Opinion
283 CAF 16–01495
04-27-2018
In the MATTER OF TYREE B., Jr., and Amaree B. Erie County Department of Social Services, Petitioner–Respondent; v. Christina H., Respondent, and Tyree B., Respondent–Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT. MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILDREN.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
JAMES E. BROWN, BUFFALO, FOR PETITIONER–RESPONDENT.
MELISSA A. CAVAGNARO, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Respondent father appeals from an order adjudging that respondents abused their three-month-old child and derivatively abused their two-year-old child. We reject the father's contention that the evidence is legally insufficient to support Family Court's findings with respect to the younger child. Petitioner presented the testimony of a physician establishing that the younger child had a fractured humerus and rib, and the explanation offered by respondents for those injuries was inconsistent with the nature and severity of the injuries. Petitioner therefore established a prima facie case of child abuse with respect to the younger child (see Family Ct Act § 1046 [a][ii] ), and the father failed to rebut the presumption of parental responsibility (see Matter of Philip M., 82 N.Y.2d 238, 246, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ). Contrary to the father's contention, petitioner "was not required to establish whether [respondent] mother or the father actually inflicted the injuries, or whether they did so together ... [, and] the [father's] denial of fault and [the mother's] attempt to blame [the older child] for the injuries [were] insufficient to rebut [petitioner's] prima facie evidence of ... abuse" ( Matterof Nyheem E. [Jamila G.], 134 A.D.3d 517, 518, 23 N.Y.S.3d 9 [1st Dept. 2015] ; see Matter of Jacinta J., 140 A.D.2d 990, 991–992, 529 N.Y.S.2d 661 [4th Dept. 1988] ).
The father also contends that the court erred in admitting the entire case file in evidence because the case file contained some hearsay. We reject that contention. Here, unlike in Matter of Leon RR, 48 N.Y.2d 117, 120, 421 N.Y.S.2d 863, 397 N.E.2d 374 (1979), the court received the case file conditionally, subject to the father's hearsay objections (see Matter of Merle C.C., 222 A.D.2d 1061, 1062, 636 N.Y.S.2d 519 [4th Dept. 1995], lv denied 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667 N.E.2d 339 [1996] ). We note in any event that any error in admitting the case file in evidence is harmless because "the result reached herein would have been the same even had such record[s], or portions thereof, been excluded ... Moreover, [t]here is no indication that the court considered, credited, or relied upon inadmissible hearsay in reaching its determination" ( Matter of Jaydalee P. [Codilee R.], 156 A.D.3d 1477, 1478, 67 N.Y.S.3d 371 [4th Dept. 2017] [internal quotation marks omitted]; see Merle C.C., 222 A.D.2d at 1062, 636 N.Y.S.2d 519 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.