                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     518331
_________________________________

In the Matter of NATALIE AA.
   and Another, Alleged to be
   Abused, Severely Abused and
   Neglected Children.

CLINTON COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                         OPINION AND ORDER
                    Respondent;

KYLE AA.,
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   April 21, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                             __________


     Jessica C. Eggleston, Saratoga Springs, for appellant.

      Christine G. Peters, Clinton County Department of Social
Services, Plattsburgh, for respondent.

     Matthew Douthat, Plattsburgh, attorney for the children.

                             __________


McCarthy, J.

      Appeals (1) from two orders of the Family Court of Clinton
County (Lawliss, J.), entered September 27, 2013 and November 29,
2013, which, among other things, partially granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate the subject children to be, among other things,
abused and neglected by respondent Kyle AA., and (2) from the
                              -2-                518331

orders of protection issued thereon.

      Respondent Kyle AA. (hereinafter the father) and respondent
Amanda AA. (hereinafter the mother) are the parents of Natalie
AA. (born in 2010) and Nora AA. (born in 2013). In March 2013,
while in the care of the father, Nora, then approximately seven
weeks old, became flaccid and started turning blue. After being
taken to a local hospital, Nora presented with seizure activity.
Physicians cumulatively diagnosed Nora with subdural hematomas,
subarachnoid and retinal hemorrhages and intraventricular
bleeding. Petitioner thereafter commenced separate proceedings
against the father and the mother, alleging neglect, abuse and
severe abuse on the theory that Nora had suffered from abusive
head trauma. In September 2013, after a fact-finding hearing,
Family Court dismissed the petition against the mother, but found
that the father had neglected and abused Nora and had
derivatively neglected and abused Natalie. In October 2013, a
one-year order of protection was entered against the father and,
in November 2013, a dispositional order to the same effect was
entered. An order of protection of the same length was also
entered that directed the mother to ensure that, among other
things, the father was not left alone with the children. The
father now appeals from the September 2013 order, the two orders
of protection and the November 2013 order.1

      We agree with the father that petitioner failed to prove by
a preponderance of the evidence that he abused and neglected
Nora. A child is abused when a parent inflicts "physical injury
by other than accidental means which causes or creates a
substantial risk of death, or serious or protracted
disfigurement, or protracted impairment of physical or emotional
health" (Family Ct Act § 1012 [e] [i]; see Matter of Nicholas S.
[John T.], 107 AD3d 1307, 1309 [2013], lv denied 22 NY3d 854
[2013]; Matter of Keara MM. [Naomi MM.], 84 AD3d 1442, 1443
[2011]). A child is neglected when a parent's "failure . . . to


    1
        The appeals from the orders of protection must be
dismissed given that those orders were entered upon consent (see
Matter of Trenton G. [Lianne H.], 100 AD3d 1124, 1125 [2012];
Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 681 [2010]).
                              -3-                518331

exercise a minimum degree of care . . . in providing the child
with proper supervision or guardianship" results in the
impairment or imminent risk of impairment of the child's
"physical, mental or emotional condition" (Family Ct Act § 1012
[f] [i] [B]; see Matter of Javan W. [Aba W.], 124 AD3d 1091, 1091
[2015]; Matter of Cadence GG. [Lindsay II.], 124 AD3d 952, 953
[2015]). "'[A] prima facie case of child abuse or neglect may be
established by evidence of (1) an injury to a child which would
ordinarily not occur absent an act or omission of [the]
respondent[], and (2) that [the] respondent [was] the caretaker[]
of the child at the time the injury occurred'" (Matter of Brayden
UU. [Amanda UU.], 116 AD3d 1179, 1180 [2014], quoting Matter of
Philip M., 82 NY2d 238, 243 [1993]; see Family Ct Act § 1046 [a]
[ii]). While a petitioner always bears the burden of proving
abuse or neglect by a preponderance of the evidence, after a
prima facie case has been established, it is incumbent upon the
respondent to provide a reasonable explanation for the child's
injuries (see Matter of Philip M., 82 NY2d at 244; Matter of
Brayden UU. [Amanda UU.], 116 AD3d at 1180; Matter of Ameillia
RR. [Megan SS.–Jered RR.], 112 AD3d 1083, 1084 [2013]).

      Respondents' respective testimony established that Nora
began exhibiting signs of injury while under the sole care of the
father. The father, a pediatric nurse, testified that, while he
was changing Nora's diaper, she began to go limp and turn a shade
of blue. The father thereafter sought medical assistance, and
Nora was transferred to a local hospital, where she presented
with seizure activity. The father denied that Nora was cranky
that day, that he had been upset with her or that he had shaken,
thrown or otherwise harmed her.

      Daniel Anhalt, an emergency room doctor, was the first
physician to see Nora upon her arrival at the hospital. He
testified that, at the time of Nora's arrival, she was exhibiting
seizure activity, but that she was oxygenating well and did not
have a fever. Anhalt ordered certain tests to be done, one
purpose of which was to look for any infection that could have
caused the seizures. Anhalt testified that the test results
established, among other things, that Nora's white blood cell
count was not elevated. Anhalt testified that the results of the
test did not show "any obvious signs of infection." On cross-
                              -4-                518331

examination, Anhalt admitted that Nora's white blood cell count
was "very minimally elevated," to a degree that was not
clinically significant. He testified that one reason that he
concluded that such a count was not clinically significant was
that seizure activity can raise white blood cell counts.

      Anthony Ching, a pediatric specialist who also administered
care to Nora on the day of the incident, testified that he tested
her vital signs and reflexes, all of which were normal apart from
intermittent seizures. Ching testified that respondents reported
to him that Nora had colic. Based on the subdural hematoma,
Ching concluded that Nora's injuries were the result of
nonaccidental trauma. Matthew Adamo, a pediatric neurosurgeon,
also evaluated Nora. He noted that a CAT scan, as well as an
MRI, revealed a subdural hematoma and the presence of
subarachnoid blood and intraventricular blood. From these
results, Adamo diagnosed Nora with a possible traumatic brain
injury – i.e., "an event that occurs with . . . some force to the
brain that can either be [an] acceleration or a deceleration of
the brain." Adamo further testified that he was familiar with
the diagnosis of cortical venous thrombosis, which he described
as a blood clot in one of the veins in the brain. He testified
that cortical venous thrombosis was typically visible on a
magnetic resonance venography scan and that such a scan of Nora
did not show any evidence of that condition. However, Adamo
modified that testimony to some extent and acknowledged that
"[t]here may [have been] a small cortical venous thrombosis." He
further stated that "a very small thrombosis is unlikely to cause
any major bleeding," but also acknowledged that Nora's case was
"not a large bleed." Adamo further testified that an MRI
revealed that Nora had no swelling in the brain.

      In addition, Adamo testified that he was unable to offer an
explanation for the cause of Nora's condition. As to possible
causes, Adamo asserted that the existence of a retinal hemorrhage
in only one eye, as in Nora's case, is not diagnostic of either
accidental or nonaccidental trauma, due to the possibility that
such retinal bleeding is the result of blood that migrated from a
different area. Comparing one-eyed retinal hemorrhages to
bilateral retinal hemorrhages in reference to trauma, Adamo
explained that "bilateral hemorrhages are much more common in
                               -5-                518331

nonaccidental cases." Adamo opined that, without more, a fever
and a viral infection would not cause hemorrhaging, but that such
a result was possible if a patient also had a severe sinus or ear
infection. Adamo acknowledged that Nora did not display any
external signs of trauma.

      The remainder of the medical testimony introduced at the
hearing came in the form of expert testimony of physicians who
had not directly treated Nora. Karyn Patno, a specialist in
child abuse pediatrics, testified on behalf of petitioner. She
opined that, to a reasonable degree of medical certainty, Nora
had suffered subdural, subarachnoid, intraventricular and retinal
hemorrhages, and that, because no reasonable explanation for such
injuries had been provided, the cause was most likely abusive
head trauma resulting from, at a minimum, shaking.2 Joseph
Scheller, a child neurologist, testified on behalf of the father.
He opined that, to a reasonable degree of medical certainty, Nora
had suffered a venous thrombosis, which led to bleeding that
precipitated seizures and retinal hemorrhaging. The resolution
of whether petitioner established that the father abused and
neglected Nora or whether Nora suffered a spontaneous medical
event largely rests on the resolution of the competing medical
opinions from these highly credentialed medical subspecialists
who had the greatest access and opportunity to review pertinent
records and information related to Nora.

      Patno and Scheller (hereinafter collectively referred to as
the experts) primarily disagreed as to the reasonableness of the
conclusion that an infant could be determined to have been shaken
based on certain combinations of retinal hemorrhages, bleeding
around the brain and brain swelling – despite the lack of
evidence of external injuries, broken bones or neck injuries.
Scheller testified that controlled laboratory experiments have
never confirmed that the mechanism of shaking actually causes the
specific injuries thought by some medical professionals to be
sufficient to diagnose that an infant had been shaken. Patno
agreed with Scheller, acknowledging that, for obvious ethical


     2
        Abusive head trauma is sometimes referred to as shaken
baby syndrome.
                               -6-                518331

reasons, "you can't do the experiment that you need to do to
prove or disprove this whole theory." Scheller further testified
that the laboratory experiments done on the topic – which are
almost 30 years old and involved animal test subjects – attempted
to replicate the mechanism that was theorized to cause shaken
baby syndrome and could not do so by shaking alone. Patno
disregarded such studies as unpersuasive due to methodological
flaws. Patno further asserted that support for her conclusion
that shaking is a mechanism that would cause the specific
injuries that Nora presented comes from studies of the injuries
to infants who people have confessed to having shaken.

      Otherwise, the experts largely agreed as to the social
factors that helped support or exclude a theory of nonaccidental
trauma. Patno testified that, in making a diagnosis, she
assessed risk factors associated with perpetrators and the
victims of abusive head trauma. She testified that the father
did not possess any of the risk factors that she considered
relevant for a perpetrator of nonaccidental abusive head trauma.3
Patno testified that Nora presented the single risk factor of
being a fussy baby,4 which Patno asserted was the most important
risk factor to consider in diagnosing abusive head trauma.

      Turning to the assessment of Nora's medical condition, the
experts disagreed as to whether Nora exhibited signs of a fever
and what weight such a potential fever would have in establishing
a diagnosis consistent with a nonabusive cause of Nora's
condition. Although there was no evidence that Nora had a fever
when she first began receiving medical care, medical records
established that, on the day after her hospital admission, Nora
twice had a fever of approximately 100 degrees Fahrenheit, and


     3
        According to Patno, the father was not uneducated, did
not have a history of substance abuse, did not suffer from
depression or attention deficit hyperactive disorder, had not
indicated that Nora was an unwanted pregnancy and was neither a
nonbiological father nor unmarried.
     4
        Patno acknowledged that Nora was not born premature, did
not have special needs, was not a male child and was not a twin.
                              -7-                518331

the following day she exhibited a fever of 101.8 degrees
Fahrenheit on two occasions. During that same period, medical
records established that Nora was being given acetaminophen in
the form of Tylenol. Patno testified that she only remembered
seeing one temperature – a low temperature – in her review of
Nora's medical records. She acknowledged that the medical
records did not exclude the possibility that Nora had a viral
condition. Presented with the hypothetical that Nora had a high
temperature over a number of days while she was hospitalized,
Patno agreed that such evidence would be relevant to the
determination of whether Nora was suffering from a viral
condition, although Patno also stressed that it would have to be
put in context with other symptoms. Addressing the hypothetical,
Patno opined that if Nora had a fever, that fact would not have
changed her diagnosis.

      In contrast, Scheller relied on the medical record evidence
that indicated that Nora had a fever and emphasized its
importance. Scheller explained that fevers irritate the brain
and that seizures represent that the surface of the brain has
been irritated. He further explained that infants who develop
blood clots do so as a result of a triggering illness that is
characterized by a fever. Scheller, more so than Patno, stressed
that he found the lack of findings as to Nora's medical condition
important to his diagnosis. Specifically, he emphasized the
importance of the facts that Nora had no broken bones and no neck
injuries, that there was no evidence that Nora had bumped her
head and that Nora's brain was not swollen. Patno did not
dispute these facts. In addition, only Scheller addressed the
specific pattern of bleeding on the surface of Nora's brain.
Scheller explained that Nora had more blood in a compartment
closer to the surface of the brain than a compartment further
from the surface of the brain. He explained that he would expect
to see the majority of blood in compartments further from the
surface of the brain when a subject suffers a traumatic head
injury and the majority of blood in compartments closer to the
surface of the brain when a subject suffers an internal problem
such as a clotting disorder.

      In addition, the experts disagreed as to whether the one-
sided retinal hemorrhage indicated nonaccidental abuse rather
                              -8-                518331

than some nonabusive event. Scheller testified that the fact
that Nora had a single-sided retinal hemorrhage that occurred on
the same side as the subarachnoid hemorrhage indicated that the
former hemorrhage was the result of blood migration from the
latter hemorrhage; the single-sided retinal hemorrhage was likely
a result of the subarachnoid hemorrhage and, therefore, not a
symptom that independently supported a diagnosis of abusive head
trauma. He further opined that it was difficult to imagine why,
if retinal hemorrhaging was the direct result of shaking, only
one eye would have hemorrhaging, given that both eyes would be
shaken equally. Patno agreed that retinal hemorrhaging in both
eyes, compared to that in just one eye, was more common in cases
of a shaken infant, but offered no opinion as to whether, in her
view, such one-sided hemorrhaging supported an abusive head
trauma diagnosis as opposed to a venous thrombosis diagnosis or
was merely not inconsistent with the abusive head trauma
diagnosis. Finally, the experts disagreed as to whether Nora
exhibited an abnormally high white blood count, which would
indicate that her blood clotted more slowly than an average
infant. Patno testified that Nora's count was minimally
elevated, at most, and that such elevation could have been a
result of the seizures. Scheller emphasized that such count was
abnormally high and that a blood clotting condition was more
consistent with his diagnosis.

      In its September 2013 fact-finding order, Family Court
explicitly credited all of petitioner's physician witnesses and
explicitly credited the evidence that the father had led a
productive and law-abiding life and was generally a good parent.
Family Court concluded, however, that Scheller's expert testimony
was unpersuasive, stating that Scheller's assertion that
scientific experiments did not support that Nora's injuries could
be caused by shaking was "contrary to common sense," because "no
study is going to be performed in which young babies are shaken
violently to determine exact[ly] what injuries are likely to be
caused."5 We defer to the aforementioned credibility


    5
        We discern no basis for Family Court's apparent
conclusion that such evidence made Scheller's testimony
unpersuasive. Patno explicitly agreed with Scheller that such
                              -9-                518331

determinations but independently review the weight of the
competing expert evidence.

      As to that review, the uncontested evidence showed that
Nora did not suffer external trauma (compare People v Smith, 41
AD3d 964, 966 [2007], lv denied 9 NY3d 881 [2007]), broken bones
or neck injuries (compare Matter of Joaquin Enrique C. [Anna
Julia F.], 79 AD3d 548, 548-549 [2010]; People v Maddox, 31 AD3d
970, 972 [2006], lv denied 7 NY3d 868 [2006]; People v Yates, 290
AD2d 888, 888 [2002]; Matter of Brandon C., 247 AD2d 380, 381
[1998]), and she had a one-sided retinal hemorrhage (compare
People v Smith, 41 AD3d at 966; People v Yates, 290 AD2d at 888).
Further, the father, a professional pediatric nurse, exhibited
none of the characteristics thought to be diagnostically
predictive of a perpetrator of abusive head trauma (compare
Matter of Seamus K., 33 AD3d 1030, 1033 [2006]), and he
consistently denied that he mishandled Nora (compare People v
Kendall, 254 AD2d 809, 809 [1998], lv denied 92 NY2d 983 [1998];
People v Jones, 236 AD2d 217, 218 [1997], lv denied 89 NY2d 1036
[1997]). The single characteristic that Nora was fussy – while
perhaps almost always present in victims of abusive head trauma –
fails to meaningfully support Patno's diagnosis over Scheller's
diagnosis, given the vast number of fussy infants who are never
physically abused. Further, while Patno testified that abusive
head trauma from shaking often results in a triad of symptoms
that include subdural hematoma, retinal hemorrhaging and brain
swelling (see generally People v Hershey, 85 AD3d 1661, 1662
[2011], lv denied 18 NY3d 883 [2012], cert denied ___ US ___, 132
S Ct 2692 [2012]), the medical evidence uniformly established
that Nora did not suffer from brain swelling. Additionally,
Scheller and Adamo – petitioner's witness – were substantially in
agreement that Nora's single-sided retinal hemorrhaging could be


studies had not been performed in a laboratory setting. The fact
that it would be unethical and illegal to perform such studies
cannot support an assumption that, if such studies had been done,
they would have shown that shaking causes the symptoms that
include those exhibited by Nora. The uncontested limitations of
the scientific support for the diagnosis of abusive head trauma
cannot be held against the father.
                              -10-               518331

the specific result of the subdural hematoma, rather than a
direct result of any potential trauma. Patno failed to offer any
explanation regarding the merits of such a theory or even an
opinion as to whether she believed that such one-sided retinal
hemorrhaging was the direct result of shaking (compare Del Prete
v Thompson, 10 F Supp 3d 907, 932 [ND Ill 2014]). Accordingly,
given Patno's lack of specificity regarding the one-sided retinal
hemorrhage, it is unclear whether she believed that evidence of a
fussy infant who had suffered a subdural hematoma was, by itself,
sufficient to diagnose abusive head trauma.

      We agree with Family Court that Patno's expert opinion that
Nora suffered an injury while in the father's care that would not
have occurred in the absence of his actions was sufficient to
establish petitioner's prima facie case (see Matter of Izayah J.
[Jose I.], 104 AD3d 1107, 1108 [2013]; Matter of Alexander F.
[Raddad I.], 82 AD3d 1514, 1516-1517 [2011]; Matter of Seamus K.,
33 AD3d at 1032). However, contrary to Family Court's
assessment, we find Scheller's expert testimony, which was
consistent with conclusions of Nora's treating physicians and her
medical records in crucial respects, offered a reasonable and
persuasive account of how Nora's symptoms – and lack thereof –
better supported his venous thrombosis diagnosis. This evidence
provided a reasonable explanation for Nora's injuries that did
not implicate the father. Based on Scheller's testimony, and
mindful of the fact that petitioner had the burden of proof, we
cannot conclude that petitioner established by a preponderance of
the evidence that the father caused Nora's injuries so as to
support a finding that he abused and neglected her (see Matter of
Marquise W., 269 AD2d 400, 400 [2000]). In addition, because the
derivative abuse and neglect findings in regard to Natalie were
dependant on the findings of direct abuse and neglect of Nora,
those derivative findings are also unsupported by the record (see
Matter of Leon K. [Marilyn O.], 69 AD3d 856, 857-858 [2010]; see
e.g. Matter of Randy AA., 265 AD2d 690, 692 [1999]).

     Lahtinen, J.P., Garry and Rose, JJ., concur.
                              -11-                 518331

      ORDERED that the appeals from the orders of protection
entered October 21, 2013 are dismissed, without costs.

      ORDERED that the orders entered September 27, 2013 and
November 29, 2013 are modified, on the law, without costs, by
reversing so much thereof as granted petitioner's application
with respect to respondent Kyle AA.; petition dismissed in its
entirety; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
