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Nakym S. v. Kimberly N.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 31, 2009

IN RE NAKYM S., A CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
v.
KIMBERLY N., RESPONDENT-APPELLANT,
ADMINISTRATION FOR CHILDREN'S SERVICES OF THE CITY OF NEW YORK, PETITIONER-RESPONDENT,
KEITH T., ET AL., RESPONDENTS,

Order of disposition, Family Court, Bronx County (Carol A. Stokinger, J.), entered on or about January 19, 2006, which, to the extent appealed from, after a fact-finding determination that respondent mother neglected the subject child, placed the child with the Commissioner of Social Services until completion of the next permanency hearing, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

The finding of neglect was established by a preponderance of the evidence (Family Court Act § 1046[b][I]; see also Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). Petitioner satisfied its initial prima facie showing of neglect by expert medical testimony establishing that the child sustained immersion burns to the buttocks, which were "of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent" (Family Court Act § 1046[a][ii]). Respondent failed to rebut the presumption of culpability with a credible and reasonable explanation of how the child suffered the burns and why she did not seek treatment earlier (see Matter of Philip M., 82 NY2d 238, 244-245 [1993]). Furthermore, there exists no basis to disturb the court's credibility determinations, particularly its decision to credit the opinion of petitioner's expert over that of respondent's expert (see Matter of Ashanti A., 56 AD3d 373 [2008]; Matter of Benjamin L., 9 AD3d 153, 155 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090331

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