| Matter of Sidney FF. |
| 2007 NY Slip Op 07786 [44 AD3d 1121] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Sidney FF., a Child Alleged to be Abused. UlsterCounty Department of Social Services, Respondent; Ralph FF., Appellant. (Proceeding No. 1.) Inthe Matter of Phylicia GG. and Others, Children Alleged to be Neglected. Ulster CountyDepartment of Social Services, Respondent; Ralph FF., Appellant. (Proceeding No.2.) |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Christopher A. Burns, Law Guardian, Kingston.
[*2]Rose, J. Appeal from an order of the Family Court ofUlster County (McGinty, J.), entered July 3, 2006, which granted petitioner's applications, in twoproceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to be abusedand/or neglected.
When an investigation of suspected child abuse revealed that the three-month-old child (bornin 2004) of respondent had sustained several unexplained injuries, including rib and skullfractures in different stages of healing, and respondent's explanations of how the injuries hadoccurred while the child was in his care appeared to be highly unlikely, petitioner commencedthese proceedings against him alleging that the child was abused and neglected, and that twoother children in his home were derivatively neglected. After a fact-finding hearing, FamilyCourt determined that petitioner had shown a prima facie case of child abuse which respondenthad failed to effectively rebut and that petitioner then met its burden of proving both abuse andneglect by a preponderance of the evidence. The court also found the other two children to bederivatively neglected.
On his appeal, respondent primarily contends that petitioner failed to prove that he created asubstantial risk of injury to the child, and he argues that Family Court erred in drawing theinference of abuse permitted in Family Ct Act § 1046 (a) (ii). That section provides that aprima facie case of abuse or neglect is shown through "proof of injuries sustained by a child[which are] of such a nature as would ordinarily not be sustained or exist except by reason of theacts or omissions of the parent or other person responsible for the care of such child" (Family CtAct § 1046 [a] [ii]). Upon such proof, an inference arises that "the parents . . .responsible for an abused infant at the time the injuries were incurred are responsible for thoseinjuries" (Matter of Zachary MM., 276 AD2d 876, 878 [2000]; see Matter of Vivian OO., 34 AD3d1111, 1113 [2006], lv denied 8 NY3d 808 [2007]; Matter of Ashley RR., 30 AD3d699, 700 [2006]).
Here, petitioner submitted expert testimony that the child's fractures and other injuries couldnot have resulted from accidental events. Instead, each expert opined that only a more violent andabusive event could have caused such severe injuries. Because the expert testimonyoverwhelmingly supports the finding that the child's injuries were of the type which would notordinarily occur absent some act by the adult responsible for her care and that the child wasinjured on at least three occasions while respondent admittedly was responsible for her (seeMatter of Zachary MM., 276 AD2d at 877), the burden shifted to him to "offer a reasonableexplanation" for the injuries (Matter of Vivian OO., 34 AD3d at 1113; see Matter of Seamus K., 33 AD3d1030, 1031-1032 [2006]). Family Court expressly rejected respondent's attempt to do so,having discredited his testimony and that of his witnesses. According due deference to FamilyCourt's credibility determinations, we find no error in its finding that respondent abused andneglected the child.
We further conclude that Family Court's finding of derivative neglect of the two otherchildren in respondent's home is sufficiently supported by a preponderance of the evidence."[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of theabuse or neglect of any other child" (Family Ct Act § 1046 [a] [i]; see Matter of Ian H., 42 AD3d701, 704 [2007]). Here, not only did Family Court find such abuse, it took judicial notice ofan earlier proceeding where respondent was found to have abused his then-four-month-olddaughter based upon evidence of multiple fractures and bruising. Under the circumstances, wefind no basis to disturb the court's finding that respondent derivatively neglected the otherchildren [*3]because his conduct " 'demonstrate[d] such animpaired level of parental judgment as to create a substantial risk of harm for any child in [his]care' " (Matter of Henry W., 30AD3d 695, 696 [2006], quoting Matter of Tiffany AA., 268 AD2d 818, 819-820[2000] [internal quotation marks and citation omitted]; see Matter of Landon W., 35 AD3d 1139, 1141 [2006]).
Respondent's remaining arguments have been examined and found to be unpersuasive.
Mercure, J.P., Crew III, Peters and Spain, JJ., concur. Ordered that the order is affirmed,without costs.