| Matter of Jezekiah R.-A. (Edwin R.-E.) |
| 2010 NY Slip Op 08217 [78 AD3d 1550] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Jezekiah R.-A. and Another. Erie County Department ofSocial Services, Respondent; Edwin R.-E., Appellant, et al., Respondents. (Appeal No.2.) |
—[*1] Joseph T. Jarzembek, Buffalo, for petitioner-respondent. David C. Schopp, Attorney for the Children, the Legal Aid Bureau of Buffalo, Inc., Buffalo(Charles D. Halvorsen of counsel), for Jezekiah R.-A. And Jose R.-A.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered June 2,2009 in a proceeding pursuant to Family Court Act article 10. The order, among other things,determined the subject children to be severely abused.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the findings of severe abuse with respect to Jezekiah R.-A. and derivative severe abuse withrespect to Jose R.-A. and as modified the order is affirmed without costs.
Memorandum: These consolidated appeals arise from two related child protective proceedingspursuant to article 10 of the Family Court Act. Appeal No. 1 concerns a petition alleging, inter alia, thatrespondent father derivatively abused and severely abused Baby Girl A., the daughter of respondentmother, while appeal No. 2 concerns a petition alleging that the father and other respondents abusedand severely abused Jezekiah R.-A and derivatively abused and severely abused Jose R.-A, thechildren of both the father and the mother. With respect to the order in appeal No. 1, the father has notraised any issues concerning that order in his brief on appeal, and we thus deem any such issuesabandoned (see Matter of Sportello v Sportello [appeal No. 1], 70 AD3d 1446 [2010];Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).
We reject the contention of the father in appeal No. 2 that the court erred in finding that Jezekiahwas abused and that Jose was derivatively abused. Petitioner established by the requisitepreponderance of the evidence that Jezekiah sustained injuries consistent with shaken baby syndrome,including a corner fracture of his right femur, bilateral subdural hematomas, and retinal hemorrhages(see generally Family Ct Act § 1046 [b] [i]). In addition, the physician who examinedhim opined that [*2]some of the hematomas were days or weeks olderthan others, and that the fracture preceded the most recent hematoma. None of the explanationsoffered by the child's mother or father to the child protective caseworker was consistent with the natureand severity of the injuries (see Matter ofDevre S. [Carlee C.], 74 AD3d 1848, 1849 [2010]). The father declined to testify at thefact-finding hearing, and thus the court was entitled to draw "the strongest inference [against him] thatthe opposing evidence permits" (Matter of Nassau County Dept. of Social Servs. v Denise J.,87 NY2d 73, 79 [1995]). Petitioner also established by the requisite preponderance of the evidencethat Jose was derivatively abused, i.e., petitioner established that the abuse of Jezekiah "is so closelyconnected with the care of [Jose] as to indicate that the second child is equally at risk" (Matter ofMarino S., 100 NY2d 361, 374 [2003], cert denied sub nom. Marino S. v Angel GuardianChildren & Family Servs., Inc., 540 US 1059 [2003]; see Devre S., 74 AD3d at 1849;Family Ct Act § 1046 [a] [i]).
We agree with the father in appeal No. 2, however, that there is insufficient evidence that Jezekiahwas severely abused by him inasmuch as Jezekiah was also in the care of the mother and grandparentsduring the relevant time period. It is well settled that severe abuse may be found if "the child has beenfound to be an abused child as a result of reckless or intentional acts of the parent committed undercircumstances evincing a depraved indifference to human life, which result in serious physical injury tothe child as defined in [Penal Law § 10.00 (10)]" (Social Services Law § 384-b [8] [a][i]; see Matter of Alijah C., 1 NY3d375, 378-379 [2004]). Furthermore, pursuant to Family Court Act § 1046 (b) (ii) and§ 1051 (e), a finding of severe abuse must be supported by clear and convincing evidence(see Alijah C., 1 NY3d at 378 n 2). Although the evidence supports a finding that Jezekiahwas abused, we cannot conclude on the record before us that there is clear and convincing evidenceestablishing that the father acted under circumstances evincing a depraved indifference to human life,and thus we agree with the father that the evidence of severe abuse with respect to Jezekiah isinsufficient (cf. Matter of Jamaal NN., 61AD3d 1056 [2009], lv denied 12 NY3d 711 [2009]). For the same reasons, we furtherconclude in appeal No. 2 that the finding that the father derivatively severely abused Jose is notsupported by the requisite clear and convincing evidence (see generally Marino S., 100 NY2dat 374-375). We therefore modify the order in appeal No. 2 accordingly. In view of our determination,we need not address the father's remaining contention in appeal No. 2. Present—Smith, J.P.,Lindley, Sconiers, Pine and Gorski, JJ.