Opinion
6601–6602
05-17-2018
IN RE MELODY MARIE A. (Anonymous), A Child Under the Age of Eighteen Years, etc., Dana B., Respondent–Appellant, v. Administration for Children's Services, Petitioner–Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent. Larry S. Bachner, New York, attorney for the child.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Larry S. Bachner, New York, attorney for the child.
Acosta, P.J., Tom, Mazzarelli, Kern, Singh, JJ.
Order of disposition, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about May 24, 2016, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about March 14, 2016, finding, after a hearing, that respondent mother neglected the subject child, unanimously affirmed, without costs. Appeal from the fact-finding order unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
Petitioner made a prima facie showing of neglect by submitting evidence demonstrating that the injuries sustained by the child would not ordinarily have been sustained except by reason of the acts or omissions of the mother or the child's uncle, who were both responsible for the child's care (see Family Ct Act § 1046[b][ii] ; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ; Matter of Nyheem E. [Jamila G.], 134 A.D.3d 517, 518, 23 N.Y.S.3d 9 [1st Dept. 2015] ). Petitioner presented the testimony of an expert in pediatric abuse, who testified that the child's injuries—including hematomas on her head and under her eye, bleeding insidethe ear, and bleeding under the scalp from hair pulling—would ordinarily not have been sustained except by reason of a caretaker's acts or omissions ( Family Court Act § 1046[a][ii] ). Since both the mother and uncle were caretakers, petitioner was not required to establish whether the mother or the uncle inflicted the injuries, or whether they did so together (see Nyheem E. at 518, 23 N.Y.S.3d 9 ; Matter of Radames S. [Maria I.], 112 A.D.3d 433, 434, 976 N.Y.S.2d 458 [1st Dept. 2013] ).
The burden having shifted to the mother, she failed to rebut petitioner's showing, and her denial of fault was insufficient to rebut the agency's prima facie case ( Nyheem E. at 518, 23 N.Y.S.3d 9 ). Family Court's determination that the mother's account, which was replete with inconsistencies, was not credible is entitled to great deference (see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept. 2010], lv denied 16 N.Y.3d 705, 919 N.Y.S.2d 511, 944 N.E.2d 1151 [2011] ).
The agency's evidence also showed that the mother medically neglected the child by failing to obtain prompt medical attention for her, even though she knew that the child was bleeding and badly bruised (see Family Court Act 1012[f][i][A] ; Nyheem E. at 518, 23 N.Y.S.3d 9 ).