Opinion
2012-12-12
In the Matter of KEIJONTE W. (Anonymous). Administration for Children's Services, petitioner-respondent; Tamarra W. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Keiajae W. (Anonymous). Administration for Children's Services, petitioner-respondent; Tamarra W. (Anonymous), appellant, et al., respondent. (Proceeding No. 2) In the Matter of Keijon W. (Anonymous). Administration for Children's Services, petitioner-respondent; Tamarra W. (Anonymous), appellant, et al., respondent. (Proceeding No. 3) In the Matter of Nkaiyah U. (Anonymous). Administration for Children's Services, petitioner-respondent; Tamarra W. (Anonymous), appellant, et al., respondent. (Proceeding No. 4) In the Matter of Jahmyra U. (Anonymous). Administration for Children's Services, petitioner-respondent; Tamarra W. (Anonymous), appellant, et al., respondent. (Proceeding No. 5)
Karen Elizabeth Morth, New York, N.Y., for appellant. *905Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Suzanne K. Colt of counsel), for petitioner-respondent.
Karen Elizabeth Morth, New York, N.Y., for appellant. *905Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Suzanne K. Colt of counsel), for petitioner-respondent.
Francine Shraga, Brooklyn, N.Y., attorney for the children.
In related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from two orders of disposition (one as to the children Keijonte W., Keiajae W., and Keijon W., and one as to the children Nkaiyah U. and Jahmyra U.) of the Family Court, Kings County (Lim, J.), both dated June 7, 2011, which, upon a fact-finding order of the same court dated January 4, 2011, made after a fact-finding hearing, finding, inter alia, that she abused the child Keiajae W., derivatively abused the other four subject children, and neglected all of the subject children, released the children Nkaiyah U. and Jahmyra U. to the custody of their nonrespondent father under the supervision of a child protective agency, social services official, or duly authorized agency, and placed the children Keijonte W., Keiajae W., and Keijon W. in the custody of the Commissioner of Social Services of Kings County. The appeal from the orders of disposition brings up for review the fact-finding order dated January 4, 2011.
ORDERED that the orders of disposition are affirmed, without costs or disbursements.
Article 10 of the Family Court Act defines an “abused child” as, inter alia, “a child under the age of 18 whose parent or other person legally responsible for the child's care ‘commits, or allows to be committed, a sex offense against such child’ ” (Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168, quoting Family Ct. Act § 1012[e][iii] ). The Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur,” and “once a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability” (Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168;see Matter of Fantaysia L., 36 A.D.3d 813, 814, 828 N.Y.S.2d 497). Here, the petitioner sustained its burden of proving by a preponderance of the evidence that the child Keiajae W. was an abused child, and the mother failed to rebut the petitioner's prima facie case of abuse with respect to that child ( see Family Ct. Act § 1046[b][i]; Matter of Nicole V., 71 N.Y.2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914;Matter of Aliyah G. [ Arlenie G.], 95 A.D.3d 885, 942 N.Y.S.2d 903;Matter of Lisbeth H. [ Noemy H.], 83 A.D.3d 836, 920 N.Y.S.2d 680). The proof of abuse of Keiajae W. was sufficient to establish that the mother derivatively abused the four other subject children, who were either whole or half siblings of Keiajae W. ( see Family Ct. Act § 1046[a] [i]; Matter of Aliyah G. [ Arlenie G.], 95 A.D.3d at 887, 942 N.Y.S.2d 903;Matter of Tristan R., 63 A.D.3d 1075, 1078, 883 N.Y.S.2d 229).
Further, a preponderance of the evidence supports a finding that the mother neglected all the subject children ( see Family Ct. Act § 1012[f][i][B]; Matter of Tristan R., 63 A.D.3d at 1078, 883 N.Y.S.2d 229). The hearsay admitted into evidence at the fact-finding hearing, which consisted, inter alia, of caseworker progress notes and a child abuse evaluation redacted to contain only the statements of the subject children, was allowable pursuant to specific statutory provisions ( see Family Ct. Act § 1046[a][iv], [v], [vi]; Matter of Sanaia L. [ Corey W.], 75 A.D.3d 554, 903 N.Y.S.2d 916). That evidence, together with a negative inference drawn from the mother's failure to testify, was sufficient to support the Family Court's findings ( see Matter of Zaire D. [ Benellie R.], 90 A.D.3d 923, 935 N.Y.S.2d 581;*906Matter of Amanda Ann B., 38 A.D.3d 537, 832 N.Y.S.2d 59).
The Family Court providently exercised its discretion in denying the mother's motion, made pursuant to Family Ct. Act § 1061, to vacate the fact-finding order. Under the circumstances of this case, the court properly concluded that the mother failed to demonstrate “good cause” to warrant such relief (Family Ct. Act § 1061; see Matter of Commissioner of Social Servs. v. Amine B., 223 A.D.2d 703, 637 N.Y.S.2d 182).
The mother's remaining contentions are without merit.