| Matter of Alanie H. (Crystal D.) |
| 2010 NY Slip Op 00260 [69 AD3d 722] |
| January 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Alanie H., Jr., an Infant. Administration forChildren's Services, Appellant; Crystal D. et al., Respondents. |
—[*1] Lauren Shapiro, Brooklyn, N.Y. (Eileen Choi, Thomas Pak, and Raun Rasmussen ofcounsel), for respondent Crystal D. Mindy L. Gress, Brooklyn, N.Y., for respondent Alanie H. Serena Rosario, Brooklyn, N.Y., for respondent Elsa B. Steven Banks, New York, N.Y. (Tamara Steckler and Diane Pazar of counsel), attorney forthe child.
In a child protective proceeding pursuant to Family Court Act article 10, the Administrationfor Children's Services appeals, as limited by its brief, from so much of an order of the FamilyCourt, Kings County (Ruiz, J.), dated May 19, 2009, as, after a hearing, determined that thepaternal grandmother was not a person legally responsible for the subject child pursuant toFamily Court Act § 1012 (g) and dismissed the petition insofar as asserted against her,dismissed the abuse allegations insofar as asserted against the parents, and granted the parents'application pursuant to Family Court Act § 1028 to return the subject child to theircustody. By decision and order on motion of this Court dated June 3, 2009, so much of the orderdated May 19, 2009, as returned the subject child to the parents was stayed, pending the hearingand determination of the appeal.
Ordered that the order is modified, on the facts and as an exercise of discretion, by deletingthe provision thereof granting the parents' application pursuant to Family Court Act §1028 to return the subject child to their custody; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The petitioner filed a Family Court article 10 abuse and neglect petition against the mother,father, and paternal grandmother of the then-four-month-old subject child, alleging that he hadsustained nonaccidental head trauma while in their custody. The subject child was removed fromthe parents and placed in a kinship foster home. The Family Court subsequently presided over aconsolidated fact-finding [*2]hearing and a hearing pursuant toFamily Court Act § 1028.
In an order dated May 19, 2009, following the hearing, the Family Court determined that thepaternal grandmother was not a person legally responsible for the subject child pursuant toFamily Court Act § 1012 (g) and dismissed the petition insofar as asserted against her,dismissed the abuse allegations insofar as asserted against the parents, and granted the parents'application pursuant to Family Court Act § 1028 to return the subject child to theircustody. The Family Court also entered a finding of medical neglect against the parents. Thefinding of medical neglect was based upon the failure of the parents to take the child to theemergency room after having been directed to do so by the child's pediatrician. The child, whohad just spent 10 days in the hospital with a diagnosis of meningitis, had vomited twice and wascrying. The petitioner appeals, inter alia, from so much of the order as dismissed the abuseallegations insofar as asserted against the parents and granted their application pursuant toFamily Court Act § 1028 to return the subject child to their custody. The attorney for thechild joins the parents in urging affirmance.
Family Court Act § 1046 (a) (ii) provides that a prima facie case of child abuse orneglect may be established by evidence of an injury which ordinarily would not occur absent anact or omission of the respondents, and which occurs at a time when the respondents were thecaretakers of the child (see Matter of Philip M., 82 NY2d 238, 243 [1993]; Matter of Aniyah F., 13 AD3d529 [2004]). "Family Court Act § 1046 (a) (ii) permits an inference to be drawn so asto establish a prima facie case of abuse or neglect against the parents or other caretakers of achild when the child suffers an injury which would not ordinarily occur in the absence of an actor omission of the caretakers" (Matterof Christopher Anthony M., 46 AD3d 896, 898 [2007]). Although the petitioner has theburden of establishing, by a preponderance of the evidence, that the respondents abused orneglected the subject child, once a prima facie case is established, the burden shifts to therespondents, who are then required to offer a satisfactory explanation for the injuries (seeMatter of Philip M., 82 NY2d at 244; Matter of Aniyah F., 13 AD3d 529 [2004]). However, thepetitioner retains the burden of proving abuse and neglect by a preponderance of the evidence(see Matter of Philip M., 82 NY2d at 244; Matter of Christopher Anthony M., 46AD3d at 898).
The petitioner established a prima facie case of abuse against the parents by introducingevidence demonstrating that the subject child, Alanie H., Jr., was under their care when hesuffered injuries of such a nature as would ordinarily not happen except by an act or omission ofthe respondent parents (see Family Ct Act § 1046 [a] [ii]; Matter of Philip M.,82 NY2d 238 [1993]).
In response to the petitioner's prima facie showing of abuse, the parents provided asatisfactory explanation for the child's injuries which rebutted the allegations of abuse. Theparents adduced evidence, which included testimony from a pediatrician and expert in childabuse, and a pediatric neurosurgeon, that the injuries sustained by the subject child were caused,not by head trauma, but by a form of meningitis, its sequelae, and the treatment he received forthe disease. Moreover, the record demonstrates that other than the one instance that was the basisfor the finding of medical neglect, the parents repeatedly obtained the necessary medicaltreatment for the subject child. In sum, the parents sufficiently rebutted the allegations of abuseasserted against them (see Matter of Marquise W., 269 AD2d 400 [2000]). Therefore, theFamily Court properly dismissed the abuse allegations insofar as asserted against them(id.).
Contrary to the petitioner's contention, the Family Court properly found that the paternalgrandmother was not a person legally responsible for the care of the subject child and, as such,she was not a proper party to the child protective proceedings (see Family Ct Act§ 1012 [g]; Matter of Yolanda D., 88 NY2d 790 [1996]).
However, the Family Court improvidently exercised its discretion in granting the parents'application pursuant to Family Court Act § 1028 to return the subject child to theircustody. Under the circumstances, including those that formed the basis for the finding by theFamily Court that the parents had committed medical neglect, the evidence supported theconclusion that the child's emotional, mental, and physical health would be at imminent risk if hewere returned to live with his parents (see Family Ct Act § 1028; see also Matter of Amber Gold J., 59AD3d 719 [2009]). Following a dispositional hearing (see Family [*3]Ct Act §§ 1045, 1047, 1052), the Family Court mustenter an order of disposition and has discretion to direct, among other things, that the subjectchild be released to the custody of his parents with the appropriate services and safeguards(see Family Ct Act § 1054). Fisher, J.P., Angiolillo, Dickerson and Leventhal, JJ.,concur.