Opinion
03-29-2017
In the Matter of CLIFFORD S. (Anonymous). Administration for Children's Services, petitioner-respondent; Chevon G. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 1) In Matter of Demarie G. (Anonymous). Administration for Children's Services, petitioner-respondent; Chevon G. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 2) In Matter of Aiden G. (Anonymous). Administration for Children's Services, petitioner-respondent; Chevon G. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 3).
Heath J. Goldstein, Jamaica, NY, for respondent-appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and MacKenzie Fillow of counsel), for petitioner-respondent. Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Diane Pazar ), attorney for the child.
Heath J. Goldstein, Jamaica, NY, for respondent-appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and MacKenzie Fillow of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Diane Pazar ), attorney for the child.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the father from an order of fact-finding of the Family Court, Queens County (Fran L. Lubow, J.), dated July 10, 2015. The order, insofar as appealed from, after a fact-finding hearing, found that the father abused the child Demarie G., and derivatively abused the children Clifford S. and Aiden G.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The appellant (hereinafter the father) is the biological father of the subject children Demarie G. and Aiden G., and a person legally responsible for the subject child Clifford S. On December 27, 2013, Demarie, who was then approximately six months old, was admitted to a hospital, inter alia, with brain injury and retinal hemorrhaging consistent with "shaken baby syndrome," or abusive head trauma. He died on December 31, 2013. The New York City Administration for Children's Services (hereinafter the ACS) filed petitions against the father, among others, alleging that he had abused Demarie and derivatively abused Clifford and Aiden.
Contrary to the father's contentions, the ACS made a prima facie case of abuse with respect to Demarie (see Family Ct. Act § 1046[a][ii] ; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; Matter of Jordan T.R. [David R.], 113 A.D.3d 861, 863, 979 N.Y.S.2d 614 ; Matter of Samuel L., 52 A.D.3d 394, 861 N.Y.S.2d 311 ; Matter of Infinite G., 11 A.D.3d 688, 689, 783 N.Y.S.2d 656 ). Once a prima facie case was established, a rebuttable presumption arose that the father was responsible for the abuse (see Matter of Philip M., 82 N.Y.2d at 246, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; Matter of Jordan T.R. [David R.], 113 A.D.3d at 863, 979 N.Y.S.2d 614 ). We agree with the Family Court that the father failed to rebut the presumption of culpability. Accordingly, the Family Court properly found that the ACS had established by a preponderance of the evidence that the father abused Demarie. Moreover, the Family Court properly determined that the father derivatively abused Clifford and Aiden (see Matter of Davion E.
[Latoya E.], 139 A.D.3d 944, 946, 31 N.Y.S.3d 202 ; Matter of Maria S. [Angelo S.], 135 A.D.3d 944, 945, 25 N.Y.S.3d 230 ; Matter of Diamond K., 31 A.D.3d 553, 554, 817 N.Y.S.2d 681 ).