| Matter of Christopher Anthony M. |
| 2007 NY Slip Op 10536 [46 AD3d 896] |
| December 26, 2007 |
| Appellate Division, Second Department |
| In the Matter of Christopher Anthony M., a Child Alleged to beNeglected. Administration for Children's Services, Respondent; Flor M.M., Respondent; ErickG., Appellant. (Proceeding No. 1.) In the Matter of Erick M., a Child Alleged to be Abused andNeglected. Administration for Children's Services, Respondent; Flor M.M., Respondent; ErickG., Appellant. (Proceeding No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and MartaRoss of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Raymond E. Rogers of counsel),Law Guardian.
In two child protective proceedings pursuant to Family Court Act article 10, the fatherappeals from so much of an order of disposition of the Family Court, Queens County (Richroath,J.), dated June 12, 2006, entered upon his default, as, upon a fact-finding order of the same courtdated April 12, 2006, entered upon his default, finding, inter alia, that he had abused the childErick M. and had derivatively neglected the child Christopher M., and upon an order of the samecourt dated November 10, 2005, denying his motion for summary judgment dismissing thepetitions insofar as asserted against him, released the children to the mother's custody.[*2]
Ordered that the appeal from the order of disposition isdismissed, without costs or disbursements, except insofar as it brings up for review the orderdated November 10, 2005, denying the motion for summary judgment dismissing the petitionsinsofar as asserted against the father; and it is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the law, withoutcosts or disbursements, the father's motion for summary judgment dismissing the petitionsinsofar as asserted against him is granted, the petitions are dismissed insofar as asserted againstthe father, the order dated November 10, 2005 is modified accordingly, and so much of thefact-finding order dated April 12, 2006 and the order of disposition dated June 12, 2006, aspertain to the father are vacated.
Where, as here, the order of disposition appealed from was made upon the appellant'sdefault, review is limited to matters which were the subject of contest in the Family Court (see Matter of Paulino v Camacho, 36AD3d 821, 822 [2007]; Matter ofVanessa F., 9 AD3d 464 [2004]). Accordingly, review is limited to the denial of thefather's motion for summary judgment dismissing the abuse and neglect petitions insofar asasserted against him.
In support of his motion for summary judgment, the father submitted the evidence adduced atthe hearing held pursuant to Family Court Act § 1028 (hereinafter the 1028 hearing). TheFamily Court was correct to the extent that it held that the conclusions of the 1028 hearing courtconcerning the issue of imminent risk to the children were not dispositive of the ultimatedetermination on the abuse and neglect petitions (see Matter of Jacob P., 37 AD3d 836, 838 [2007]; Matter of Toni G., 8 AD3d 379,380-381 [2004]; Matter of Bobby M., 103 AD2d 777, 779 [1984]). However, contrary tothe motion court's ruling, the father properly tendered the sworn testimony of the witnesses at the1028 hearing in support of his motion, and the findings of fact by the hearing court.
Essentially, the father's credible testimony established that he and the child entered theirapartment, passed through the kitchen where Maide M., a woman who, together with her family,shared the apartment with the child and his parents, was cleaning, and then entered the bedroomadjoining the kitchen. A minute or two later, as the father was making the bed, he observed thechild crawl out of the bedroom and into the kitchen. The father believed that the child was on hisway into the living room to watch television with two other children in the apartment, as was thechild's custom. Two to three minutes later, the father heard the child scream, at which time thefather immediately ran into the kitchen and observed Maide M. putting water on the child's face.The father tried to calm the child, and immediately took the child to the mother who was downthe block at a laundromat. The parents then immediately brought the child to the local hospital. Aphysician who examined the child caused the child welfare agency to be called and aninvestigation ensued.
The physician testified that the child had a burn on his face, which appeared to be consistentwith a "hot liquid . . . falling from above and landing on his head" or "beingpoured" from over the child's head and "running down" his face. The father brought a bottle ofcleaning fluid that he thought might have caused the burn. Contrary to his belief, the bottle didnot contain a caustic liquid and was ruled out as a cause of the burn. The investigators alsodetermined that Maide M. kept a thermos of boiling water on the table or counter in the kitchenwhich she reported was used for making formula. Based upon the admissible evidence at the1028 hearing, the hearing court (Richardson, J.), in an order dated March 17, 2005, made thefollowing findings of fact:[*3]"It is clear from the credibleevidence adduced at th[e] hearing, that neither Flor M[.] nor Eric G[.] harmed the child Erick.The mother was at the laundromat when the child Erick was injured, and the father Eric G[.],while present in the home, was not present in the room at the time the child was burned. [Thefather's] testimony was credible that Ms. M[.] was the only one in the room when the child wasinjured . . . Ms M[.] reported to the child welfare authorities and police authoritiesthat she was the one who first saw the child after he was injured, and that [ ] she and the childwere alone in the room when the child was injured."
Family Court Act § 1046 (a) (ii) permits an inference to be drawn so as to establish aprima facie case of abuse or neglect against the parents or other caretakers of a child when thechild suffers an injury which would not ordinarily occur in the absence of an act or omission ofthe caretakers (see Matter of Philip M., 82 NY2d 238, 243 [1993]; Matter of Ashley RR., 30 AD3d699, 700 [2006]). Clearly, the testimony of the physician as to the mechanism of the burnwas sufficient to permit the statutory inference. It was then incumbent on the parents to rebut thepetitioner's prima facie case (see Matter of Philip M., 82 NY2d at 244; Matter ofAnthony R. C., 173 AD2d 623, 624 [1991]). However, the agency retains the burden ofproving abuse and neglect by a preponderance of the evidence (see Matter of Philip M.,82 NY2d at 244; see also Family Ct Act § 1046 [b] [i]).
Article 10 of the Family Court Act is a "fault based" statute (Matter of Philip M., 82NY2d at 243). The findings of fact and the credible evidence adduced at the hearing, includingthe father's credible testimony as corroborated by the other evidence discovered by theinvestigators, all of which was submitted in support of the motion for summary judgment, wassufficient to rebut the statutory inference of fault against the father and to establish that the injury"could reasonably have occurred accidentally" (Matter of Philip M., 82 NY2d at 244;see Matter of Eric G., 99 AD2d 835 [1984]; see also Matter of Vincent M., 193AD2d 398, 403 [1993]). Moreover, the evidence provided a sufficient factual basis for thefather's inability to explain how the child was injured. He did not know how the child was injuredbecause he was making the bed in the bedroom and was not in the presence of the child at themoment the child was injured in the kitchen.
Since the evidence submitted by the father in support of his motion for summary judgmentwas sufficient to rebut the statutory inference and to establish, prima facie, that his conduct wasneither negligent nor abusive (see Family Ct Act § 1046 [a] [i], [ii]), the burdenshifted back to the petitioner to demonstrate the existence of a triable issue of fact (see Matterof Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; seegenerally CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562[1980]).
In opposition, the petitioner failed to set forth any evidentiary proof to establish the existenceof a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557[1980]). Rather, the petitioner merely submitted an affirmation of counsel who argued that thestatutory inference applied. Under these circumstances, were we to permit the petitioner to relysolely on the statutory inference to defeat the motion for summary judgment, as the dissent wouldhave us do, we would be elevating the statutory inference to an irrebuttable presumption in theface of a motion for summary judgment.
In light of the foregoing, the father's argument that Family Court Act § 1046 (a) (ii) isunconstitutional as applied to him has been rendered academic. Miller, J.P., Skelos andMcCarthy, JJ., concur.
Covello, J. (concurring in part and dissenting in part and voting to dismiss the appeal fromthe order of disposition except insofar as it brings up for review the order dated November 10,2005, and to affirm the order of disposition insofar as reviewed): In the instant matter, a youngchild was hospitalized for a week after suffering burns while in his father's care. Thesecircumstances, by themselves, would permit a fact-finding court to infer that the father abused orneglected the child (see Family Ct Act § 1046 [a] [ii]; Matter of Philip M.,82 NY2d 238, 244-247 [1993]). Nevertheless, despite the availability of this inference, anddespite the father's failure to provide an explanation as to how the child was burned, the majorityhas determined that an issue of fact does not exist as to whether the father abused or neglectedthe child. I must disagree.
The petitioner Administration for Children's Services (hereinafter the ACS), alleging, amongother things, that 18-month-old Erick M. had been abused and/or neglected (see FamilyCt Act § 1012 [e], [f]), commenced these child protective proceedings against Erick M.'sfather, as well as Maide M., who lived with Erick M.'s family, and who would babysit Erick M.when his parents were not home. Three days earlier, Erick M., whose face had been burned, hadbeen taken to a hospital, where a physician determined that he had first and second degree burnsthat were consistent with a hot liquid or liquid chemical being "poured" on top of his head. Aftera report of suspected abuse was made, an ACS caseworker interviewed the father and Maide M.,who were home with Erick M. at the time he suffered his injuries. The father, who did not knowhow Erick M. might have been burned, told the caseworker, as well as other people to whom hespoke about the incident, that when he was in a bedroom, and Maide M. was in the kitchen, heheard Erick M. crying in the kitchen. Maide M., who also did not know how Erick M. might havebeen burned, told the caseworker, as well as other people to whom she spoke about the incident,that when she was in the kitchen washing dishes, she suddenly heard Erick M. crying frombehind her.
In support of the petitions, the ACS alleged that the father and Maide M. were both "personslegally responsible" for Erick M. (see Family Ct Act § 1012 [g]), and that they hadfailed to adequately explain how Erick M. was burned. Thus, it was clear that the ACS, whichhad no direct evidence showing how Erick M. was burned, was relying on Family Court Act§ 1046 (a) (ii). That statute provides that in a child protective proceeding, "proof ofinjuries sustained by a child . . . of such a nature as would ordinarily not besustained . . . except by reason of the acts or omissions of the parent or other personresponsible for the care of such child shall be prima facie evidence of child abuse or neglect, asthe case may be, of the parent or other person legally responsible" for the child.
After the proceedings were commenced, Erick M.'s parents made an application pursuant toFamily Court Act § 1028 to have Erick M. returned to their custody. A hearing (hereinafterthe 1028 hearing) was then held to determine that application.
Maide M. declined to testify at the 1028 hearing. However, the father did testify. Accordingto him, shortly before Erick M. was burned, he and Erick M. were in a bedroom, and Maide M.was cleaning the kitchen. While the father was making the bed, Erick M., who was "in[*4][his] care," left the room. Approximately two minutes later, heheard Erick M. screaming in the kitchen. He went to the kitchen, saw that Erick M. was injured,and asked Maide M. what had happened. However, she replied that she did not know.
Thus, the father, who took Erick M. to his mother at a laundromat before taking him to thehospital, had no idea how Erick M. got burned. On the day of the incident, though, he did suggestthat Erick M. might have accidentally had a liquid cleaning agent spilled on him, but it wasdetermined that the liquid that the father referred to was not caustic.
At the conclusion of the 1028 hearing, the court (Richardson, J.), which found that the ACSfailed to establish that Erick M. would be at imminent risk of harm if he was returned to hisparents' care, granted his parents' application (see Family Ct Act § 1028 [a]). Insupport of its determination, the court found that the evidence showed that when Erick M. wasinjured, Maide M. was the only one present in the room with him. In addition, the court, whichdrew a negative inference against Maide M. based on her failure to testify, found the father to be"fully credible, in that he didn't know what happened to" Erick M. The court also found that itwas "clear" that the father had not "harmed" Erick M.
Three weeks later, the father moved for summary judgment dismissing the petitions. Insupport of his motion, he contended that the evidence presented at the 1028 hearing, as well asthe court's decision, "conclusively establish [ed] that [he] was not involved [in] any way, shape orform with [Erick M.'s] injuries."
However, in the resultant order, the court (Richroath, J.) denied the father's motion. First, thecourt found that the father's reliance on the determination after the 1028 hearing was misplaced,as the issue that was litigated at that hearing was completely distinct from the issues that thepetitions raised, that is, whether he abused or neglected Erick M. The court then determined thatissues of fact existed as to whether Erick M. was abused or neglected.
The majority has concluded that the Family Court should have granted the father's motion forsummary judgment. However, for the reasons that follow, I believe that the court correctly deniedthat motion.
Family Court Act article 10, which is designed to protect children from injury ormistreatment, and help safeguard their physical, mental, and emotional well-being (seeFamily Ct Act § 1011), does not expressly provide for a summary judgment procedure.Nevertheless, a party in a child protective proceeding may still move for summary judgment(see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182[1994]). Summary judgment, which "remains a drastic procedural device" (Matter of Suzanne RR., 35 AD3d1012 [2006] [internal quotation marks omitted]; Matter of Hannah UU., 300 AD2d942, 943 [2002]), would, of course, only be granted if it has clearly been ascertained that there isno triable issue of fact outstanding; issue finding, rather than issue determination, is the court'sfunction on the motion (see Matter of Suffolk County Dept. of Social Servs. v James M.,83 NY2d at 182).
As was noted above, Family Court Act § 1046 (a) (ii) applies to the instant matter. TheCourt of Appeals, which has observed that "the statute is modeled on the res ipsa loquiturdoctrine," has held that the statute "authorizes a method of proof which is closely analogous tothe [doctrine's] negligence rule" (Matter of Philip P., 82 NY2d at 244; see Matter of Fantaysia L., 36 AD3d813, [*5]814 [2007]). As the Court has explained, just "[a]sin negligence cases tried on the theory of res ipsa loquitur," once the petitioner has established aprima facie case under the statute, the "burden of explanation" shifts to the respondents, who mayattempt to rebut the "evidence of culpability" for the child's injuries (Matter of Philip P.,82 NY2d at 244), which are of a type that ordinarily do not occur if a child's caretaker hasbeen "protective and nonabusive" (Matter of Tashyne L., 53 AD2d 629, 630 [1976]). Onthat note, although the statute is often described as providing for a "presumption" of culpability,it does not create a true presumption, but rather, creates a permissible inference of culpability thata fact-finding court may draw (seeMatter of Ashley RR., 30 AD3d 699, 700 [2006], citing Kambat v St. Francis Hosp.,89 NY2d 489, 495 [1997]).
In res ipsa cases, there necessarily has been "an injury which does not ordinarily occur in theabsence of negligence, and which perforce raises an issue of fact" as to whether the party againstwhom the doctrine applies "fail[ed] to follow accepted procedure or otherwise exercise due care"(Muniz v American Red Cross, 141 AD2d 386, 388-389 [1988]). It would be a "rarecase" that the party would be entitled to judgment as a matter of law (Weeden v Armor El.Co., 97 AD2d 197, 204 [1983]). This is because the party would have to come forward withrebuttal evidence that is "so overwhelmingly conclusive, it effectively overcomes any reasonableinference of [his] negligence" (Weeden v Armor El. Co., 97 AD2d at 204-205; seeMuniz v American Red Cross, 141 AD2d at 388-389; Fogal v Genesee Hosp., 41AD2d 468, 476 [1973]; see also Prosser & Keeton, Torts § 40, at 261-262 [5thed]).
Applying these principles to the instant matter (cf. Matter of Philip P., 82 NY2d at244), I would find, unlike the majority, that the father failed to meet his burden of tenderingsufficient evidence demonstrating the absence of any triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). This is because I believe that the testimony atthe 1028 hearing, which the father relied on, was not so "overwhelmingly conclusive" that itwould be unreasonable for a fact-finding court to infer that he was responsible for Erick M.'sinjuries. The testimony showed that the father was caring for Erick M. at the time he was injured,and that neither the father, nor anybody else for that matter, was able to provide an explanation asto how Erick M. was injured. As was noted above, these circumstances would justify, but notwarrant, a fact-finding court in making a finding of abuse or neglect against the father (seeMatter of Philip P., 82 NY2d at 244-247; cf. Matter of T'Yanna M., 27 AD3d 472, 473 [2006]; Matter ofCommissioner of Social Servs. of City of N.Y. v Hyacinth L., 210 AD2d 329, 330-331;Matter of Lahrick L., 118 AD2d 709, 710-711 [1986]).
On a final note, I would point out that by determining that the father met his burden on hismotion for summary judgment and that the burden shifted to the ACS to raise a triable issue offact, the majority has effectively required the ACS to come forward with direct evidence of thefather's culpability. This, however, undermines the purpose of Family Court Act § 1046 (a)(ii), which is clearly to relieve petitioning agencies of such a burden (see Matter of Roman,94 Misc 2d 796, 799-800 [1978]). Indeed, as courts have recognized for decades, obtainingdirect evidence of abuse or neglect is quite a difficult task, because the acts of abuse or neglectoften occur in the privacy of the home, without witnesses, against infants who are unable totestify on their own behalf (see Matter of Young, 50 Misc 2d 271, 272 [1966]; Matterof S, 46 Misc 2d 161, 161-162 [1965]).
For all of the foregoing reasons, I believe that the father's motion for summary judgment wascorrectly denied. Since I also believe that the father's remaining contention is without merit, Iwould affirm the order of disposition insofar as reviewed.