Matter of Caleb S.

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 CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER   On July 14, 2020, the Administration for Children’s Services (hereinafter “ACS”) initiated a res ipsa abuse case against the Respondent Mother, Gina R and the Respondent Father/Person Legally Responsible, Duvaughn S and Respondent Maternal Grandmother/Person Legally Responsible Miriam P. by the filing of a petition alleging they had abused the subject child Caleb S and derivatively abused the subject child Miabella S., within the meaning of Family Court Act §1012. The petition specifically alleges that the subject child Caleb S presented to Montefiore Medical Center on June 25, 2020 with seizures, and that subsequent medical findings revealed retinal hemorrhages and a subdural hematoma consistent with a diagnosis of abusive head trauma. As a result of the aforementioned allegations, the subject child Miabella is derivatively abused and/or neglected. This proceeding commenced in the Bronx Virtual Family Court due to the COVID-19 pandemic. On July 15, 2020, the Respondents Gina R (hereinafter “Ms. R), Duvaughn S (hereinafter “Mr. S”), and Miriam P (hereinafter “Ms. P”) appeared virtually in front of the Hon. Tracey Bing and issue was joined. All three respondents were assigned counsel and were arraigned. ACS sought a removal of the subject children. While Ms. R and Mr. S through their respective attorneys, initially requested a 1027 hearing, upon a recall of the instant case on July 15, 2020, the parents subsequently requested a 1028 hearing instead. On ACS’ application, the subject child Miabella was temporarily released to her non-respondent father Mr. B. ACS supervision, and the subject child Caleb was temporarily directly placed with his maternal aunt, Ms. R This matter was immediately adjourned for a hearing pursuant to FCA §1028 in Part 14. The §1028 hearing commenced on July 20, 2020, and continued to July 21, 2020, July 22, 2020, July 23, 2020, July 24, 2020, August 13, 2020, August 14, 2020, August 17, 2020, and August 20, 2020. Written summations were submitted by counsel on August 28, 2020. The matter was then adjourned to September 2, 2020 for the Court’s decision on the §1028 application. 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, as well as Dr. Jacqueline Bello who was qualified as an expert in neuroradiology. The Respondent Mother called Dr. Saadi Ghatan, who was qualified as an expert in pediatric neurosurgery. Both the Respondent Mother and the Respondent Father testified on their own behalf. The case was heard in the Virtual Courtroom with all witnesses testifying by video via Skype for Business. As such, the Court was able to observe all witnesses’ facial expressions and assess their demeanor and credibility. No other witnesses were called, however sworn affidavits were submitted as evidence by Respondent Mother through her attorney. Specifically, sworn affidavits of the Respondent Miriam P, the non-respondent father of Miabella, Robert B and the paternal grandmother Yvette S were entered into evidence without objection. No counsel had cross examination questions based on these affidavits for these witnesses, despite their availability to appear and be questioned. During the course of the hearing, the Court also accepted the following exhibits into evidence. Petitioner’s Exhibits: 1) Medical Records from Montefiore Medical Center for the child Caleb S 2) Radiology Records from Montefiore Medical Center for the child Caleb S 3) Notes entered by Dr. Jaime Hoffman-Rosenfeld regarding Caleb S 4) Scholarly Article “Abusive Head Trauma: Don’t Overlook Bridging Vein Thrombosis”; 5) Scholarly Article “Estimating the Probability of Abusive Head Trauma a Pool Analysis’”; 6) Scholarly Article “Estimating the Probability of Abusive Head Trauma after Abuse Evaluation”; 7) Scholarly Article “Imaging of Bridging Vein Thrombosis in Infants with Abusive Head Trauma”; 8) Scholarly Article “Parasagittal Vertex Clots on CT in Infants with Subdural Hemorrhage as Predictor of Abusive Head Trauma”; 9) Scholarly Article “Patterns of Retinal Hemorrhages Associated with Increased ICP in Children”; 10) Scholarly Article “Retinal Hemorrhages in Children the Role of Intracranial Pressure”; (11) Scholarly Article “Venous Injury in Abusive Head Trauma”; (12) Scholarly Article “Does Intracranial Venous Thrombosis Cause Subdural Hemorrhage in the Pediatric Population?”; (13) Curriculum Vitae — Dr. Jaime Hoffman-Rosenfeld; (14) Curriculum Vitae — Dr. Jacqueline Bello; (15) Emails between Dr. Hoffman-Rosenfeld and Dr. Bello; Respondent Mother’s Exhibits: A) Ms. R s Call Log B) Bedroom Photograph C) Bedroom Photograph D) Pack and Play Photograph E) Miabella’s Bedroom Photograph F) Miabella’s Bed Photograph G) Living Room Photograph H) Baby Shower Photograph I) Photograph of Ms. R Miabella & Caleb J) Photograph of Caleb & Ms. S K) Photograph of Caleb taken on June 22, 2020 L) Photograph of Caleb taken June 23, 2020 M) Video of Caleb taken on June 23, 2020 N) Photograph of Caleb taken on June 24, 2020 O) Video of Caleb taken on June 24, 2020 P) Printout of text messages between Respondent Parents dated June 25, 2020 Q) Video of Caleb in Montefiore Medical Center from June 25, 2020 R) Printout of text messages between Ms. R and Ms. P dated June 25, 2020 S) Photograph of Caleb and Ms. R at Montefiore Medical Center T) Photograph of Caleb and Ms. R at Montefiore Medical Center U) Video of Caleb at Montefiore Medical Center V) Video of Caleb at Montefiore Medical Center W) Printout of text messages between Ms. R and Miabella from June 25 — 26, 2020 X) Printout of text messages between Ms. R and Miabella from June 27, 2020 Y) Printout of text message between Miabella and Ms. R Z) Discharge Paperwork from Montefiore Medical Center AA) Birth Records for Caleb BB) ACS Progress Notes CC) Certificate of Completion for Ms. R s Parenting Classes DD) Yvette S s sworn affidavit EE) Robert B s sworn affidavit FF) Initial Child Safety Conference Summary GG) Curriculum Vitae for Dr. Saadi Ghatan HH) Brain Imaging II) Dr. Ghatan PowerPoint JJ) Dr. Ghatan Medical Notes KK) Miriam P s sworn affidavit Respondent Father’s Exhibits: RF’A Certificate of Completion — Parenting Classes RF’B Scholarly Article Cerebral venous sinus thrombosis in children RF’C Scholarly Article Cerebral Sinovenous Thrombosis in Children The Attorney for the Child did not submit any documentary evidence or call any witnesses. FINDINGS OF FACT I. GINA R S TESTIMONY The first witness at the §1028 hearing was Ms. R who began her testimony on July 20, 2020. Ms. R s testimony was taken out of turn on consent of all parties, as ACS did not have a witness prepared to testify for the first day of the hearing. Ms. R testified that she has two children, Miabella who is 9 years old, and Caleb who is 3 months old. Ms. R has never been the subject of an ACS investigation regarding either of her children, prior to the instant proceeding. The subject child Caleb was born at Einstein Hospital, at which time Ms. R tested positive for COVID-19. Caleb’s COVID-19 test was negative. On June 1, 2020, Ms. R and Mr. S moved into an apartment in New Jersey. In this home. Miabella has her own bedroom, and Ms. R shares her bedroom with Mr. S and Caleb, who sleeps in a pack and play. Ms. R indicated that she never co-sleeps with Caleb and that she knows this is unsafe. Prior to June 1, 2020, Ms. R Miabella and Caleb resided with the maternal grandmother. Ms. P From Caleb’s birth. Ms. P and Mr. S were the only two people who assisted Ms. R in caring for Caleb, and Ms. R has no concerns about how either Ms. P. or Mr. S care for Caleb. Regarding Miabella. Ms. R testified that Miabella is an excellent student and that she and Miabella have a very strong bond. Ms. R testified that on a typical day, Caleb usually wakes up on his own at approximately 5:00 a.m. Ms. R normally breastfeeds Caleb at this time. Caleb typically drinks four ounces of milk during a feeding. On June 24, 2020, however, when Caleb woke up, Ms. R gave him a bottle, and she noticed Caleb only drank about an ounce and a half. Caleb also appeared sleepier that day as well. Caleb did not have a fever that evening when she checked. According to Ms. R Caleb’s sleepiness continued throughout the evening, and Caleb seemed “more fuzzy than usual.” This behavior continued to the next day, June 25, 2020. At around 8:50 a.m. on June 25th, Ms. R noticed that Caleb’s right arm and right leg stiffened up and started to twitch. After this occurred a second time. Ms. R contacted Caleb’s pediatrician. Dr. Koors. Ms. R also called Mr. S and asked him to return home from work since she was concerned about Caleb. During a telehealth virtual appointment. Dr. Koors confirmed that Caleb was experiencing a seizure and advised Ms. R and Mr. S to take Caleb to the Children’s Hospital at Montefiore. When the parents got to Montefiore Children’s Hospital, medical staff put in an IV in Caleb, performed a CT scan, and subsequently informed Ms. R that Caleb had a small clot on the left side of his brain. Per Ms. R the emergency room doctors explained that Caleb could have been dehydrated, and that they wanted to check for meningitis, as well as any viruses or infections. Doctors later told Ms. R that there was a high possibility that dehydration could have caused Caleb’s blood clot. Ms. R also informed the emergency room doctors that she tested positive for COVID-19 upon Caleb’s birth and the doctors explained to Ms. R that they would take this under consideration. Ms. R remained in the hospital overnight with Caleb throughout Caleb’s hospital stay until July 13, 2020. During this time, Ms. R also helped the nurses administer Caleb’s medication. On July 9, 2020, Ms. R spoke with Dr. Martin, Caleb’s hematologist at Montefiore Hospital. Dr. Martin advised Ms. R that there would be an ACS investigation. This was the first time any staff at Montefiore indicated any concern or suspected abuse or neglect of the subject child. On July 10, 2020, Dr. Hoffman-Rosenfeld came to Caleb’s room to speak with Ms. R Dr. Hoffman-Rosenfeld told Ms. R that she was from the child abuse division, and asked Ms. R to answer questions. Ms. R indicated that she wished to only speak with Dr. Hoffman-Rosenfeld if she could have someone from the Bronx Defenders present. Ms. R testified that she asked this because she felt the hospital staff was accusing her of something that she did not do. On advice of Montefiore’s legal department, Dr. Hoffman-Rosenfeld declined to allow Bronx Defenders to be present for this questioning, and therefore, no interview occurred between Ms. R and Dr. Hoffman-Rosenfeld. However, Ms. R did speak with a caseworker from ACS, with a parent advocate from the Bronx Defenders on the phone for that interview. Prior to Caleb’s hospitalization, Caleb previously received medical treatment in April 2020 at Saint Barnabas Hospital due to an infection in one of his extra digits. Caleb’s extra digit was removed, and he was given Clindamycin to treat his infection. According to Ms. R none of the medical staff at Saint Barnabas Hospital raised any concerns about the parents’ care of Caleb. Ms. R further testified that she would never and has never hurt Caleb or Miabella. Ms. R has complied with ACS referrals. Ms. R completed a parenting class on August 5, 2020 and is starting therapy. She has regular daily visits with Miabella and Caleb, maintains contact with the current ACS CPS, and is willing to comply with any further referrals from ACS or orders of the Court. II. DR. HOFFMAN-ROSENFELD’S TESTIMONY Dr. Hoffman-Rosenfeld testified that she was contacted regarding Caleb’s case by Dr. Martin, Caleb’s hematologist from Children’s Hospital at Montefiore. Dr. Hoffman-Rosenfeld notes that Caleb’s case was a complicated presentation. Specifically, Caleb had a history of recent poor feeding and lethargy, along with abnormal movements, later identified as seizures at the time of presentation. Dr. Hoffman-Rosenfeld also testified that Caleb’s CT scan showed some venous thrombyte or clots, in a left parasagittal cortical venous clot. Caleb was being treated with anti-coagulation medication otherwise known as blood thinners. Caleb was also diagnosed with retinal hemorrhages. Dr. Hoffman-Rosenfeld testified that she was told by Dr. Martin that Caleb did not have a hematologic condition that would cause retinal hemorrhages. In Respondent Mother’s Exhibit BB, according to the ACS caseworker. Dr. Martin told CPS Margarita Yusufora on July 19, 2020 that Caleb’s bleeding could have come from the blood thinner he was prescribed at the hospital. In addition to speaking with Dr. Martin, Dr. Hoffman-Rosenfeld also spoke with Montefiore neuroradiologists Dr. Bello and Dr. Slasky; Montefiore ophthalmologists Dr. Park and Dr. Lin; and Dr. Davilla, a hemostatis expert at Montefiore. Dr. Bello told Dr. Hoffman-Rosenfeld that she went back and looked at the first CT scan from June 25, 2020, and believed that there were subdurals present in addition to the clot diagnosed when Caleb was in the ER. Dr. Slasky told Dr. Hoffman-Rosenfeld that there were areas of subdural collection likely representing hemorrhage as well. Dr. Slasky indicated there may have been more to diagnose in Caleb’s imaging. Dr. Hoffman-Rosenfeld also testified to her conversation with Dr. Park, an ophthalmologist at Montefiore, about the retinal hemorrhages seen on Caleb’s imaging. This conversation pertained to the relative likelihood of various things that were listed as potential explanations for retinal hemorrhages, including increased intracranial pressure, a coagulation abnormality, venous thromboses in general, and abusive head trauma. Dr. Park described the retinal hemorrhages as 10-12 intraretinal hemorrhages confined to the posterior pole. There was no testimony regarding Dr. Park’s conclusions as to the cause of these retinal hemorrhages. although Dr. Park did suggest venous thrombosis as a possible cause. Dr. Hoffman-Rosenfeld rejected this suggestion due to literature. No further explanation was provided. Dr. Hoffman-Rosenfeld spoke with an additional Montefiore ophthalmologist, Dr. Lin, who noted that the location and retinal hemorrhages in this baby was not of a severe hemorrhagic retinopathy that can be seen in abusive head trauma. Genetic testing on Caleb is still pending. In her testimony. Dr. Hoffman-Rosenfeld’s opinion was that a diagnosis of abusive head trauma can explain Caleb’s presentation. In the medical records submitted into evidence and in Dr. Hoffman-Rosenfeld’s testimony, all of the doctors indicated that trauma should remain a part of the differential diagnosis for Caleb’s injuries. Dr. Hoffman-Rosenfeld testified that she did not personally speak to either parent or any other caregiver. She did review the notes from prior conversations the parents had with hospital staff. Dr. Hoffman-Rosenfeld did attempt to speak with Ms. R. but was informed by Montefiore legal department not to speak with Ms. R with Bronx Defenders present. Dr. Hoffman-Rosenfeld further testified that she did not attempt to speak with Mr. S because she assumed he would also not speak with her without an attorney present. Dr. Hoffman-Rosenfeld did not conduct a physical examination of Caleb, nor did she contact Caleb’s pediatrician. Dr. Koors, who is affiliated with the Montefiore health system. Without ever stating she had a reasonable degree of medical certainty. Dr. Hoffman-Rosenfeld nonetheless concluded that the mostly likely cause of Caleb’s injuries is abusive head trauma. III. DR. BELLO’S TESTIMONY Dr. Bello initially became familiar with Caleb’s case by reviewing his head CT scans from June 25, 2020. Dr. Bello found that in the imaging, there was a thrombus, which is a blood clot, in a left parietal vein as well as a thrombus partially filling the dural venous sinus. Dr. Bello testified that she also reviewed an MRI of Caleb’s brain from June 26, 2020 and confirmed the thrombosis of the left parietal vein and thrombus partially filling the dural venous sinus. In addition to reviewing Caleb’s imaging, Dr. Bello also had multiple exchanges with Dr. Hoffman-Rosenfeld to clarify findings. Specifically, Dr. Hoffman-Rosenfeld sought clarity from Dr. Bello regarding whether subdural collections were new at the time of subsequent scans or whether they had been present on the scans from June 25th and 26th. Dr. Bello explained that a subdural collection is a collection of fluid underneath the dura. Dr. Bello compared the subsequent MRI scans to the scans that she originally reviewed and saw that those same collections had been present in the original imaging. After this review, Dr. Bello made an addendum to her report, indicating that there were subdural effusions. Dr. Bello continued to testify that the effusion in this case was not the same color as cerebrospinal fluid. She further indicated that the effusions could just be high protein fluid, or could be from a prior infection or from having concentrated over time, or they could be hemorrhages that are chronic, but there was no way of proving it. Dr. Bello did not make a diagnosis of hemorrhages, but testified that if they were hemorrhages at any point in time, they were chronic and old. Following Dr. Bello’s re-review of Caleb’s June 25th and June 26th imaging, Dr. Bello also reviewed Caleb’s July 3, 2020 MRI, where she noticed that there was subacute blood in the posterior fossa which is the lower part of the brain that had not been identified on the original scans. Dr. Bello defined subacute as anywhere from a few days to longer, as opposed to chronic, which is weeks old, or acute, which is early, right away, blood. When asked what could have caused this subacute blood seen in Caleb’s July 3 MRI, Dr. Bello testified that especially in somebody lying on the back of their head, it could have slid down. Dr. Bello went on to opine that since that blood is subacute, there was not enough time for another bleed to have occurred and already turn subacute. Therefore, some of the dural venous sinus density was in the sinus, and some of it was likely acute blood layer on the dura that slid down. Dr. Bello then distinguished this finding from the subdural effusions noted on the same scan, because they have different addresses or are in different places in the brain. Next, Dr. Bello reviewed Caleb’s July 5th imaging. For that date, Dr. Bello noted that the findings are subdural effusions and posterior fossa subdural and their signal is in a part of the brain known as the splenium of the corpus callosum. Dr. Bello testified that this finding can be seen after a seizure. Dr. Bello also testified that other causes of abnormal signaling, in addition to seizures, could be metabolic, trauma, or multiple sclerosis. Dr. Bello noted that when abnormal signaling is due to trauma, it never resolves. However, if abnormal signaling is caused by another reason, it would resolve. There was no testimony as to how long it may take for this abnormal signaling to resolve. Dr. Bello testified to Caleb’s MRI from July 7th, which showed that the clot that was inside the sinus was resolved. Dr. Bello did not provide the Court with an opinion as to the cause of the signaling she noted in Caleb’s imaging. IV. DUVAUGHN S S TESTIMONY Duvaughn S testified that he was present at Caleb’s birth, and that while Caleb initially lived with Ms. R at Ms. P’s home, Mr. S would visit Caleb every other day and provided financial support. To prepare for becoming a father, Mr. S read a baby book that was given to him by his aunt. The parents and both subject children all began residing together as of June 1, 2020. Mr. S cares for Caleb in a myriad of ways, including changing him, feeding him, singing to him, playing with him, and talking to him. On June 25, 2020, at around 10:00 a.m., Mr. S received text messages from Ms. R requesting that he call her. Ms. R then informed Mr. S that Caleb was twitching, and he needed to return home from work. Mr. S immediately spoke to his supervisor and obtained permission to leave. Mr. S arrived home in approximately 30 minutes. During the telehealth appointment with Dr. Koors, Mr. S saw that Caleb started to twitch on one side of his body. Dr. Koors told Mr. S and Ms. R that Caleb may be having a seizure and to take him to the hospital. Mr. S and Ms. R went straight to the emergency room. Mr. S further testified that Caleb remained in the hospital for over two weeks, and he visited Caleb every day. Dr. Hoffman-Rosenfeld did not try to contact him. Mr. S testified that he never hurt Caleb, and he would comply with any orders from the Court. He also testified that he has a great relationship with Ms. R s child Miabella. V. TESTIMONY OF DR. GHATAN Dr. Ghatan, the chairman of neurosurgery at Mount Sinai West and Mount Sinai St. Luke’s and the director of pediatric neurosurgery for the Mount Sinai Health System was qualified as an expert in pediatric neurosurgery. Dr. Ghatan noted that he is not receiving any compensation for his work on this case. Dr. Ghatan testified that he became familiar with Caleb’s case in mid-July 2020, and he reviewed Caleb’s records from the Children’s Hospital at Montefiore, including all of Caleb’s imaging. Dr. Ghatan also conducted two physical examinations of Caleb, and spoke with Ms. R Mr. S and the maternal aunt to obtain additional developmental and birth history. The first physical examination was conducted on July 19, 2020 and the second was conducted on August 11, 2020. During these examinations. Dr. Ghatan had the opportunity to observe Caleb’s interactions with his parents, and these interactions were observed to be appropriate and the family appeared to all have a loving relationship with Caleb. During the physical examination, Caleb was found to be at the 50th percentile in terms of his head circumference, his soft spot sunken was normal, and Caleb exhibited age appropriate responses. Overall, Caleb appeared to be a well baby. Dr. Ghatan also noted that the illness, symptoms or injuries that led to Caleb’s hospitalization appear to be fully resolved and that one would never know upon examining him now, that he was ever unwell. Dr. Ghatan reiterated the symptoms and findings in the images and Montefiore medical records. Dr. Ghatan further noted that the MRI done at Montefiore showed evidence of a very limited cerebral brain venous thrombosis where the blood clots inside of a blood vessel and a little bit of it spills into the space around the brain. Dr. Ghatan described this thrombosis as focal in nature, which he went on to explain is significant because a focal injury is not something that can be administered by somebody, unless it is in the operating room with pinpoint accuracy, nor can it occur accidentally, unless there are other signs of trauma surrounding it. Therefore, it is not a result of trauma, but rather the following three possibilities or a combination of them. First, it can be metabolic, the child’s regulation of his checks and balances; second, it can be infectious because at Caleb’s age, doctors worry about a child’s susceptibility to infection as he is building up his own immunity; or third, inflammatory conditions. Dr. Ghatan clarified that there were no other signs of trauma in Caleb; no blood that layers over the brain or bruises in the brain. Dr. Ghatan further testified to the risk factors that could cause the kind of focal bleeding found in Caleb. Dehydration is a big risk factor for thrombosis and another big concern is an infection Caleb had when one of his extra digits was falling off. Yet another risk factor is COVID-19 since Ms. R tested positive, and Ms. P. later tested positive for antibodies. Dr. Ghatan went on to state that Caleb was hospitalized in the middle of the novel coronavirus pandemic, so pre, mid and post-COVID, every emergency room doctor thinks foremost about infection. This is one of the reasons that antibiotics and antivirals are administered right away, because the thrombosis that occurs in the setting of infection can be rapidly failing. Per Dr. Ghatan, Caleb’s negative COVID test does not rule out COVID. This is evidenced by Caleb’s grandmother Ms. P. testing negative for COVID, though she had COVID symptoms and ultimately tested positive for COVID antibodies. Dr. Ghatan elucidated that COVID testing is not 100 percent accurate, and the science of COVID in infants is still evolving, so when Caleb presented at Montefiore during the COVID-19 pandemic, Caleb’s COVID exposure would weigh heavily on the minds of people who are greeting this family in the emergency room and it is very relevant to his presentation. The growth of fluid noted in the July 7, 2020 MRI was explained by Dr. Ghatan as something that naturally occurs after infection and happens after inflammation as well as after over two weeks in the hospital if a child has thrombosis, and is given anticoagulation. Dr. Ghatan notes this fluid is not a sinister problem that anybody caused. In addition to reviewing Caleb’s Montefiore records and speaking with Caleb’s caretakers, Dr. Ghatan consulted with Dr. Lefton, a Mount Sinai neuroradiologist, and Dr. Tawanzy, a pediatric retinal specialist. Dr. Ghatan attempted to speak with Dr. Bello, but was unsuccessful. In his conversation with Dr. Tawanzy, Dr. Ghatan discussed that he did not feel that the retinal hemorrhage was consistent with trauma. Dr. Ghatan noted that in abusive head trauma, the pattern of the retinal hemorrhage is much more severe than in this case where they were focal and isolated. Dr. Ghatan reached an opinion to a reasonable degree of medical certainty that the cause of Caleb’s thrombosis was a combination of dehydration, inflammation and infection. Dr. Ghatan explains that his opinion includes dehydration as a factor despite Caleb’s medical records from Montefiore not showing electrolyte abnormalities because in mild and moderate forms, there may not be a change in electrolytes, but a child is going to be dehydrated if they are not eating and if they have dry diapers, both of which Caleb presented with prior to his hospitalization. Dr. Ghatan further explained that by the time electrolyte abnormalities occur, a child is severely dehydrated to the point where they are nearly dead. This abnormality would not be picked up by lab results for regular day to day dehydration. Additional factors include Caleb’s exposure to COVID as well as the medical interventions at Montefiore Hospital. COVID was considered by Dr. Ghatan as a factor in reaching his opinion to a reasonable degree of medical certainty because COVID exposure causes a significant thrombotic predisposition, particularly in the brain, the lungs, and the kidney, similar to Caleb’s thrombosis in his brain. Dr. Ghatan strongly opined that Caleb’s medical findings were not caused by trauma based on the locality of the problem, the location, and pattern of bleeding. Dr. Ghatan explained that another reason he had an opinion to a reasonable degree of medical certainty that Caleb’s findings were not caused by trauma is because he had no bruising around the brain or skull, and no torn veins where blood spills out over the surface and layers over the brain. As for location, Dr. Ghatan clarified that the subdurals seen in Caleb were little pieces of blood clot that have settled in the back because they are dense. With gravity they settle at the back of the head, both above and below the tentorium. Dr. Ghatan concurred with Dr. Bello’s opinion that the density on the CT scan represented that the blood could have slid down to the back of the head that is just above your neck because that is where it is on the scan. Dr. Ghatan testified that if Caleb had been shaken, he would expect to see first and foremost, injury to Caleb’s spinal cord and bleeding around the base of the spine. This is due to babies having poor neck control, if a baby is shaken, this would be a strong indication. Dr. Ghatan further testifies that if Caleb were shaken, he would expect to see bruising at the front of his brain, at the frontal poles, and blood that spills out over the surface and layers over the brain. None of these injuries were observed or noted by Montefiore staff, was present in any imaging, or noted by Dr. Ghatan himself. Dr. Ghatan further noted that the retinal hemorrhages are not associated with trauma because the hemorrhages were only in one eye. Where there is a shaking or battering mechanism in a body where the brain is hit, this would affect both eyes and not just one. Further, Dr. Ghatan notes in abusive head trauma, the pattern of the retinal hemorrhage is much more severe than in this case where they are focal and isolated. Where there are suspicions of child abuse, Dr. Ghatan believes that a holistic approach should be taken by a medical professional. Specifically, this approach would include speaking to the child’s caretakers, speaking to the treating pediatrician, conducting a physical examination, relying on recommendations from other medical specialists, and taking into account a child’s exposure to a new virus causing a world-wide pandemic. Dr. Ghatan did not believe Dr. Hoffman-Rosenfeld took these steps in coming to her conclusion. VI. AFFIDAVITS OF ROBERT B MIRIAM P AND YVETTE S In both the maternal and paternal grandmothers’ affidavits, Ms. P and Ms. S both express the love and care their children provide to Caleb and Miabella. They also express that neither one of them has seen Ms. R or Mr. S hurt Caleb or Miabella. Ms. P further indicates that she watched Caleb on June 25, 2020 as this was Ms. R’s second day back at work from maternity leave. She indicated that she noticed Caleb was eating less and sleeping more. She informed Ms. R of this concern and Ms. R also acknowledged her concern over this. Ms. P denies hurting Caleb in any way that day or ever. As Miabella’s father, Roberto B indicates to the Court that he is aware of the allegations in this case from speaking with Ms. R and with the ACS caseworker. He acknowledges that since he does not reside with Ms. R he cannot say definitively what if anything occurred on June 25, 2020. However, Mr. B states that he knows no one, Ms. R and Mr. S included, has ever harmed Miabella. Mr. writes, “When you meet someone, you can tell what kind of person they are. And I know Gina. These allegations do not seem true to me and my experience with Gina as a parent.” LEGAL ANALYSIS & DISCUSSION Family Court Act §1028 requires that this Court grant the Respondents’ application for the return of the subject children Miabella and Caleb unless it finds that returning the children would present an imminent risk to their lives 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 continued removal might bring, and it must determine factually which course is in the children’s best interest. Additionally, the Court must specifically consider whether imminent risk to the children might be eliminated by other means, such as issuing a temporary order of protection or providing services. This is a res ipsa case with three respondents. Although this is a 1028 hearing for only two of the respondents, 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 maintains the burden to show that Caleb’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). In Matter of Nicole C. (Jane C.), 39 Misc. 3d 1241(A) (Kings Cty. Fam. Ct. 2013), a res ipsa abuse case, the Court considered evidence about the family’s history and functioning including the fact that the parents were happy about the pregnancy, diligently prepared for the birth of their child, and demonstrated their love and affection for their child, in addition to the contested medical evidence, and found that the respondents had successfully rebutted petitioner’s prima facie case of abuse. 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 Caleb’s medical findings were not indicative of trauma. As such, ACS did not meet its burden of establishing that Caleb’s medical findings were more likely than not a result of his caretakers’ acts or omissions. 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 Caleb and Miabella can be released safely to the Respondents Ms. R and Mr. S Dr. Hoffman-Rosenfeld, testifying on behalf of ACS, testified that, in her opinion, no other possible explanation existed to explain Caleb’s medical findings but for a diagnosis of abusive head trauma. Her conclusion was not based on an explanation as to why these findings are more likely than not consistent with abusive head trauma, or child abuse, but rather, her opinion was based on her assertion that there is no other reasonable explanation that can explain all of the medical findings. When questioned on cross examination, Dr. Hoffman-Rosenfeld adamantly denied the possibility of Caleb being dehydrated since his electrolyte levels were normal and also adamantly denied the possibility of Caleb exhibiting symptoms or complications from an infection or inflammation possibly stemming from the removal of his extra digit or exposure to COVID-19. To support Dr. Hoffman-Rosenfeld’s conclusion, ACS called Dr. Bello to testify and entered various published articles into evidence detailing how Dr. Hoffman-Rosenfeld’s findings are in line with current medical literature. Quite notably, however, Dr. Bello did not explicitly state nor did she imply during her testimony that she concurred with Dr. Hoffman-Rosenfeld’s opinion. Also notably, while ACS asked Dr. Bello to be qualified as an expert for her testimony, at no time did Dr. Bello provide an opinion with a reasonable degree of medical certainty what she believed to be the cause of Caleb’s findings. In fact, Dr. Bello’s testimony appeared to align more with Dr. Ghatan’s findings than Dr. Hoffman-Rosenfeld’s findings. The Court finds that both Dr. Ghatan and Dr. Bello testified credibly and affords their testimony great weight. Both of their testimonies greatly disputed Dr. Hoffman-Rosenfeld’s analysis. The Court does note that Dr. Ghatan appeared slightly defensive during cross-examination by the attorney for the Petitioner, however, the Court finds that his testimony was thorough and credible. In stark contrast to Dr. Hoffman-Rosenfeld’s testimony. Dr. Ghatan was able to provide a holistic view to connect his findings to the specific nature of Caleb’s injuries. He examined the child twice as well as the full medical records from Montefiore including all imaging. Dr. Ghatan testified that he found it to be of critical importance to conduct a careful interview with the caretakers present in order to get their explanation as well as all medical history in detail. In contrast, Dr. Hoffman-Rosenfeld’s testimony lacked a connection between her testimony and the actual findings on the imaging and symptoms. On the other hand, Dr. Ghatan concluded that Caleb’s inflammation and/or dehydration could logically fit with Caleb’s presented medical findings. In fact, Dr. Ghatan found that none of the possible mechanisms of abuse fit Caleb’s findings at all. For example, Dr. Ghatan explained that another reason he had an opinion to a reasonable degree of medical certainty that Caleb’s findings were not caused by trauma is because he had no bruising around the brain or skull, and no torn veins where blood spills out over the surface and layers over the brain. Dr. Ghatan testified that if Caleb had been shaken, he would expect to see injury to Caleb’s spinal cord and bleeding around the base of the spine, bruising at the front of his brain, at the frontal poles, and blood that spills out over the surface and layers over the brain. Dr. Ghatan further noted that the retinal hemorrhages are not associated with trauma because Caleb’s hemorrhages were only in one eye. And if these hemorrhages were a result of trauma from shaking, this would affect both eyes and not just one. The fact that Dr. Hoffman-Rosenfeld can provide general information about child abuse in her capacity as an expert on this subject is not persuasive where she was unable to adequately explain how Caleb’s medical findings were the result of abuse or why they could not be from a systemic issue such as dehydration, inflammation, or due to a possible infection. Absent from Dr. Hoffman testimony is any explanation as to how the findings led her to believe that Caleb was a victim of child abuse and diagnosed with head trauma. At most, Dr. Hoffman opined that a diagnosis of Abusive Head Trauma would explain all of the findings, but does not specifically state how this is so, or why none of these findings could be anything else, specifically what the Respondents presented on their rebuttal case. When questioned regarding dehydration or possible consequences of an infection, either from the removed digit or suspected COVID, Dr. Hoffman-Rosenfeld appeared resistant to even acknowledging that medical information about COVID-19 and how it affects the human body remains unknown, and specifically, in infants is still an ongoing discovery.1 To adamantly deny that Caleb may have been dehydrated, but was drinking approximately one quarter of his normal milk intake for almost two days, this Court finds that Dr. Hoffman Rosenfeld overlooked or may have ignored crucial information. A further issue with Dr. Hoffman-Rosenfeld’s testimony is that she did not distinguish between the blood clot, the blood in the posterior fossa, and the subdural effusion. Dr. Hoffman-Rosenfeld’s testimony provided no information as to the location or focality of the clot, nor did she provide any information about the pattern of bleeding that was identified, or its significance to her opinion that Caleb was the victim of abuse. In her testimony. Dr. Hoffman-Rosenfeld conflated these separate medical findings, which led her to conclude that someone shook Caleb, potentially on more than one occasion. Dr. Hoffman-Rosenfeld testified that there were subdural collections identified, that may have been difficult to tell the difference between acute clot and adjacent subdural. This testimony conflated two different medical findings that Dr. Bello testified were unrelated to one another. Specifically, the bleeding around the clot, which both Dr. Bello and Dr. Ghatan described in detail, which over time, settled near the base of Caleb’s neck in his posterior fossa and the subdural collections or effusions, which Dr. Bello explained was unrelated to the blood around the clot. The phrasing of “subdurals” used by Dr. Hoffman-Rosenfeld suggests that she equated the subdural bleeding caused by the thrombosis overflowing the banks of the veins with the subdural effusions, which were completely unrelated, and as Dr. Bello explained, had different addresses. Dr. Bello stated that she could not determine whether the subdural effusions were chronic hemorrhage, high-protein CSF caused by infection, or concentrated CSF. Dr. Bello testified that if the subdural effusions were blood, the blood was chronic, meaning weeks old. Dr. Hoffman-Rosenfeld relied on Dr. Bello for her opinion regarding the subdural effusions, but this Court concurs with the attorney for Ms. R’s argument, that to rely on this opinion would require the Court to believe that Ms. R Mr. S or Ms. P shook Caleb, and that they did so on more than one occasion at least weeks apart, in this three month old child’s life. Dr. Hoffman-Rosenfeld’s theory of violent shaking requires at least two violent shakes, because the subdural effusions, if hemorrhage, were weeks old, and the clot and the consequent blood in the posterior fossa were much newer. There is no evidence presented by the Petitioner to suggest that Caleb was shaken in a first instance, let alone a second instance. 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 conclusion was questionable in this case, especially as she appeared to conflate some of Dr. Bello’s findings. Aside from being unable to adequately explain how Caleb’s medical findings were a result of abuse. Dr. Hoffman-Rosenfeld was not able to explain how Caleb’s medical findings could not have resulted from a combination of dehydration and inflammation. As such, the Petitioner has not met its burden in proving that it is more likely than not that Caleb suffered from abusive head trauma. While this Court finds Dr. Hoffman-Rosenfeld may have benefitted from speaking with Mr. S about Caleb’s medical history, this Court does not believe that her failure to do so greatly contributed to her conclusions nor does it show any intentional wrongdoing on her part, as she did review the extensive record including the parents’ account of Caleb’s symptoms and medical history. The Court does find that Dr. Hoffman-Rosenfeld’s failure to speak with Ms. R was understandable under the circumstances. Dr. Hoffman-Rosenfeld did attempt to speak with Ms. R however, Ms. R did not feel comfortable doing so without someone from her attorney’s office present as well. If a parent is unable or unwilling to speak with a treating doctor, this would not necessarily make the treating doctor’s diagnosis inaccurate or incomplete. This Court notes, however, that Ms. R did not refuse to speak with Dr. Hoffman-Rosenfeld, though Dr. Hoffman-Rosenfeld’s next step was understandably to consult with the hospital legal team who advised her not to talk to Ms. R with Bronx Defenders present. The Court credits both Ms. R and Mr. S’s testimony. Both parents testified clearly, were never evasive, looked at the camera throughout their testimony and were calm except when Ms. R became understandably emotional discussing her initial shock when her children were removed from her care and when she was worried about Caleb’s health at the time she brought him to the hospital. This Court also notes that Ms. R testified on a moment’s notice, without more than a 10-15 minute opportunity to discuss this with her counsel when ACS was not prepared to go forward on the first date of this hearing. At this hearing, Petitioner failed to show that returning Caleb and Miabella to the Respondents would place them in imminent risk, further reassuring 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 the parents’ 1028 application in this case. There is no statutory rule against returning a child while an Article 10 abuse case is still pending. The case cited by ACS, In re Daniel O., 141 A.D.3d. 434 (1st Dep’t 2016), does not apply here, as that case had more concerning factors where there were injuries against multiple children. Furthermore, the Court’s ruling in that case centered on the lower Court’s unsupervised visitation order after declining to hold a hearing. In stark contrast, this Court has held an extensive hearing in the instant matter with expert witnesses and an abundance of documentary evidence. This Court has heard ample testimony and has received in evidence documents, pictures, and videos that demonstrate that the Respondents were attentive to Caleb’s medical needs, ensured that he received treatment, and sought emergency medical care on occasions when they believed it was necessary. In the absence of any definitive explanation for the exact cause of Caleb’s medical findings, the Court cannot exclude the possibility that one of the respondents intentionally injured Caleb. In this Court’s estimation, however, that is highly unlikely. By all accounts, Caleb was well cared for prior to the instant hospitalization, the parents ensured that Caleb received proper medical care, and the parents demonstrated an ongoing attentiveness to both children’s medical, emotional and physical needs. Specifically, Ms. R made sure to communicate with Miabella throughout her hospital stay while caring for Caleb and ensured that she maintained her and Miabella’s connection. Furthermore, the parents’ texting between one another also demonstrates serious and genuine concern for Caleb in the hours leading up to him going to the hospital. 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 Caleb and Miabella’s release prior to a full fact-finding hearing, which would have similar evidence presented. Finally, the Court disagrees with ACS’s argument that the Respondents have not acknowledged the circumstances that led to the removal or shown any insight into the seriousness of the allegations. Here, neither parent has had any prior ACS involvement. There was no evidence presented that the parents were directly involved in causing the medical findings of Caleb, or any showing that they did not take these allegations seriously. While the Petitioner’s assertion is correct that the parents, despite engaging in services, have not shown insight into their supposed actions contained in the allegations, this is simply due to the fact that the parents likely did not commit the very act they are being accused of. As such, the only insight the parents may be able to gain is how to respond when their child appears to be unwell. However, as evidenced extensively in the testimony, Ms. R and Mr. S acted entirely appropriately under the circumstances by calling the pediatrician, taking Caleb to the emergency room and staying with him in the hospital for over two weeks. CONCLUSION WHEREFORE, based upon the foregoing, the Court grants the Respondents’ motion, and the subject child Caleb S is temporarily released to the care of the Respondent Mother Gina R and Respondent Father Duvaughn S under ACS supervision, and the subject child Miabella S is temporarily released to the care of the Respondent Mother Gina R under ACS supervision, and under the following conditions: 1. The Respondents shall comply with ACS supervision including announced and unannounced visits; 2. The Respondents shall continue in individual counseling until deemed no longer necessary by a mental health professional; 3. The Respondents shall have the child Caleb subjected to a full-body examination by his pediatrician once every three weeks and sign a HIPPA release to allow ACS to speak with Caleb’s pediatrician to ensure that the child is being well cared for; 4. The Respondents are to complete a parenting skills course if not yet completed; 5. Neither Respondent shall engage in the use of corporal punishment of any kind on the children Miabella and Caleb; and 6. 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. Dated: September 2, 2020