Opinion
2017–12531 Docket Nos. N–17643–16, N–17644–16, N–17646–16, N–17647–16
02-06-2019
In the MATTER OF SHEYLA G.-R. (Anonymous). Suffolk County Department of Social Services, Petitioner-Respondent; v. Jaime G. (Anonymous), Appellant, et al., Respondent. (Proceeding No. 1) In the Matter of Jaime G.-R. (Anonymous). Suffolk County Department of Social Services, Petitioner-Respondent; v. Jaime G. (Anonymous), Appellant, et al., Respondent. (Proceeding No. 2)
Glenn Gucciardo, Northport, NY, for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Jennifer L. Basile of counsel), for petitioner-respondent. Laurette Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the children.
Glenn Gucciardo, Northport, NY, for appellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Jennifer L. Basile of counsel), for petitioner-respondent.
Laurette Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the children.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
On October 21, 2016, the mother noticed a bump on the head of the then-six-week-old Sheyla G.-R. (hereinafter the infant). The mother contacted the infant's pediatrician, and was directed to take the infant to Glen Cove Hospital. The infant was transferred to the Cohen Children's Medical Center (hereinafter the Medical Center) on October 22, 2016. At the Medical Center, the infant was examined by a child abuse expert, Jaime Hoffman–Rosenfeld, who determined that the infant sustained a diastatic skull fracture and an associated hematoma. The infant also had healing rib fractures that appeared to be 7 to 10 days old, that allegedly did not occur at the same time as the skull fracture, and bruises on her wrist and on both legs. Suffolk County Detectives Frances Murray and Joseph Mucha (hereinafter together the detectives) interviewed the father, who told them that the infant's injuries were caused by a fall from an infant swing the previous week, on October 16, 2016.
On October 24, 2016, the Suffolk County Department of Social Services (hereinafter the DSS) filed a petition against the mother and the father (hereinafter together the parents), alleging that they abused the infant, and derivatively neglected the child, Jaime G.-R. (hereinafter the child), who was approximately two years old. A fact-finding hearing was held over multiple days in July and August 2017, at which Hoffman–Rosenfeld and the detectives testified on behalf of the presentment agency. Medical records, including radiological images and photographs, were introduced into evidence at the hearing. The father and mother each testified on their own behalf, and the father's cousin also testified in favor of the parents. The Family Court determined that the DSS had proven by a preponderance of the evidence that the parents abused the infant and derivatively neglected the child. Following a dispositional hearing, the infant and the child were placed in foster care, and the father appeals.
Family Court Act § 1046(a)(ii)"provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred" ( Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 ). A finding that a child is abused must be based on a preponderance of the evidence (see Family Ct Act § 1046[b][i] ; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 ; Matter of Adelia V. [Braun], 91 A.D.3d 659, 660, 937 N.Y.S.2d 78 ). "Although the burden of proving child abuse or neglect always remains with the petitioner, once a prima facie case has been established, a presumption of parental responsibility arises, and the burden of going forward to rebut the presumption shifts to the respondents" ( Matter of Peter R., 8 A.D.3d 576, 577, 779 N.Y.S.2d 137, citing Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; see Matter of Christopher Anthony M., 46 A.D.3d 896, 848 N.Y.S.2d 711 ).
Here, the DSS established, prima facie, that the father abused the infant (see Family Ct Act § 1046[a][ii] ; Matter of Philip M., 82 N.Y.2d at 243–244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; Matter of Semenah R. [Keno R.Shanika R.], 135 A.D.3d 503, 24 N.Y.S.3d 39 ; Matter of Robert A. [Kelly K.], 109 A.D.3d 611, 971 N.Y.S.2d 12 ; Matter of Madeline A., 55 A.D.3d 430, 866 N.Y.S.2d 150 ; Matter of Sanah J., 23 A.D.3d 385, 806 N.Y.S.2d 78 ; Matter of Infinite G., 11 A.D.3d 688, 783 N.Y.S.2d 656 ). The father failed to rebut the presumption of parental responsibility by providing a reasonable explanation for the infant's injuries (see Matter of Philip M., 82 N.Y.2d at 245, 604 N.Y.S.2d 40, 624 N.E.2d 168 ). Furthermore, the finding of derivative neglect as to the child was warranted based on the father's abuse of the infant, which demonstrated parental judgment so impaired as to place the child at substantial risk of harm (see Family Ct Act § 1046[a][i] ; Matter of Semenah R. [Ken o R. Shanika R.], 135 A.D.3d at 504, 24 N.Y.S.3d 39 ; Matter of Dayanara V. [Carlos V.], 101 A.D.3d 411, 955 N.Y.S.2d 566 ; Matter of Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798 ).
Accordingly, we agree with the Family Court's findings that the father abused the infant and derivatively neglected the child.
BALKIN, J.P., CHAMBERS, COHEN and BRATHWAITE NELSON, JJ., concur.