| Matter of Brooke OO. (Lawrence OO.) |
| 2010 NY Slip Op 04682 [74 AD3d 1429] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brooke OO. and Another, Children Alleged to beAbused and Neglected. Otsego County Department of Social Services, Respondent; LawrenceOO., Appellant. |
—[*1] Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, forrespondent. Michael E. Trossett, Cooperstown, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredJune 3, 2009, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate the subject children to be abused byrespondent.
Respondent and Sheila C. (hereinafter the mother) are the parents of a daughter, Brooke OO.(born in 2007). The mother also has another daughter, Kiara PP. (born in 2004), from a previousrelationship. In September 2008, Child Protective Services received a report that Brooke hadbeen admitted to the hospital with burn injuries and a laceration. David Gutowski, a ChildProtective Services investigator, responded to the hospital and, as a result of his investigation,petitioner commenced this neglect proceeding against respondent. After a hearing, Family Courtfound Brooke to be an abused child and Kiara to be derivatively abused, and respondent appeals.[*2]
An abused child is a child under the age of 18 "whoseparent or other person legally responsible for [the child's] care (i) inflicts or allows to be inflictedupon such child physical injury by other than accidental means which causes or creates asubstantial risk of death, or serious or protracted disfigurement, or protracted impairment ofphysical or emotional health or protracted loss or impairment of the function of any bodilyorgan" (Family Ct Act § 1012 [e] [i]). "[A] prima facie case of child abuse or neglect maybe established by evidence of (1) an injury to a child which would ordinarily not occur absent anact or omission of [the] respondent[ ], and (2) that [the] respondent[ ] [was] the caretaker[ ] ofthe child at the time the injury occurred" (Matter of Philip M., 82 NY2d 238, 243 [1993];see Family Ct Act § 1046 [a] [ii]; Matter of Chaquill R., 55 AD3d 975, 976 [2008], lv denied11 NY3d 715 [2009]). Upon presentation of such proof, the burden then shifts to the respondentto offer a reasonable and adequate explanation of how the child sustained the injury (see Matter of Ashley RR., 30 AD3d699, 700 [2006]; Matter of Department of Social Servs. [Sophia S.—HarryS.], 204 AD2d 636, 636 [1994]). Here, there is a preponderance of evidence in the record(see Family Ct Act § 1046 [b] [i]) to support Family Court's conclusion thatBrooke was abused by respondent.
Testimony revealed that on the morning of September 2, 2008, the mother left for work,leaving Brooke in respondent's care. Later that morning, Brooke began to cry and respondent,unable to control his temper, prepared a pot of scalding water and then poured it over hisone-year-old daughter's face as she lay on the floor.[FN*]Respondent then walked out of the home for approximately five minutes; when he returnedinside, he found that Brooke had now fallen and gashed her face. Respondent then attempted toclean her wound and then had lunch. When the mother returned home from work, she andrespondent took Brooke to the emergency room where each initially gave investigators falseaccounts of the incident. These injuries are not of the type to occur other than by reason of theacts of the person responsible for her care, in this case her father. Respondent's preparation of thehot water, the actual act, his immediate abandonment of the injured child and his failure to seekimmediate medical attention constitute prima facie evidence of child abuse. As petitionerestablished a prima facie case, the burden then shifted to respondent to rebut the evidence (see Matter of Jordan XX., 53 AD3d740, 740-741 [2008]; Matter ofSeamus K., 33 AD3d 1030, 1031 [2006]). This respondent failed to do.
We reach a different result with respect to Family Court's determination of derivative abuse.While in no way condoning the conduct, we find insufficient proof in the record that respondentwas a person legally responsible for Kiara. Family Ct Act article 10 defines "person legallyresponsible" as including "the child's custodian, guardian, or any other person responsible for thechild's care at the relevant time. Custodian may include any person continually or at regularintervals found in the same household as the child when the conduct of such person causes orcontributes to the abuse or neglect of the child" (Family Ct Act § 1012 [g]). "A person is aproper respondent in an article 10 proceeding as an 'other person legally responsible for thechild's care' if that person acts as the functional equivalent of a parent in a familial or householdsetting" (Matter of Yolanda D., 88 NY2d 790, 796 [1996]; see Matter of Aaliyah Q., 55 AD3d969, 971 [2008]; Matter of Brent HH., 309 AD2d 1016, 1017 [2003], lvdenied 1 NY3d 506 [2004]). Here, while Family Court seems to infer that Kiara resides withrespondent and her mother, the record is actually devoid of any testimony concerning herresidence or with whom [*3]she lived. Accordingly, we cannotsustain Family Court's finding that Kiara was derivatively abused (see Matter of BrentHH., 309 AD2d at 1017).
Finally, we are not persuaded by respondent's claims that counsel was ineffective, such thathe was deprived of meaningful representation (see Matter of Hurlburt v Behr, 70 AD3d 1266, 1267 [2010]). Wenote that respondent acknowledges that counsel's decision not to present evidence at the hearingwas appropriate in light of criminal charges also pending against respondent for this incident.Counsel nonetheless made objections during petitioner's case and cross-examined a witness.Respondent's conclusory assertions, including that more objections should have been made andmore cross-examination should have been done, involve trial strategy, which will not besecond-guessed in hindsight (see Matterof Kila DD., 28 AD3d 805, 806 [2006]). Respondent's remaining allegation, regardingthe lack of an articulated basis for counsel's motion to dismiss, fails to establish that he did notreceive meaningful representation.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as adjudicated Kiara PP. to be derivativelyabused by respondent; petition dismissed to that extent; and, as so modified, affirmed.
Footnote *: Photographs of Brooke takenafter the incident and received in evidence show extensive burns to Brooke's face and a suturedwound over her right eyelid.