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In re Jonathan

Supreme Court of New York, First Department

October 29, 2013

In re Jonathan Kevin M., A Dependent Child Under Eighteen Years of Age, etc., and Anthony K., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Larry S. Bachner, Jamaica, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Karen Griffin of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.

Tom, J.P., Andrias, Saxe, Freedman, Richter, JJ.

Order of disposition, Family Court, Bronx County (Kelly A. O'Neill Levy, J.), entered on or about September 25, 2012, which, upon a fact-finding determination that respondent abused the subject child, inter alia, directed respondent to comply with an order of protection enjoining him to stay away from the child until the child's eighteenth birthday and to submit to a mental health evaluation if he seeks to petition for any contact with the child, unanimously affirmed, without costs. Appeal from order of fact-finding (same court and Judge), entered on or about May 7, 2012, unanimously affirmed, without costs.

The record supports the Family Court's determination that, at the time of the abuse, respondent was a person legally responsible for the child's care, because he was married to the mother and was living with her and with the child who was then his stepson. Contrary to respondent's contention, the fact that he may have lived with the child for just eight days before the abuse was discovered does not preclude the finding that he was legally responsible for the child's well-being during the relevant period (see Matter of Yolanda D., 88 N.Y.2d 790 [1996]; Matter of Christopher W., 299 A.D.2d 268 [1st Dept 2002]).

Furthermore, petitioner agency demonstrated that respondent abused the child by a preponderance of the evidence, which included respondent's guilty plea to a felony assault charge arising from the subject abuse. A police officer testified that respondent made statements admitting that he and the mother had bitten the child on his leg and arms, and that they had struck him, and those statements were admissible (see Matter of Sasha B. [Erica B.], 73 A.D.3d 587 [1st Dept 2010], appeal dismissed 16 N.Y.3d 755 [2011]; Matter of Karen BB., 216 A.D.2d 754, 755-756 [3rd Dept 1995]). Moreover, the doctor who examined the then two-year-old child after the abuse was discovered testified that he presented with several contusions, bruises, lacerations, scratches, thirteen bite marks, internal injuries and several rib fractures, and that the bruises were probably no more than two weeks old and could not have been self-inflicted. The burden thus shifted to respondent, who submitted no evidence and thus failed to rebut the showing of abuse (see Matter of Philip M., 82 N.Y.2d 238, 244 [1993]; Matter of Vincent M., 193 A.D.2d 398, 402 [1993]). Although the mother admitted that she was responsible for some of the injuries, the burden remained with respondent to provide a satisfactory explanation as to how the child received the injuries that were not caused by the mother or to demonstrate that he had not inflicted them (see Matter of Matthew O. [Kenneth O.], 103 A.D.3d 67, 75-76 [1st Dept 2012]).

The court properly drew a negative inference against respondent from his failure to testify at the fact-finding hearing, even if the criminal case against him had still been pending (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 660 [1st Dept 2013]; Matter of Aria E. [Lisette B.], 82 A.D.3d 427, 428 [1st Dept 2011]; Matter of Nicole H., 12 A.D.3d 182, 183 [1st Dept 2004]).

As for the dispositional order, the court had the authority under FCA § 1056(4) to issue an order of protection directing respondent to stay away from the child until his eighteenth birthday, even thought respondent was not the child's biological father and, by that time, he and the mother had divorced. The order directing respondent to submit to a mental health evaluation should he petition for any contact with the child was proper because such requirement is in the child's best interests (see Matter of Salvatore M. [Nicole M.], 104 A.D.3d 769, 770 [2d Dept 2013], lv denied 21 N.Y.3d 858 [2013]; Matter of Enrique T. v Annamarie M., 15 A.D.3d 310 [1st Dept 2005]).


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