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In re Zoey D. (Anonymous)

Supreme Court of New York, Second Department

March 8, 2017

In the Matter of Zoey D. (Anonymous). Administration for Children's Services, petitioner-respondent; Simona D. (Anonymous), appellant, et al., respondent. Docket No. N-7105-14

          Brooklyn Defender Services, Brooklyn, NY (Beile Lindner and Skadden, Arps, Slate, Meagher & Flom LLP [Boris Bershteyn, Rachel Blitzer, and Angela Colt], of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Melanie T. West of counsel), for petitioner-respondent.

          Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Marcia Egger of counsel), attorney for the child.

          RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.

          DECISION & ORDER

         Appeals by the mother from (1) an order of fact-finding of the Family Court, Kings County (Michael Ambrosio, J.), dated April 21, 2015, and (2) an order of disposition of that court (Barbara Salinitro, J.), dated June 8, 2015. The order of fact-finding, after a fact-finding hearing, inter alia, found that the mother abused the subject child. The order of disposition, upon the fact-finding order and after a dispositional hearing, placed the subject child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing.

         ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further, ORDERED that the appeal from so much of the order of disposition as placed the subject child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing is dismissed as academic, without costs or disbursements, as the period of placement has expired (see Matter of Dior Z.J. [Dior J.], 139 A.D.3d 1065, 1066; Matter of Amina I.J. [Chantilly J.], 134 A.D.3d 938, 939; Matter of Grayson J. [Sharon H.], 119 A.D.3d 575, 575); and it is further, ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

         When the subject child was three months old, the mother took her to a hospital where she was diagnosed with multiple, unexplained skeletal fractures. The petitioner thereafter commenced this proceeding alleging that the mother and the child's childcare provider had abused the child. After fact-finding and dispositional hearings, the Family Court determined that the mother and the childcare provider abused the child and placed the child in the custody of the Commissioner of Social Services until the completion of the next permanency hearing.

         The Family Court Act defines an abused child, inter alia, as a child whose parent, or other person legally responsible for his or her care, "(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ or (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause [such injury]" (Family Ct Act § 1012[e]). 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 that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred (see Matter of Philip M., 82 N.Y.2d 238, 243; Matter of Davion E. [Latoya E.], 139 A.D.3d 944, 946; Matter of Maria S. [Angelo S.], 135 A.D.3d 944, 945). "A parent who stands by while others inflict harm may be found responsible for that harm" (Matter of Amirah L. [Candice J.], 118 A.D.3d 792, 793).

         Section 1046(a)(ii) "authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur" (Matter of Philip M., 82 N.Y.2d at 244; see Matter of Miguel G. [Navil G.], 134 A.D.3d 711; Matter of Stephen Daniel A. [Sandra M.], 122 A.D.3d 834, 835). The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred (see Matter of Philip M., 82 N.Y.2d at 245; Matter of Maria S. [Angelo S.], 135 A.D.3d at 945; Matter of Nyheem E. [Jamila G.], 134 A.D.3d 517, 518; Matter of Matthew O. [Kenneth O.], 103 A.D.3d 67, 74-75). In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together (see Matter of Nyheem E. [Jamila G.], 134 A.D.3d at 518; Matter of Matthew O. [Kenneth O.], 103 A.D.3d at 74-75).

         Here, the petitioner established a prima facie case of child abuse (see Matter of Davion E. [Latoya E.], 139 A.D.3d at 946; Matter of David R., 39 A.D.3d 1187, 1188). It was uncontested that the injuries suffered by the child were the result of abuse and that only the mother and the childcare provider had access to her in the relevant period. The mother failed to rebut the presumption of parental culpability (see Matter of Philip M., 82 N.Y.2d at 244-245; Matter of Matthew O. [Kenneth O.], 103 A.D.3d at 75-76).

         Accordingly, the Family Court properly determined that the mother ...


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