| Matter of Maddesyn K. |
| 2009 NY Slip Op 04310 [63 AD3d 1199] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Maddesyn K., a Child Alleged to be Neglected. St.Lawrence County Department of Social Services, Respondent; Amanda M., Respondent. DianeJ. Exoo, as Law Guardian, Appellant. (Proceeding No.1) (And Two Other Related Proceedings.)In the Matter of Maddesyn K., a Child Alleged to be Neglected. St. Lawrence CountyDepartment of Social Services, Respondent; Patrick L., Respondent. Diane J. Exoo, as LawGuardian, Appellant. (Proceeding No. 2.) (And Two Other RelatedProceedings.) |
—[*1] David Willer, St. Lawrence County Department of Social Services, Canton, for St. LawrenceCounty Department of Social Services, respondent. Thomas B. Wheeler, Potsdam, for Amanda M., respondent. Gerald J. Ducharme, Canton, for Patrick L., respondent.
Spain, J.P. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered October 11, 2007, which dismissed petitioner's applications, in six proceedings pursuantto Family Ct Act article 10, to adjudicate the subject children to be neglected.
Respondent Amanda M. is the mother of Cambree M., Maddesyn K. and Abbaghail L. (bornin 2002, 2004 and 2006, respectively). Respondent Patrick L. is Abbaghail's father and, duringthe time period relevant herein, he lived with Amanda and her daughters and participated in thegirls' supervision and care. After Maddesyn sustained several serious injuries during the summerof 2006, petitioner commenced these proceedings alleging that respondents had neglectedMaddesyn and had derivatively neglected Cambree and Abbaghail. Following a fact-findinghearing, Family Court found that petitioner had not proven neglect by a preponderance of theevidence and dismissed the petitions. On the Law Guardian's appeal, we now reverse.
To establish neglect, "petitioner was required to establish by a preponderance of theevidence that a child's physical, mental or emotional well-being was impaired or at risk ofbecoming impaired as a result of respondent[s'] failure to exercise a minimum degree of care"(Matter of Ciara Z., 58 AD3d 915, 917-918 [2009]; see Family Ct Act §1012 [f] [i] [B]; § 1046 [b] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]). At thefact-finding hearing, petitioner submitted prima facie evidence of neglect by demonstrating thatinjuries sustained by Maddesyn during the summer of 2006 were such that would not ordinarilybe sustained by a child in the absence of a caretaker's acts or omissions and that the child waswithin respondents' care at the time (see Family Ct Act § 1046 [a] [ii]; Matterof Philip M., 82 NY2d 238, 243 [1993]; Matter of Jordan XX., 53 AD3d 740, 740 [2008]).
Specifically, one of petitioner's caseworkers testified that she observed several marks onMaddesyn, including unusual bilateral bruises on the child's jaw line, which appeared as thoughsomeone had grabbed her face. Contrary to Family Court's conclusion that petitioner failed toprove that Maddesyn was in the sole care and custody of respondents when this injury occurred,respondents admitted to having been responsible for Maddesyn during the relevant time frame.The nonaccidental nature of Maddesyn's bruises was further established by Cambree's statementto a caseworker that "Patrick is sometimes mean to Maddesyn," which the child demonstratedwith a choking gesture by placing her hands to her throat and neck. We find that Family Court[*2]erred in rejecting this evidence for lack of corroboration.While consistent statements made by Cambree to her mother might be insufficient standing alone(see Matter of Richard SS., 29AD3d 1118, 1121 [2006]), here Cambree's statements were further corroborated bytestimony of the telling location of Maddesyn's bruises (see Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008]).Further, petitioner established that Maddesyn suffered a number of more serious and unusualinjuries of a kind typically occurring as a result of nonaccidental trauma over a short period oftime. Specifically, she sustained a subdural hematoma, retinal bleeding and an infarct, which isan area of dead brain tissue. Generally, the medical experts agreed that her injuries were notlikely the result of accidental trauma (see Matter of Seamus K., 33 AD3d 1030, 1032 [2006]).
Respondents failed to rebut the prima facie case against them. They neither submittedevidence to establish that these injuries were sustained at a time when respondents were notcaring for the child (see id. at 1033-1034), nor offered a fully plausible explanation forthe injuries (see id. at 1033). Indeed, theories that the bruises on Maddesyn's jaw linewere caused by a zipper or from falling off a couch were undermined by medical testimony.Likewise, an explanation given for a gash on the child's lip—that she had fallen down thestairs that day—was belied by testimony that the cut had begun to heal and could not havebeen sustained that day. Although the experts would not commit with absolute certainty that thehead injuries had not occurred as a result of one of the explanations offered by respondents (thatthe child hit her head on the pavement when she had a seizure and fell backward), we find thatwhereas a single incident might be plausibly explained as the unlikely result of a typicalaccident, the extent and number of Maddesyn's injuries render it far more probable than not thatat least some of Maddesyn's injuries were not caused by the accidents described by respondents.
Accordingly, based upon the totality of the evidence, the lack of any truly plausible benignexplanation for the variety of injuries sustained by Maddesyn, as well as the nature of theinjuries, we conclude that petitioner proved neglect by a preponderance of the evidence (seeMatter of Jordan XX., 53 AD3d at 741; Matter of Seamus K., 33 AD3d at 1032). Inreaching this conclusion, we also hold that respondents derivatively neglected Cambree andAbbaghail. "A finding of derivative neglect may be made where respondent[s'] conductdemonstrates such a flawed understanding of parental duty to protect children from harm so as tocreate a substantial risk of harm for any child in his or her care" (Matter of Melissa L.,276 AD2d 856, 857 [2000], lv denied 96 NY2d 702 [2001] [citations omitted]; seeMatter of Shawn BB., 239 AD2d 678, 680 [1997]). Here, Maddesyn's injuries were theresult of conduct—whether acts or omissions (see Family Ct Act § 1046 [a][ii])—that evinces such flawed parental judgment as to place any child in their care at risk.
In light of our holding, we need not reach petitioner's remaining contentions. The mattermust be remitted for a dispositional hearing and, in the interim, all three children shall be placedin petitioner's custody.
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, petitions granted, and matter remitted to the Family Court of St. LawrenceCounty for further proceedings not inconsistent with this Court's decision and, pending suchfurther proceedings, the children shall be placed in the temporary custody of petitioner.