| Matter of Alexander F. (Raddad I.) |
| 2011 NY Slip Op 02496 [82 AD3d 1514] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Alexander F. and Others, Children Alleged to beAbused and/or Neglected. Columbia County Department of Social Services, Respondent; RaddadI., Appellant, et al., Respondents. |
—[*1] Megan Mercy, Columbia County Department of Social Services, Hudson (James Carlucci,Hudson, of counsel), for respondent. Raghuvijai Guntur, Elizaville, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered November 12, 2009, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate the subject children to be abused and/orneglected.
Respondents Raddad I. (hereinafter respondent) and Stephanie F. (hereinafter the mother) arethe married parents of two children, Amira I. and Destiny G. (born in 2009 and 2006,respectively). The mother has three other children from other relationships—Breanna F.,[*2]Alexander F. and Caitlin H. (born in 2000, 2002 and 2007,respectively).[FN*]The mother has been incarcerated since mid-February 2009. Respondent and the children hadbeen living with the children's maternal grandparents, respondents Pam H. and Pete H., at theirresidence in Columbia County, until a fire on February 15, 2009 forced them to movetemporarily to various motels.
By mid-March 2009, respondent, Amira, Destiny, Breanna and Alexander were living in oneroom of a hotel in the City of Albany, and Caitlin, the maternal grandparents and their daughterKimberly H. were living in an adjoining room. On March 23, 2009, respondent took Amira to thehospital after she refused to eat for several hours. Amira was treated and found to have bilateralsubdural hematomas, bilateral infarctions of the brain, substantial loss of brain tissue and severalrib fractures. The day following Amira's admission to the hospital, petitioner sought and wasgranted an order of temporary removal of the children from the home. Petitioner thereaftercommenced this proceeding alleging the abuse of Amira and the derivative neglect of hersiblings. After a fact-finding hearing, Family Court granted the petition as to all respondentsexcept the mother. Respondent now appeals arguing that petitioner failed to establish a primafacie case of abuse and, accordingly, Family Court's findings of derivative abuse were alsoerroneous. Alternatively, respondent argues that he successfully rebutted the allegations in thepetition.
" 'In a Family Ct Act article 10 proceeding, petitioner bears the burden of proving abuseand/or neglect by a preponderance of the evidence' " (Matter of Miranda HH. [Thomas HH.], 80 AD3d 896, 897 [2011],quoting Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246, 1249 [2010]; see Family Ct Act §1046 [b] [i]). "A prima facie case of abuse 'may be established by evidence . . . (1)[of] an injury to a child which would ordinarily not occur absent an act or omission of [the]respondent[ ], and (2) that [the] respondent[ ] [was] the caretaker[ ] of the child at the time theinjury occurred' " (Matter of JordanXX., 53 AD3d 740, 740 [2008], quoting Matter of Philip M., 82 NY2d 238, 243[1993]; see Family Ct Act § 1046 [a] [ii]; Matter of Brooke OO. [Lawrence OO.], 74 AD3d 1429, 1430[2010], lv denied 15 NY3d 706 [2010]). "Upon presentation of such proof, the burdenthen shifts to the respondent to offer a reasonable and adequate explanation of how the childsustained the injury" (Matter of Brooke OO. [Lawrence OO.], 74 AD3d at 1430 [citationsomitted]; see Matter of Miranda HH. [Thomas HH.], 80 AD3d at 897).
To meet its burden, petitioner presented the testimony of respondent, the maternalgrandparents, Kimberly, John Waldman, a pediatric neurosurgeon, Melissa Mueller, acaseworker employed by petitioner, and the mother. Respondent denied injuring Amira andtestified that the child was with him—and in his care—from the time he picked herup from the babysitter on the evening of March 20, 2009 until the afternoon of March 23, 2009,when he left the child in the maternal grandparents' care while he went to work. The maternalgrandparents both testified that they had no contact with Amira between March 19 and 23 otherthan seeing her briefly during dinner on March 22 and, contrary to respondent's testimony, theydid not care for Amira on March 23. Kimberly testified that she watched Amira on March 23 at10:30 p.m. in the hotel room for approximately 20 minutes and, when respondent returned, shesuggested [*3]that he bring the child to the hospital because shedid not look well. Waldman, who treated Amira after she was admitted to the hospital, testifiedthat Amira's brain injuries were caused by violent shaking, slamming against a hard surface or adeceleration injury, that the injuries sustained were due to the act or omission of a caregiver, andthat at least one of the subdural hematomas occurred probably not more than three or four daysprior to her admission to the hospital. Waldman also testified that, as a result of her injuries,Amira will most likely suffer from "severe neurological impairments for her lifetime" including,among others, weakness and limited control of her arms and legs and cognitive impairments.Mueller testified that Alexander told her that he overheard his grandparents say that respondenthad hit Amira in the back of the head with the television remote and had also hit her on her back.Finally, the mother, who has been incarcerated since mid-February 2009, testified that she did notknow how Amira sustained the injuries at issue. According deference to Family Court'scredibility determinations (see Matter ofJustin CC. [Tina CC.], 77 AD3d 1056, 1057 [2010], lv denied 16 NY3d 702[2011]), we find that this evidence established petitioner's prima facie case that Amira was anabused child (see Family Ct Act § 1012 [e] [i]), and the burden of going forward torebut this evidence shifted to respondent (see Matter of Chaquill R., 55 AD3d 975, 976 [2008], lvdenied 11 NY3d 715 [2009]; Matter of Jordan XX., 53 AD3d at 740-741).
In this regard, we are unpersuaded that respondent's testimony that a babysitter watchedAmira during the late afternoons through the evenings of March 18, 19 and 20, 2009 while hewas working—inferring that the injuries did not occur while Amira was in hiscare—sufficiently rebutted petitioner's prima facie case. The record reflects that Amira wasexclusively in respondent's care from the evening of March 20 until March 23, and, in any event,respondent testified that he did not notice anything out of the ordinary after picking Amira upfrom the babysitter's house on March 18, 19 or 20. Furthermore, contrary to respondent'sargument, the statements made by Alexander to Mueller were sufficiently corroborated byWaldman's testimony regarding the injuries sustained to Amira (see Matter of Gardner v Gardner, 69AD3d 1243, 1245 n 2 [2010]; see generally Matter of Nicole V., 71 NY2d 112, 118[1987]; Matter of Miranda HH. [Thomas HH.], 80 AD3d at 898). In addition, because thenature of the abuse perpetrated on Amira "evidence[s] fundamental flaws in . . .respondent's understanding of the duties of parenthood" (Matter of Michael N. [Jason M.], 79 AD3d 1165, 1167 [2010][internal quotation marks omitted]; seeMatter of Rebecca FF. [David FF.], 81 AD3d 1119, 1120 [2011]), we decline to disturbFamily Court's finding of derivative neglect. Finally, Family Court did not err in failing to rule onrespondent's summary judgment motion, which was made after the fact-finding hearing andsimply incorporated proposed findings of fact and conclusions of law.
Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: While, prior to the fact-findinghearing, respondent also claimed to be Caitlin's father, at the fact-finding hearing, he testified thatonly Destiny and Amira were his children.