In the Matter of Nyair J. (Anonymous). Administration for Children's Services, petitioner-respondent; Vernon J. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 1) In the Matter of Nasir O. (Anonymous). Administration for Children's Services, petitioner-appellant; Vernon J. (Anonymous), respondent-respondent, et al., respondent. (Proceeding No. 2) Docket Nos. N-20399-15, N-20400-15
Submitted - October 13, 2017
S. Calderon, Jamaica, NY, for respondent-appellant in
Proceeding No. 1 and respondent-respondent in Proceeding No.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela
Seider Dolgow and John Moore of counsel), for
petitioner-respondent in Proceeding No. 1 and
petitioner-appellant in Proceeding No. 2.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and
Diane Pazar of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the father and cross appeal by the petitioner from an
order of the Family Court, Kings County (Barbara Salinitro,
J.), dated July 14, 2016. The order, insofar as appealed
from, after a fact-finding hearing, found that the father
abused and neglected the child Nyair J. The order, insofar as
cross-appealed from, after the fact-finding hearing and upon
a finding that the petitioner failed to establish that the
father derivatively abused or neglected the child Nasir O.,
dismissed the amended petition relating to that child insofar
as asserted against the father.
that the order is modified, on the law and the facts, by
deleting the provision thereof dismissing so much of the
amended petition relating to the child Nasir O. as alleged
that the father derivatively neglected that child, and
substituting therefor a provision finding that the father
derivatively neglected the child Nasir O.; as so modified,
the order is affirmed insofar as appealed and cross-appealed
from, without costs or disbursements, and the matter is
remitted to the Family Court, Kings County, for a
dispositional hearing and a disposition thereafter on so much
of the amended petition relating to Nasir O. as alleged that
the father derivatively neglected that child.
J. (hereinafter the father) is the biological father of the
subject child Nyair J. and a person legally responsible for
the subject child Nasir O. The Administration for
Children's Services (hereinafter ACS) commenced these
proceedings pursuant to Family Court Act article 10,
alleging, inter alia, that the father abused and neglected
Nyair and derivatively abused and neglected Nasir. At a
fact-finding hearing, ACS presented evidence that on August
9, 2015, Nyair, who was then less than one month old, was
admitted to the hospital with seizures and a history of
vomiting. He was found to have sustained subdural hematomas
and bilateral retinal hemorrhages. An expert in pediatrics
testified that the cause of these injuries was
"non-accidental trauma" indicative of a forceful
motion or shaking of the child's head sustained sometime
between the evening of August 6 and August 8, 2015. In
addition to the above injuries, a bone survey revealed a
fracture to Nyair's lower left tibia. The expert
testified that the leg fracture also was caused by
"non-accidental trauma" and was sustained some time
between August 1 and 4, 2015. ACS also presented evidence
that at the time Nyair sustained the leg injury, he was under
the care of his mother and the father, but when he sustained
the head injuries, his mother was hospitalized and the father
was his primary caretaker.
father presented the testimony of a physician, who testified
that she had interviewed the father, and that he had admitted
"vigorously" shaking Nyair in order to get him to
stop crying. The physician further testified that this
vigorous shaking was the cause of Nyair's brain and eye
order dated July 14, 2016, the Family Court, inter alia, made
a finding ofabuse against the father with respect to the head
injuries sustained by Nyair and a finding of neglect against
the father with respect to the leg injury sustained by Nyair.
The court also found that ACS failed to establish that the
father derivatively abused or neglected Nasir and dismissed
the amended petition relating to that child insofar as
asserted against the father. The court reasoned that Nasir,
who was three years old at the time of the incident, was
"beyond the age where the [father] could cause him those
types of injuries by shaking him." The father appeals
from so much of the order as found that he abused and
neglected Nyair. ACS cross-appeals from so much of the order
as dismissed the amended petition relating to Nasir insofar
as asserted against the father.
proceeding pursuant to article 10 of the Family Court Act,
"proof of injuries sustained by a child or of the
condition of a child of such a nature as would ordinarily not
be sustained or exist except by reason of the acts or
omissions of the parent or other person responsible for the
care of such child shall be prima facie evidence of child
abuse or neglect, as the case may be, of the parent or other
person legally responsible" (Family Ct Act §
1046[a][ii]). "[O]nce a petitioner in a child abuse [or
neglect] case has established a prima facie case, the burden
of going forward shifts to respondents to rebut the evidence
of parental culpability" (Matter of Philip M.,
82 N.Y.2d 238, 244).
ACS established a prima facie case that the father abused
Nyair (see Family Ct Act § 1012[e]; Matter
of Cliffords. [Chevon G.], 148 A.D.3d 1159). Rather than
rebutting ACS's case, the evidence submitted by the
father confirmed that he had vigorously shaken Nyair, causing
his brain to bleed and his eyes to hemorrhage. Thus, the
Family Court properly found that the father abused Nyair J.
also established a prima facie case that the father neglected
Nyair (see Family Ct Act § 1012[f][i][B]).
Contrary to the father's contention, ACS was not
obligated to prove that Nyair was exclusively in the
father's care at the time that the leg injury occurred.
Once ACS established that Nyair sustained an injury which
would ordinarily not occur absent an act or omission of his
parents or caretakers, and that the father was a caretaker of
Nyair at the time that the injury occurred, the burden of
explanation shifted to the father (see Matter of Philip
M., 82 N.Y.2d at 244). The father, who declined to
testify at the hearing, failed to provide a reasonable
explanation for Nyair's injuries, or establish that the
injuries took place when the child was in the exclusive care
of someone other than himself (see Matter of Davion ...