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In re Jordan T. R. (Anonymous)

Supreme Court of New York, Second Department

January 29, 2014

In the Matter of Jordan T. R. (Anonymous). Administration for Children's Services, respondent; and David R. (Anonymous), et al., appellants. (Proceeding No. 1) In the Matter of Mariah T. R. (Anonymous). Administration for Children's Services, respondent; and David R. (Anonymous), et al., appellants. (Proceeding No. 2) In the Matter of Imani C. T. S. (Anonymous). Administration for Children's Services, respondent; and David R. (Anonymous), et al., appellants. (Proceeding No. 3) In the Matter of Angela T. R. (Anonymous). Administration for Children's Services, respondent; and David R. (Anonymous), et al., appellants. (Proceeding No. 4) Docket Nos. N-10235/10, N-10236/10, N-7373/11, N-7374/11

Rhonda R. Weir, Brooklyn, N.Y., for appellant David R. Cheryl Gammone, Staten Island, N.Y., for appellant Antoinette T.

Jeffrey D. Friedlander, Acting Corporation Counsel, New York, N.Y. (Francis F. Caputo and Avshalom Yotam of counsel), for respondent.

Francine Shraga, Brooklyn, N.Y., attorney for the children Jordan T. R. and Mariah T. R. Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child Imani C. T. S.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In related child abuse proceedings pursuant to Family Court Act article 10, David R. appeals, as limited by his brief, (1) from so much of an order of fact-finding of the Family Court, Kings County (Ambrosio, J.), dated July 6, 2011, as, after a hearing, found that he abused the child Angela T. R. and derivatively abused the children Imani C. T. S., Jordan T. R., and Mariah T. R., and (2) from stated portions of an order of disposition of the same court (Gruebel, J.), dated June 20, 2012, which, among other things, released the children Jordan T. R. and Mariah T. R. to the custody of the mother, and the mother separately appeals (1), as limited by her brief, from so much of the same order of fact-finding as found that she had abused the child Angela T. R., and derivatively abused the children Imani C. T. S., Jordan T. R., and Mariah T. R., (2), as limited by her brief, from stated portions of the same order of disposition which, among other things, released the children Jordan T. R. and Mariah T. R. to her custody, with supervision by the New York City Administration for Children's Services for a period of up to 12 months, and (3) a separate order of disposition of the same court, also dated June 20, 2012, which, inter alia, upon the fact-finding order finding that she derivatively abused the child Imani C. T. S., released that child to the custody of the biological father.

ORDERED that the mother's appeal from so much of the order of fact-finding as found that she derivatively abused the children Imani C. T. S., Jordan T. R., and Mariah T. R. is dismissed, without costs or disbursements, as those portions of the order of fact-finding were superseded by the respective orders of disposition; and it is further,

ORDERED that the appeal by David R. from so much of the order of fact-finding as found that he derivatively abused the children Jordan T. R. and Mariah T. R. is dismissed, without costs or disbursements, as those portions of the order of fact-finding were superseded by the order of disposition pertaining to those children; and it is further,

ORDERED that the mother's appeal from stated portions of the order of disposition pertaining to the children Jordan T. R. and Mariah T. R. is dismissed as academic, without costs or disbursements, except insofar as it brings up for review so much of the order of fact-finding as found that she derivatively abused those children, as the portions of the order from which she appeals have expired by their own terms; and it is further,

ORDERED that the order of fact-finding is affirmed insofar as reviewed on the appeal by David R., without costs or disbursements; and it is further,

ORDERED that the order of fact-finding is reversed insofar as reviewed on the appeal by the mother, on the law and the facts, without costs or disbursements, the petition in Proceeding No. 4, which pertains to the child Angela T. R., is denied insofar as asserted against the mother, and that proceeding is dismissed insofar as asserted against the mother; and it is further,

ORDERED that the order of disposition pertaining to the children Jordan T. R. and Mariah T. R. is affirmed insofar as reviewed on the appeal by David R., without costs or disbursements; and it is further,

ORDERED that the order of disposition pertaining to the children Jordan T. R. and Mariah T. R. is reversed insofar as reviewed on the appeal by the mother, on the law and the facts, without costs or disbursements, so much of the order of fact-finding as found that the mother derivatively abused the children Jordan T. R. and Mariah T. R. is vacated, the petitions in Proceeding Nos. 1 and 2, which pertain to the children Jordan T. R. and Mariah T. R., respectively, are denied insofar as asserted against the mother, and those proceedings are dismissed insofar as asserted against the mother; and it is further,

ORDERED that the order of disposition pertaining to the child Imani C. T. S. is reversed, on the law and the facts, without costs or disbursements, and so much of the order of fact-finding as found that the mother derivatively abused the child Imani C. T. S. is vacated, the petition in Proceeding No. 3, which pertains to the child Imani C. T. S., is denied insofar as asserted against the mother, and that proceeding is dismissed insofar as asserted against the mother.

On March 19, 2010, the child Angela T. R. was admitted to a hospital and found to have suffered injuries consistent with "shaken baby syndrome." At the time of her admission, she presented signs of brain death and was placed on life-support equipment. The New York City Administration for Children's Services (hereinafter the ACS) filed petitions against Antoinette T. (hereinafter the mother) and David R., alleging that they had abused the subject children Angela T. R. and Imani C. T. S. The petitions alleged that the mother was the biological mother of both children and that David R. was a person legally responsible for Imani and the biological father of Angela. Angela was declared brain dead on April 6, 2010, and subsequently was removed from life-support systems. During the pendency of these proceedings, the children Jordan T. R. and Mariah T. R. were born to the mother and David R. (hereinafter together the appellants), and the ACS filed petitions alleging that those children were derivatively abused.

Contrary to the appellants' contentions, the ACS made a prima facie case of abuse of Angela with evidence that the four-month-old child was brought to the hospital with injuries, including a bulging fontanelle, multi-layered retinal hemorrhages, subdural hemorrhages, and a subarachnoid hemorrhage, that were of such a nature as not to be accidental (see Family Ct Act § 1046[a][ii]; Matter of Philip M., 82 N.Y.2d 238, 243; Matter of Samuel L., 52 A.D.3d 394; Matter of Jezekiah R.-A. [ Edwin R.E. ], 78 A.D.3d 1550; Matter of Aniyah F., 13 A.D.3d 529, 530; Matter of Infinite G., 11 A.D.3d 688, 689; Matter of Marquise W., 269 A.D.2d 400; Matter of Brandon C., 247 A.D.2d 380, 381). Once a prima facie case was established, a rebuttable presumption of parental culpability arose (see Matter of Philip M., 82 N.Y.2d at 246; Matter of Jaiden T.G. [ Shavonna D.-F. ], 89 A.D.3d 1021, 1022; Matter of Infinite G., 11 A.D.3d at 689).

We agree with the Family Court that David R. failed to rebut the presumption of culpability. Although the appellants' expert testified that Angela's injuries were consistent with the accidental trauma described by David R., he also acknowledged that events could not have occurred as described by David R., given Angela's condition upon arriving at the hospital. He further conceded that his diagnosis would be "very rare" in a child of Angela's age, and he had never seen such a case or even heard of a case in which the particular diagnosis was considered a possibility for explaining similar injuries. Accordingly, the Family Court properly found that the ACS had established by a preponderance of the evidence that David R. had abused Angela.

However, the mother rebutted the presumption of parental abuse with evidence, which was credited by the Family Court, that Angela was solely in the care of David R. at the time when the injury would have occurred, and that the mother immediately sought medical assistance when she returned to David R's apartment and found Angela limp and pale (see Matter of Philip M., 82 N.Y.2d at 244; Matter of Jaiden T. G. [ Shavonna D.-F. ], 89 A.D.3d at 1022). Accordingly, the Family Court should have denied the petitions and dismissed the proceedings insofar as asserted against the mother.

The contention of David R. that he was not a person legally responsible for Imani's care is improperly raised for the first time on appeal, and therefore is not properly before us (cf. Matter of Keydra R. [ Robert R. ], 105 A.D.3d 588, 589; Matter of Sharnaza Q. [ Clarence W. ], 68 A.D.3d 436; Matter of Johnnie S., 272 A.D.2d 472, 473; Matter of Mary Alice V., 222 A.D.2d 594, 595).

DILLON, J.P., LEVENTHAL, HALL and AUSTIN, JJ., concur.


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