| Matter of Samantha M. |
| 2008 NY Slip Op 08542 [56 AD3d 299] |
| November 13, 2008 |
| Appellate Division, First Department |
| In the Matter of Samantha M. and Another, Children Alleged to beAbused and Neglected. Ana M. et al., Appellants; Administration for Children's Services,Respondent. |
—[*1] Steven N. Feinman, White Plains, for Christopher T., appellant. Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Mitchell Katz of counsel), LawGuardian.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or aboutAugust 28, 2007, which, upon a fact-finding determination that respondents had abused andmedically neglected Samantha M. and derivatively abused and neglected Amanda T., placed thechildren in the custody of the Commissioner of Social Services, unanimously affirmed, withoutcosts.
Based on the credible testimony of the then two-year-old subject child's treating physicianthat her injuries, which included multiple bruises to her face and body and a severe duodenalhematoma, were nonaccidental, coupled with the admission of respondents mother and paramourthat each had participated in an elaborate lie to cover up the fact that the latter was alone withSamantha for several hours prior to her hospitalization for her injuries, we find that FamilyCourt's findings of child abuse and medical neglect were supported by a preponderance of theevidence. The court was entitled to disregard the testimony of respondents' experts that the child'sinjuries were a result of the undiagnosed disease Henoch-Schlein Purpura (see People v Wells, 53 AD3d 181,191 [2008]), especially since neither expert actually examined her.
As to the finding that respondents medically neglected Samantha, while parents are notrequired to seek medical attention for every trifling affliction, the court must consider whether anordinarily prudent parent would have sought medical assistance in the same situation (seeMatter of Hofbauer, 47 NY2d 648, 654-655 [1979]; Matter of Faridah W., 180 AD2d451 [1992], lv [*2]denied 80 NY2d 751 [1992]). Here,the evidence established, and both respondents admitted, that the child had been ill for at leasttwo weeks prior to her hospital admission. Even crediting respondent mother's argument thatSamantha vomited "only" four or five times in the two weeks prior to her admission, amongother symptoms, we find that this was enough to put an "ordinarily prudent parent" on notice thatmedical attention was required.
We agree that respondent Christopher T. was a person legally responsible for Samanthawithin the meaning of Family Court Act § 1012 (g). The evidence established thatrespondent, who had resided in the household as respondent mother's paramour forapproximately three months prior to Samantha's hospitalization, was the father of Samantha'sunborn half sibling, picked Samantha up from daycare and took care of Samantha, acted as thefunctional equivalent of a parent in the household (see Matter of Yolanda D., 88 NY2d790, 796 [1996]).
Finally, we find that the acts committed by respondents demonstrated an impairment ofjudgment sufficient to support the derivative findings of abuse and neglect (Matter of Joshua R., 47 AD3d 465[2008], lv denied 11 NY3d 703 [2008]). Concur—Tom, J.P., Mazzarelli, Saxe,Nardelli and Buckley, JJ.