the headboard. He immediately called his mother and then he called Ms. T. Then, Mr. D rushed Blair to the hospital where they met Ms. T. Per hospital policy, only one parent was allowed into the hospital at a time, so Ms. T accompanied Blair into the hospital. As testified by the Respondents, after Blair was admitted, the hospital staff contacted Dr. Jamie Hoffman-Rosenfeld, who was qualified as an expert in child abuse at the hearing. Dr. Hoffman-Rosenfeld reviewed the electronic medical records which included Mr. D’s account as to the causes of Blair’s injuries. However, Dr. Hoffman-Rosenfeld never spoke with Mr. D, who was the only person present when the injuries were allegedly sustained. Afterward, Dr. Hoffman-Rosenfeld began an evaluation for possible child abuse. Dr. Hoffman-Rosenfeld conducted a physical examination of Blair, took photos of her, and ordered that Blair undergo a full-body scan. At some point, Ms. T was informed that although Blair was ready for discharge, she was not permitted to leave with Blair, who was then admitted to the hospital. Blair had a red mark on her left cheek, beginning just above her lip and extending to her left eye; a hemorrhage on the white part of her eye; a red mark and swelling just above her left eye below the eyebrow; and a red mark between her eyes. The full-body scan revealed two broken ribs that were healing. These rib injuries were not acute and were separate from the facial injuries. Dr. Saadi Ghatan, who was qualified as an expert in pediatric neurosurgery, testified on behalf of the Respondents. In consultation of and preparation for his testimony, Dr. Ghatan reviewed the discharge summary from Blair’s hospitalization, a radiological report from Blair’s CT scan, Blair’s pediatric records, Blair’s records from Montefiore, the radiological imaging completed at Montefiore, various photographs, and the Respondents’ re-enactment videos of Blair’s fall and Mr. D’s swaddling technique. Dr. Katherine Grimm, who was similarly qualified as an expert in child abuse, testified on behalf of Blair. In consultation of and in preparation for her testimony, Dr. Grimm reviewed Blair’s records from Montefiore, Blair’s pediatric records, text messages between the Respondents, various photographs of Blair and of the Respondents’ home, the Respondents’ re-enactment videos of Blair’s fall and Mr. D’s swaddling technique, the PowerPoint presentation created by Dr. Hoffman-Rosenfeld, the ACS records, and various medical literature. Dr. Grimm also spoke with both parents on separate occasions. All three of the expert witnesses, in addition to the review of the documentary evidence provided to them, also testified to consulting with numerous colleagues prior to reaching their conclusions. Based on all the evidence available to parties at the time of the hearing, Dr. Hoffman-Rosenfeld concluded that Blair’s injuries were not the result of an accident, and instead were indicative of abuse. Dr. Saadi Ghatan and Dr. Katherine Grimm reached the opposite conclusion, disagreeing with Dr. Hoffman-Rosenfeld’s analysis, and found that Blair’s injuries could be explained as accidental. The Court is more persuaded by the conclusions reached by Dr. Ghatan and Dr. Grimm, and declines to follow the conclusion reached by Dr. Hoffman-Rosenfeld, for the reasons outlined below. LEGAL ANALYSIS & DISCUSSION F.C.A §1028 requires that this Court grant the Respondents’ application for the return of the subject child unless it finds that returning the child would present an imminent risk to the child’s life or health. In Nicholson v. Scoppetta, 3. N.Y.3d 357 (N.Y. 2004), the Court of Appeals clarified the standard of “imminent risk” and the factors courts must weigh in deciding applications pursuant to F.C.A. §1028. Pursuant to Nicholson, the court must balance the risk of harm to the children against the harm removal might bring, and it must determine factually which course is in the child’s best interest. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim. This is a res ipsa case with two respondents. Although this is a 1028 hearing, it is important to note that, in order to establish a prima facie case making the res ipsa presumption applicable at a fact-finding hearing, ACS will maintain the burden to show that Blair’s injuries are of the type that “could not ordinarily occur through accidental means” F.C.A. §1046; In re Philip M., 82 N.Y.2d 238, 243 (N.Y. 1993). To meet this burden, ACS “need not exclude all possible explanation but must produce sufficient evidence to establish that it is more likely than not the injuries were the result of the caretaker’s acts or omissions.” In re Nyla W., 39 Misc.3d 1241(A) at 10 (Kings Co. Fam. Ct. 2013). Even if ACS establishes a prima facie case at fact-finding, if a respondent “advances a persuasive factually based explanation” as to how the injury could have occurred without the acts or omissions of the respondent, this will overcome the presumption. Matter of Lianna HH., 165 A.D.3d 1386, 1389 (3d Dep’t 2018). While the Court’s determination at this emergency hearing is not dispositive in terms of whether the Petitioner will be able to meet its burden at fact-finding, the Respondents offered persuasive evidence at this hearing that Blair’s injuries could have been inflicted as described by Mr. D or by other accidental means. The Court views this evidence in light of the imminent risk standard applicable at this hearing, in making the ultimate determination as to whether or not Blair can be released safely to the Respondents. Dr. Hoffman-Rosenfeld, testifying on behalf of ACS, testified that, in her opinion, Blair’s injuries were not the result of an accident. Her conclusion was based on the nature of Blair’s injuries which she described as “patterned.” Dr. Hoffman-Rosenfeld asserted that, in general, injuries to the cheek in a 4.5-month-old-baby are inherently suspicious of child abuse, as injuries in that area would generally be protected by the child’s bones, which led to her assessment that this type of injury was indicative of abuse. To support her conclusion, ACS entered various published articles into evidence detailing how Dr. Hoffman-Rosenfeld’s findings are in line with current medical literature. Ms. T called Dr. Saadi Ghatan as an expert witness, and he was qualified as an expert in pediatric neurosurgery. The Attorney for Blair called Dr. Katherine Grimm as a witness who was also qualified as an expert in child abuse. The Court finds that both Dr. Ghatan and Dr. Grimm testified credibly and affords their testimony great weight. Both of their testimonies greatly disputed Dr. Hoffman-Rosenfeld’s analysis. In doing so, both Dr. Ghatan and Dr. Grimm were able to provide a holistic view to connect their findings to the specific nature of Blair’s injuries. In particular, Dr. Grimm’s approach to investigating possible cases of child abuse appeared very thorough and comprehensive. Here, in Blair’s specific case, she examined at least 13 different items. Dr. Grimm testified that she found it to be of critical importance to conduct a careful interview with the person present during the event that precedes an injury in order to get their explanation of what occurred. She stressed this is important in not only obtaining all of the details of the event, but also to see if the explanation fits the injuries, and to study the person’s body language. Further, when making an assessment into possible child abuse, she investigates the background, childhoods, and jobs of the parent(s); explores the family dynamics; and considers other factors to assess the overall risk of abuse; on top of examining the child, reviewing all reports, and consulting with other experts. Dr. Grimm testified that the prominent red mark on Blair’s cheek, the injury which Dr. Hoffman-Rosenfeld appeared to have found to be a “patterned” injury, was consistent with Mr. D’s report that Blair had fallen off the bed and likely hit her face on the bedframe before falling onto the floor. She noted that the linear nature of the mark was consistent with the straight edge of the bedframe, and the curve at the end of the red mark was consistent with Mr. D’s story. Similarly, Dr. Ghatan reached the same conclusion, after testifying that he sees children with head injuries at least twice a week and most of these injuries are a result of accidental falls; generally from changing tables, beds, or the parents’ arms. He was able to unequivocally conclude that the injuries on Blair’s face, including the marks on her eyelid and the injury to her eye, was consistent with her hitting the bedframe during a fall from the bed. In contrast, Dr. Hoffman-Rosenfeld did not testify if she was aware of the bedframe and, if she was, why this would not be a plausible explanation as to Blair’s facial injuries. In contrast, Dr. Hoffman-Rosenfeld’s testimony appeared to be more of an academic discussion regarding “patterned” injuries and injuries occurring underneath areas protected by bones rather than about Blair’s particular injuries in the context of Mr. D’s specific explanation as to what occurred. As a result, the Court was provided with the general understanding about why these types of injuries are suspicious of abuse. What was lacking, however, was the actual connection between her testimony and the actual pattern, if any, on Blair’s face and other factors considered that would have led to the conclusion that it was likely Blair had been abused. For example, Dr. Hoffman-Rosenfeld testified about three lines she observed on Blair’s face, without explaining the significance of why this would be indicative of abuse. As such, the Court was left to guess what conclusion could be drawn from this finding. More importantly, the Court examined the photographs in Dr. Hoffman-Rosenfeld’s PowerPoint Exhibit, entered as Petitioner’s Exhibit 2, but was unable to see the second or third line that she testified to. If the three lines were presumably to correspond to finger imprints, indicating that Blair had been slapped, the Court would have expected to see three lines equally clearly. Dr. Hoffman-Rosenfeld’s testimony was unable to explain why the Court would only see one line, or even one clear line and two lighter lines imprinted on Blair’s face. This discrepancy was not adequately explained by Dr. Hoffman-Rosenfeld. As a result, her testimony did not provide the Court with any hypothesis as to what mechanism of abuse may have caused these injuries. Although Dr. Hoffman-Rosenfeld was asked about the possible mechanism for injuries multiple times, she was unable to offer an adequate response. Consequently, the Court could not discern from Dr. Hoffman-Rosenfeld’s testimony if she believed that the pattern of injury to Blair’s face was the result of a slap, punch, a scratch, or some other intentional act. In contrast, both Dr. Ghatan and Dr. Grimm concluded that Mr. D’s explanation of Blair falling off the bed could logically fit with Blair’s presented head injuries. In fact, Dr. Grimm found that not only was Mr. D’s account of what happened the most likely explanation for Blair’s injuries, but that none of the possible mechanisms of abuse fit her injuries at all. For example, if Blair’s injuries were a product of a hard slap, multiple linear red marks of roughly equal shading should have been visible. In contrast, Blair only had one dark red line that was curved at the end. The other lines were barely, if at all, visible. Dr. Grimm was able to credibly testify that Blair’s markings were not at all typical of a slap, nor did they fit a punch or scratch. Significantly, Dr. Ghatan testified that if an adult punched or slapped an infant hard, the injury would have been much more significant. In contrast, the mark on Blair’s face appeared to have healed quickly with no further necessary treatment. The mark was so light that Dr. Grimm noted she wasn’t sure if it was actually a bruise. Instead, both Dr. Ghatan and Dr. Grimm concluded this mark fit Mr. D’s explanation and was a poor fit for abuse. The Court finds that both Dr. Grimm and Dr. Ghatan’s analyses make sense, as it is logical to conclude that a baby who freefalls downward off a bed could strike their cheek against a bedframe that extended away from the mattress. CPS Ortiz was able to testify about the presence of the bedframe, and how a gap was created when the mattress slid, which was apparently an easy occurrence. NYPD Officer Moore, who also investigated the case, also confirmed the bedframe setup. The Court itself is able to see the bedframe protruding both in the photos and re-enactment video entered into evidence. As such, the Court concludes that it is highly likely that the bedframe was extended away from the mattress at the time of the alleged fall. The Court finds that Dr. Grimm and Dr. Ghatan’s belief that Blair’s injuries resulted from her hitting the bedframe during her fall is more specific and credible than Dr. Hoffman-Rosenfeld’s general testimony that these types of injuries is highly suspicious of abuse, and her conclusion drawn here from that general finding. Dr. Hoffman-Rosenfeld also testified to a “possible” skull fracture that was visible in a 3D creation of over 200 2D image “slices” taken from a very fine CT scan of Blair’s skull. However, this possibility of a skull fracture was rejected by Dr. Grimm, who consulted with the radiologists where she worked, and by Dr. Ghatan. Particularly, as an expert in pediatric neurosurgery, Dr. Ghatan testified unequivocally that Blair does not have a skull fracture. Dr. Ghatan stated that any acute fracture would be accompanied by soft tissue swelling near the area of the fracture, which Blair did not have, nor was any ever noted by her pediatrician during any of her well visits. Dr. Ghatan also stated that, if Blair had a skull fracture, there would be signs of healing, such as callus formations, which were not present. Dr. Ghatan testified how the 3D image was created, leading to a line appearing in the report that actually does not exist in Blair’s skull. This phantom line was the basis for Dr. Hoffman-Rosenfeld’s conclusion that Blair may have had a skull fracture. Based off this evidence presented, the Court does not give any weight to the existence of a skull fracture. With regards to Blair’s rib fractures, the existence of these injuries is concerning for the Court, and was notable in Dr. Hoffman-Rosenfeld’s analysis. The fractured ribs were in the process of healing on June 1st when Blair was first taken to the hospital. Therefore, they were clearly not the result of the alleged preceding incident which led the Respondents to bring Blair to Montefiore. These injuries were a significant part of why Dr. Hoffman-Rosenfeld concluded that Blair’s injuries were a result of abuse rather than accidental. This may also have explained why Dr. Hoffman-Rosenfeld never spoke with Mr. D as part of her assessment into whether abuse had taken place. All three experts agreed that broken ribs can be a result of accidental and non-accidental means. Dr. Grimm explained that Blair’s rib fractures were lateral, which are far less suspicious for abuse than posterior fractures, as lateral fractures are related to compression. According to Dr. Grimm, rib compression in an infant is a common occurrence as adults compress the baby’s ribs whenever they hold or pick up the baby, place the child in a car seat or highchair, swaddle the baby, etc. In Respondents’ Exhibit I, the Respondent Father re-enacted his double swaddling method that he used on Blair. Mr. D testified that Blair would become very agitated by his swaddling, but would quiet down after she was tightly bound. On the video, the Court can observe the Respondent Father swaddle the doll used in Blair’s place, where he begins by holding the doll down with one outstretched hand pushing downward with force over the doll’s chest/body area, and then stretching the swaddles tightly around the doll. Dr. Grimm testified that Mr. D’s method was very hard and placed a great deal of pressure on the baby’s ribs, which could have caused the fracture. Dr. Grimm hypothesized that Blair was made extremely agitated by her father’s hard swaddling, and then quieted when she was tightly bound after he finished. This would explain why Blair did not cry for a long period of time afterward, which would have then raised concerns for the Respondents. It is important to note that Blair had been taken to all of her well visits to her pediatrician a total of six times in her first four-and-a-half months prior to June 1st. Dr. Grimm reviewed all of the pediatrician’s records, which included a full-body examination of Blair with her clothes removed, and there was never any indication of visible bruising on Blair’s body. If Blair had broken her ribs as a result of an intentional act by one of her parents, it is highly likely this would have resulted in some form of mark on Blair that her pediatrician would have been unlikely to miss. However, no such marks were ever noted. Dr. Hoffman-Rosenfeld is clearly very knowledgeable about child abuse. The Court credits the information she was able to provide about child abuse in her capacity as an expert on the subject, and gave her testimony careful consideration as it applied to this hearing. However, the Court finds that her investigation was incomplete and, as a result, she appeared to rush to judgment about Blair. Aside from being unable to adequately explain how Blair’s particular injuries were a result of abuse, Dr. Hoffman-Rosenfeld was not able to explain how Blair’s injuries could not have resulted from her falling off the bed and hitting the bedframe. Her failure to speak with Mr. D, who was the only person present and able to provide an explanation for the injuries, is incomprehensible. As part of Respondents’ Exhibits H & I, Mr. D filmed a re-enactment of his explanation as to what took place and showed that there was an approximately one-inch-wide wooden bedframe below the area where Blair would have fallen. It would have been highly unlikely for Blair to have missed hitting this bedframe on her way to the floor, yet this was not a part of Dr. Hoffman-Rosenfeld’s analysis. Had Dr. Hoffman-Rosenfeld spoken with Mr. D or watched the video of his re-enactment, she would have learned about the bedframe and would have had to consider it as part of her analysis as to whether Blair’s head injuries were accidental. Turning to Ms. T and Mr. D, the Court credits both of their testimony. Up until June 1st, Ms. T had rarely been away from Blair. The Court finds her testimony credible; she testified clearly, was never evasive, looked at the camera throughout her testimony and was calm except when she became emotional discussing her initial shock at learning about Blair’s broken ribs. The Court saw no evidence that Ms. T acted in any way that was intended to purposefully or accidentally put Blair at imminent risk of harm. Ms. T is clearly a very caring parent. She attended pre-natal classes along with Mr. D prior to Blair’s birth, ensures Blair is seen for all her wellness visits, maintains contact with her pediatrician with her questions she faced as a new parent, read to Blair daily, and did everything the Court would expect a nurturing parent would do. It was clear to the Court that Ms. T has a strong protective character. When asked about what she would do if she believed Blair was being abused, she looked straight at the camera and, without hesitation, unequivocally stated she would call the police. Mr. D also presented to the Court as a caring parent. Although he clearly should not have been as forceful in his swaddling of Blair, there is no reason the Court had to believe this was intentional. Rather, Mr. D appeared extremely remorseful at learning this may have caused Blair’s injuries and he demonstrated complete willingness to learn any new skills to improve his abilities as a parent. Dr. Grimm’s evaluation into suspected child abuse includes a detailed investigation of the parents’ home to assess risk for abuse. Here, the Respondents took pre-natal classes, communicated with Blair’s pediatrician regularly in between her numerous wellness visits, and demonstrated positive family dynamics and respect between each other. Additionally, Dr. Grimm testified that it is significant that the Respondents brought Blair immediately to the emergency room to treat her injuries, which would not be how parents would generally act had they abused their child. Had either Respondent intentionally acted to cause Blair’s rib fractures, avoiding any medical treatment would have been a safer course to hide the abuse. Instead, the Respondents’ actions of taking Blair to her well visits and to the hospital immediately following her alleged fall more likely lead to the conclusion they had no reason to suspect Blair’s ribs had been broken. This consideration is very important in a case involving allegations of res ipsa abuse and was absent from Dr. Hoffman-Rosenfeld’s assessment. At this hearing, Petitioner failed to show that returning Blair to her parents would place her in imminent risk, particularly in light of the compelling evidence that the majority of her injuries were caused in an accidental manner and that the rib fractures were likely caused by the Respondent Father’s swaddling. Furthermore, the Respondent Father’s honest and forthcoming testimony about his possible role in the accidental injuries, the Respondent Mother’s assurances that if she ever suspected her child was being abused she would call the police, and the Respondents’ actions of immediately taking Blair to the hospital for treatment further reassure the Court that orders can be put in place to mitigate any potential remaining risk. The Court disagrees with ACS’s assertion that it would be inappropriate to grant unsupervised contact in this case. There is no statutory rule against returning a child while an Article 10 abuse case is still pending. The cases cited by ACS do not apply, as they generally involved cases with more concerning factors such as injuries against multiple children (see In re Daniel O., 141 A.D.3d. 434 [1st Dep't 2016]), Respondents with a history of neglect or abuse (see In re Nyasia J., 41 A.D.3d 478 [2d Dep't 2007]), or more serious allegations/fatality (see Matter of Carson W., 128 A.D.3d 1501 [4th Dep't 2015]). None of these factors apply here. The Court considered this case as a whole in light of the extraordinary amount of evidence presented before weighing its decision, and does not find it would be an improvident exercise of discretion to grant Blair’s release prior to a full fact-finding hearing, which would have similar evidence presented. The Court also disagrees with ACS’s reliance on caselaw where the respondent has not acknowledged the circumstances that led to the removal. Here, neither parent has had prior ACS history. There was little to no evidence offered that the Respondent Mother was directly involved in the injuries obtained by Blair, or any showing on her part that she was not taking these allegations seriously. The Respondent Father, although maintaining he is not certain how Blair’s ribs were fractured, which no medical expert was able to conclude, appeared extremely remorseful at the suggestion that his swaddling may have caused Blair’s rib injuries. This is not in line with the cases cited by ACS, where the respondents either had extensive ACS history (see In re Audra L., 147 A.D.3d 838), had additional children who remained in care (see id.; see also Matter of Kimberly H., 242 A.D.2d 35 [1st Dep't 1998]), or actively presented ongoing behavioral issues during the pendency of the hearing (see In re Julissia B., 128 A.D.3d 690 [2d Dep't 2015]). While the medical evidence is concerning to the Court, Respondents produced compelling evidence that the injuries were sustained in an accidental manner and this court believes that orders can be put in place to mitigate any risk that an accident like this would happen again. CONCLUSION WHEREFORE, based upon the foregoing, the Court grants the Respondents’ motion, and the subject child Blair D is temporarily released to the care of the Respondent Mother and Respondent Father, under ACS supervision and under the following conditions: 1. The Respondents shall comply with ACS supervision including announced and unannounced visits; 2. The Respondent Father shall not be left unsupervised with the child; 3. The Respondents shall have the child subjected to a full-body examination by their pediatrician once every three weeks and sign a HIPPA release to allow ACS to speak with the child’s pediatrician to ensure that the child is being well cared for; 4. The Respondents are to complete a parenting skills course; 5. The Respondents are to accept and comply with all reasonable referrals made by ACS upon written notice to counsel. This constitutes the decision and Order of the Court. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BYA PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST Dated: August 7, 2020
