| Matter of Jaiden T.G. (Shavonna D.-F.) |
| 2011 NY Slip Op 08591 [89 AD3d 1021] |
| November 22, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jaiden T.G., an Infant. Administration for Children'sServices, Appellant. Shavonna D.-F. et al., Respondents. |
—[*1] Lauren Shapiro, Brooklyn, N.Y. (Eileen Choi of counsel), for respondent Shavonna D.-F. Lisa Lewis, Brooklyn, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the petitioner appealsfrom an order of the Family Court, Kings County (Beckoff, J.), dated June 9, 2011, which, after ahearing, dismissed the petition insofar as asserted against the mother. By decision and order on motiondated July 7, 2011, this Court granted the petitioner's motion to stay enforcement of the order and tocontinue the remand of the subject child to it pending hearing and determination of the appeal.
Ordered that the order is affirmed, without costs or disbursements.
A petition was filed against the mother and the mother's paramour, Joseph T., alleging, inter alia,that the subject child was an abused child in that he had been admitted to the hospital and diagnosedwith a "greenstick fracture" of the right arm, and that the mother offered multiple and inconsistentpossible explanations for the injury. After a hearing, the Family Court dismissed the petition against themother, finding, among other things, that the mother had rebutted the petitioner's case of abuse byestablishing that Joseph T. had inflicted the injury in her absence.
Section 1046 (a) (ii) of the Family Court Act provides that in any hearing under article 10 of thatact "proof of injuries sustained by a child or of the condition of a child of such a nature as wouldordinarily not be sustained or exist except by reason of the acts or omissions of the parent or otherperson responsible for the care of such child shall be prima facie evidence of child abuse or neglect, asthe case may be, of the parent or other person legally responsible" (Family Ct Act § 1046 [a][ii]).
The statute permits a finding of abuse based upon evidence of an injury to a child which wouldordinarily not occur absent acts or omissions of the responsible caretaker, and authorizes a method ofproof which is closely analogous to the negligence rule of res ipsa loquitur (see Matter of PhilipM., 82 NY2d 238, 244 [1993]). "[O]nce a petitioner in a child abuse case has established a primafacie case, the burden of going forward shifts to respondents to rebut the evidence of parentalculpability"; however, "the burden of proving child abuse always rests with petitioner" (id. at244). Once a prima facie case is established, there is a rebuttable presumption of parental culpability,which the Family Court may or may not accept based upon all the evidence in the record (id. at246). In response to a prima facie case, a respondent may rest, or may challenge the establishment ofthe prima facie case by presenting evidence, for example, that the child was not in the respondent's careat the time of the injury or that the injury could reasonably have occurred accidentally, or by counteringevidence of the child's condition (id. at 245).
Here, the petitioner established a prima facie case of abuse by presenting evidence that the subjectchild, who was four months old at the time, suffered a greenstick fracture, that a child of that age andphysical ability would not normally sustain such a fracture accidentally, and that the mother'sexplanation, that the child may have suffered the injury due to a fall from a bed days earlier, wasinconsistent with the injury sustained. However, the mother rebutted the presumption of parental abusewith evidence, which was credited by the Family Court, that the child was solely in the care of herparamour at the time of the injury. Accordingly, the Family Court properly dismissed the petition insofaras asserted against the mother (see Matter ofAlanie H. [Crystal D.], 69 AD3d 722 [2010]; Matter of Marquise W., 269 AD2d400 [2000]). Dillon, J.P., Balkin, Leventhal and Belen, JJ., concur.