Although a Prima Facie Case of Abuse and Neglect Was Made Out, Father’s Expert Provided Persuasive Evidence the Child’s Injuries Were Not the Result of Abuse—The Abuse and Neglect Findings Were Not, Therefore, Supported by a Preponderance of the Evidence

The Third Department, in a full-fledged opinion by Justice McCarthy, reversed Family Court’s finding that father abused and neglected his infant daughter (Nora).  The trial was essentially a “battle of experts” [Patno was the Department of Social Service’s expert; Scheller was father’s expert]. The Third Department determined the Department of Social Services had made out a prima facie case of abuse and neglect (expert testimony that Nora’s physical condition was caused by shaking) but, under a weight of the evidence analysis, father’s expert provided the best explanation for Nora’s injuries—an explanation which did not implicate father.  The court noted that father did not exhibit any characteristics associated with an abusive parent and father’s expert’s “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 … diagnosis:”

…. [T]he uncontested evidence showed that Nora did not suffer external trauma …, broken bones or neck injuries …, and she had a one-sided retinal hemorrhage … . Further, the father, a professional pediatric nurse, exhibited none of the characteristics thought to be diagnostically predictive of a perpetrator of abusive head trauma …, and he consistently denied that he mishandled Nora … . 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 …, 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 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 … . 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. Matter of Natalie AA. (Kyle AA.), 2015 NY Slip Op 04889, 3rd Dept 6-11-15