Opinion
844 CAF 20-00654
11-17-2023
In the MATTER OF JOHLYANNE F. Erie County Department of Social Services, Petitioner-Respondent; v. Evangelista A., Respondent-Appellant, et al., Respondents.
JOSEPH T. JARZEMBEK, BUFFALO, FOR RESPONDENT-APPELLANT. BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT. LYLE T. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.
JOSEPH T. JARZEMBEK, BUFFALO, FOR RESPONDENT-APPELLANT.
BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT.
LYLE T. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order entered after a fact-finding hearing that, inter alia, adjudged that the child who is the subject of this proceeding was abused by the mother. As a preliminary matter, we exercise our discretion to treat the mother's notice of appeal from the order following the fact-finding hearing as a valid notice of appeal from the subsequently entered order of fact-finding and disposition (see CPLR 5520 [c] ; Matter of Ariana F.F. [Robert E.F.] , 202 A.D.3d 1440, 1441, 161 N.Y.S.3d 661 [4th Dept. 2022] ; Matter of Hunter K. [Robin K.] , 142 A.D.3d 1307, 1308, 38 N.Y.S.3d 322 [4th Dept. 2016] ).
Contrary to the mother's contention, petitioner met its burden of establishing by a preponderance of the evidence that the mother abused the child (see generally Matter of Philip M. , 82 N.Y.2d 238, 243-244, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ; Matter of Mya N. [Reginald N.] , 185 A.D.3d 1522, 1523-1524, 127 N.Y.S.3d 680 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6789072 [2020] ). Petitioner presented the testimony of medical providers who examined the 20-month-old child on July 7, 2019 and found that the child had five circular-shaped burns to her legs that appeared to have been sustained at the same time, likely recently, and were in the early stage of healing. One provider testified that in her experience a child would cry out in pain when receiving those burns. The providers also noted that the child had multiple bruises, including bruising to her ear, which was highly suspicious for nonaccidental trauma. Petitioner presented testimony that the child had been with the mother the morning of July 5 until approximately 3:00 p.m., and thereafter the child had been in the presence of multiple relatives at a public park until the mother picked the child up around midnight. Several of the child's relatives noticed the burn marks on the child around 6:00 p.m., and the mother herself noticed the marks when she picked the child up that night. The other respondents testified at the hearing that, while at the park, the child never cried out in pain, and Family Court made the inference that the child had sustained the burn injuries earlier that day, when she was in the mother's care. The court also relied on the testimony of several members of the mother's family regarding the mother's explosive temper and numerous instances where she struck or screamed at the child. We accord great weight and deference to the court's determinations, "including its drawing of inferences and assessment of credibility," and we will not disturb those determinations where, as here, they are supported by the record ( Matter of Shaylee R. , 13 A.D.3d 1106, 1106, 787 N.Y.S.2d 553 [4th Dept. 2004] ).
We have considered the mother's remaining contention and conclude that it does not warrant reversal or modification of the order.