## Facts

- Terry, a young child, lived with her mother and father and her younger brother, Fred.
- The mother and father were immigrants who did not speak English, and the mother generally did not leave the home without the father.
- When Terry was two years old, she was hospitalized for injuries the parents said occurred when Fred pushed her off a table.
- When Terry was three years old, the parents reported that a tricycle fell and struck her in the face.
- Three days after the tricycle incident, the father left for work at about 6:00 a.m.
- The mother claimed Terry woke up very ill, but the mother did not seek help during the day.
- When the father called home around 2:00 p.m., he called an ambulance, and Terry was taken to the hospital in critical condition.
- At the hearing, undisputed medical evidence established that:
  - Terry was comatose and blind because of brain damage.
  - The brain damage was caused by trauma deliberately inflicted by external force.
  - The trauma could not have been caused by a fall.
  - Terry’s body was covered with human bite marks.
- The parents testified that they did not know how Terry sustained the brain injury; the mother suggested Fred caused the bite marks.

## Issues

1. Whether the petitioner proved, by a preponderance of the evidence, that Terry was an abused child based on medical proof of nonaccidental injuries and the circumstances of her care.
2. Whether the court could infer that one or both parents inflicted or allowed the injuries when the child was in their care and no credible innocent explanation was offered, including consideration of the parents’ failure to provide an adequate explanation consistent with the privilege against self-incrimination.

## Decision

- The court sustained the abuse petition and adjudicated Terry an abused child.
- The court credited the undisputed medical testimony that Terry’s brain injury resulted from deliberately inflicted external trauma and was not consistent with an accidental fall.
- The court treated the extensive human bite marks, together with the head trauma, as strong proof of nonaccidental injury.
- Given Terry’s age and the home setting, the court relied on circumstantial proof and drew an inference that the injuries were inflicted by, or occurred with the acquiescence of, a parent responsible for Terry’s care.
- The court did not require the parents to testify in a way that would waive constitutional protections, but it considered the absence of a plausible innocent explanation when weighing whether the petitioner’s showing had been rebutted.
- The proceeding moved forward consistent with an abuse adjudication.

## Legal Principles

- In a child-abuse proceeding, the petitioner’s burden is proof by a preponderance of the evidence, and that burden may be satisfied through circumstantial evidence, including medical testimony.
- When a very young child suffers injuries that ordinarily do not occur without intentional conduct, and the injuries occur while the child is in the exclusive care or control of the parents or caregivers, the factfinder may infer that a responsible caregiver inflicted the harm or allowed it to occur.
- The petitioner is not always required to identify which parent committed the act when the proof shows the child was abused while in the joint custody of both parents, each of whom had a duty to protect the child.
- Although parents cannot be forced to testify in a way that violates the privilege against self-incrimination, in a civil child-protection case the court may weigh a parent’s failure to offer a credible innocent explanation for severe, suspicious injuries occurring within the family’s control.

## Conclusion

In re S. upheld an abuse finding where undisputed medical evidence showed that a three-year-old’s catastrophic brain injury was deliberately inflicted and her body bore human bite marks; because the child was in her parents’ care and no credible innocent account explained the injuries, the Family Court permitted an inference that one or both parents caused or allowed the abuse and sustained the petition.


In re S., 66 Misc. 2d 683, 322 N.Y.S.2d 170 (1971)