In re Lahrick L. , 500 N.Y.S.2d 266 ( 1986 )

— In proceedings pursuant to Family Court Act article 10 for adjudications as to whether certain children are abused or neglected, the appeal is from an order of the Family Court, Kings County (Rand, J.), dated September 24, 1985, which, after a hearing, dismissed the petitions.

Order reversed, without costs or disbursements, and matters remitted to the Family Court, Kings County, for a de novo fact-finding hearing before a different Judge. In the interim, Lahrick L. is to remain in the custody of his paternal grandmother, and Michelle C., Angelique C., Omega C., and Althea C. are to remain in the home of the respondents under the supervision of Special Services for Children.

On January 9, 1985, the infant Lahrick L. was hospitalized with extensive first and second degree burns to both of his legs, his feet and his right arm. The New York City Commissioner of Social Services brought five separate petitions against Lahrick’s mother and maternal grandmother, alleging that Lahrick and his four siblings were either abused or neglected children pursuant to Family Court Act § 1012 (e) or (f).

At a fact-finding hearing on the petitions, Dr. Moohr, the associate director of pediatrics at the hospital where Lahrick was treated, testified that, based upon his experience as a specialist in the field of burns and his personal examination of the infant 36 to 48 hours following his admission to the hospital, the burns were caused by contact with a hot liquid.

In opposition to that testimony, the mother and the maternal grandmother insisted that Lahrick, who was five months old at the time of the incident, received the burns when he rolled off the bed where he had been left alone to sleep and was wedged next to a hot radiator pipe for an undetermined period of time.

At the conclusion of the hearing the Family Court dismissed the petitions with the following words: "The Court finds that this is a most difficult situation. Although there are some questions that still are unanswered in the Court’s mind concerning some of the issues regarding the injuries of the child, I find that the petitioner did not meet that standard of evidence which would make [out] a finding of child abuse or neglect”.

On this appeal, the mother argues that the Family Court correctly dismissed the petitions in view of the adequate explanation of the injuries offered by them. The petitioner, on its part, contends that the Family Court erred in dismissing the petitions in view of the undisputed proof of serious injury to Lahrick and the respondents’ failure to offer an adequate explanation for the injury. The petitioner urges that findings of abuse and neglect should be entered and that the case should be remitted to the Family Court for a dispositional hearing.

By contrast, the children’s Law Guardian argues that because the record was inadequate to determine whether or not Lahrick and his siblings were abused or neglected, the matter should be remitted to the Family Court for further proceedings. The Law Guardian points out that the testimony presented an unresolved conflict concerning whether Lahrick’s burns resulted from contact with hot liquid or a hot metal object and that the Family Court Judge implicitly recognized that fact at the end of the fact-finding hearing. The Law Guardian goes on to argue that additional expert testimony is required to elucidate the source of Lahrick’s burns and help evaluate whether they were incurred as a result of abuse or neglect and that on the present state of the record it would be precipitate to enter findings of fact against the respondents. Since the hearing, the Law Guardian has engaged the services of an independent medical witness who is prepared to testify that contrary to Dr. Moohr’s testimony, Lahrick’s burns were not splatter burns but were consistent with burns sustained as a result of contact with a hot metal object. While thus supporting the respondents’ explanation for the possible origin of the burns, this expert has concluded that, contrary to the respondents’ testimony, the burns were not likely to have been accidental and that a five-month-old infant does not possess sufficient mobility to roll the distance alleged by the respondents. However, this material is dehors the record.

Nevertheless, in view of the uncertainty engendered by the record we conclude that a de novo hearing is crucial for an informed determination by the Family Court with respect to whether Lahrick and his siblings have been abused or neglected by the respondents. At that hearing, new material may be presented. Hence, we reverse the order of the Family Court dismissing the petitions and order a new fact-finding hearing as requested by the Law Guardian. Mollen, P. J., Bracken and Niehoff, JJ., concur.