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The Department of Children and Family Services (DCF) appeals the trial court’s final


The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

The investigator then met with her DCF supervisor in Miami because she wanted to share with him her concerns about the child. They agreed that the Miami DCF office could not place a hold on the child because the Miami office lacked jurisdiction as the child was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, the investigator received a phone call from a social worker at MCH. The investigator informed the social worker that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to the investigator’s testimony, the social worker informed her that a hold was appropriate at that time because of all of the concerns regarding the child’s safety. The investigator testified that she shared these concerns with the social worker.

The investigator testified that the social worker then consulted with her supervisor at MCH, and both the social worker and her supervisor called the investigator again on December 12, 2000, which was the second phone call that day from the social worker to the investigator. The investigator testified that the social worker and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator who would be following up on the case so that they could speak with that person. Ten minutes later, the investigator called the DCF office and was informed that before the case could be reassigned to another investigator, she would have to update the computer with all of the information concerning the case. While updating the computer, she received a third phone call from the social worker, who again sounded concerned. She testified that she had nothing new to tell the social worker because she was still in the process of updating the computer and that no investigator had been assigned to the case at that point. After completing the update, she called DCF in Lake Worth, informing them that the update had been completed, and she was given the name of the protective investigator in Lake Worth assigned to do the OTI. The investigator testified that she told the Lake Worth office that the case was urgent because there were many concerns about the mother’s ability to care for the child. She also testified that she then called the social worker and informed her that the case had been reassigned and gave her the name of the DCF protective investigator.

Thereafter, a DCF attorney advised the investigator that DCF must contact the father of the child’s half-sister in New Jersey, run criminal checks on the mother and boyfriend, staff the case with the Child Protection Team (CPT), and complete a home study before the child is sent home. The investigator testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. The DCF investigator in the Lake Worth office testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.

As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. The DCF supervisor testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. The CAT head also testified that he was not serving in any official capacity as part of a CPT. A DCF’s own retained expert testified that there was no CPT or equivalent review of the child’s medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 11, 2001. The DCF expert agreed that a CPT review of the child’s available charts and medical history would have shown that the child more likely than not was the victim of abusively-inflicted injuries. Furthermore, the expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.

As for the home study, which is the review of the child’s living situation, the DCF investigator testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. She did go to the mother’s apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home study, she would have spoken with people who were allegedly responsible for watching the child and most certainly the live-in boyfriend, but she never did.

Despite DCF’s failure to contact the father, to staff the case with a CPT team, and to conduct a home study, the child was released from the hospital on December 15, 2000. It is undisputed that on January 11, 2001, the mother’s boyfriend physically abused the child and caused her permanent and serious injuries. She sustained traumatic brain and spinal injury. Her brain damage prevents her from swallowing properly, and she has weakness in all of her extremities as well as a significant degree of cognitive delay. Furthermore, it is improbable that she will ever be able to walk independently, she will most likely need a feeding tube, and in one doctor’s opinion, she will never have the ability to have a meaningful two-way conversation due to the impact on her speech. The child also takes numerous medications and requires speech, occupational, and physical therapy five days a week. Her injuries will require her dependency on caregivers for the rest of her life.

The couple who adopted the child near the end of 2001, sued for negligence, alleging, that DCF negligently failed to adequately and reasonably investigate the matter involving the child and that DCF’s negligence was the proximate cause of the injuries sustained by the child. The jury reached a verdict for the couple and found DCF 75% responsible for causing the child’s catastrophic injuries, MCH 20% responsible, and the mother 5% responsible. Final judgment was entered against DCF for $26,849,849.06.

On appeal, DCF argues that the trial court erred in denying its motion for directed verdict because the couple failed to show that the alleged negligence of DCF was the legal cause of the injuries sustained by the child, and that any finding of causation could be based only on a stacking of inferences. According to DCF, the inferences that would need to be stacked to reach a finding of causation are that had DCF completed its investigations, DCF would have uncovered the boyfriend’s abuse of the child, that the discovery of abuse would have led to the child’s removal from the mother’s custody, and thus, prevented the abuse perpetrated by the boyfriend on January 11, 2001.

Concerning DCF’s argument that the complainants failed to establish that the alleged negligence was the legal or proximate cause of the child’s injuries, the issue of proximate cause is generally a question of fact concerned with whether and to what extent the accused party’s conduct foreseeably and substantially caused the specific injury that actually occurred.

After reviewing the record in a light most favorable to the complainant couple, the case was properly submitted to the jury as there is competent substantial evidence in the record to support a finding that DCF’s failure to adequately and reasonably investigate the matters involving the child foreseeably and substantially caused the injuries sustained by her.

Under the facts of the case, the jury could conclude that DCF’s inaction unreasonably exposed the child to physical abuse leading to traumatic brain and spinal injury requiring dependency on caregivers for the rest of her life. Furthermore, The DCF expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse. The evidence could lead a jury to reasonably conclude that it was foreseeable to DCF that if the child was released to her mother without further investigation, she could sustain more abuse.

The trial court did not err in denying DCF’s motion for directed verdict. The complainant couple made a legitimate case on the issue of legal causation, which issue was properly submitted to the jury. As the Supreme Court declared DCF is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime. The primary duty of DCF is to immediately prevent any further harm to the child and that the relationship established between DCF and the abused child is a very special one.

Children are supposed to be protected from all forms of harm.

If your child suffered from someone else’s negligence, consult a NY Injury Lawyer. When you want to make sure that the person responsible is punished accordingly, consult NYC Personal Injury Attorneys. Stephen Bilkis and Associates can also provide you with the New York Medical Malpractice Lawyer.

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