| Matter of Aliyah G. (Arlenie G.) |
| 2012 NY Slip Op 03447 [95 AD3d 885] |
| May 1, 2012 |
| Appellate Division, Second Department |
| In the Matter of Aliyah G. Administration for Children's Services,Appellant; Arlenie G. et al., Respondents. (Proceeding No. 1.) In the Matter of Ishmael G., Jr.Administration for Children's Services, Appellant; Arlenie G. et al., Respondents. (ProceedingNo. 2.) |
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Lauren Shapiro, Brooklyn, N.Y., and Dewey & LeBoeuf LLP, New York, N.Y. (John M.Aerni, Hugh D. Sandler, Nathan R. Jones, and Jessica Marcus of counsel), for respondent ArlenieG. Yisroel Schulman, New York, N.Y. (Christina Brandt-Young of counsel), for respondentIshmael G., Sr. Steven Banks, New York, N.Y. (Tamara Steckler and Claire V. Merkine of counsel),attorney for the children.
In related child abuse and neglect proceedings pursuant to Family Court Act article 10, thepetitioner appeals from an order of the Family Court, Kings County (Danoff, J.), dated May 13,2011, which, upon a decision of the same court, also dated May 13, 2011, made after afact-finding hearing, dismissed the petitions.
Ordered that on the Court's own motion, the notice of appeal from the decision is deemed tobe a notice of appeal from the order dated May 13, 2011 (see CPLR 5512 [a]); and it isfurther,
Ordered that the order is reversed, on the law and the facts, without costs or disbursements,the petitions are reinstated, it is found that the respondents, Arlenie G. and Ishmael G., Sr.,abused and neglected the child Aliyah G., and derivatively abused and neglected the childIshmael G., Jr., and the matter is remitted to the Family Court, Kings County, for a dispositionalhearing in accordance herewith and a disposition thereafter.[*2]
Article 10 of the Family Court Act defines an "abusedchild" as "a child under the age of 18 whose parent or other person legally responsible for thechild's care 'commits, or allows to be committed, a sex offense against such child' " (Matter ofPhilip M., 82 NY2d 238, 243 [1993], quoting Family Ct Act § 1012 [e] [iii]). A primafacie case of child abuse or neglect may be established by evidence of an injury to a child whichordinarily would not occur absent an act or omission of the responsible caretaker (seeFamily Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 NY2d at 243; Matter of Fantaysia L., 36 AD3d813, 814 [2007]; Matter of Magnolia A., 272 AD2d 115, 116 [2000]). The FamilyCourt Act "authorizes a method of proof which is closely analogous to the negligence rule of resipsa loquitur," and "once a petitioner in a child abuse case has established a prima facie case, theburden of going forward shifts to respondents to rebut the evidence of parental culpability"(Matter of Philip M., 82 NY2d at 244; see Matter of Fantaysia L., 36 AD3d at814). However, "the burden of proving child abuse always rests with petitioner" (Matter ofPhilip M., 82 NY2d at 244).
Here, contrary to the Family Court's determination, the petitioner sustained its burden ofproof by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) thatthe child Aliyah G. was an abused child. The medical evidence presented by the petitionerestablished that Aliyah G., then three years old, had contracted gonorrhea while under the careand supervision of the respondents. "[U]nexplained evidence that a young child suffers from asexually-transmitted disease suffices to establish a prima facie case of child abuse" (Matter ofMagnolia A., 272 AD2d at 116; see Matter of Philip M., 82 NY2d at 243; Matterof Lauren B., 200 AD2d 740, 740 [1994]; Matter of P. Children, 172 AD2d 839[1991]; Matter of Tania J., 147 AD2d 252, 259 [1989]).
Once the petitioner established a prima facie case, the burden shifted to the respondents torebut the evidence of parental culpability (see Matter of Fantaysia L., 36 AD3d at 814;Matter of Lauren B., 200 AD2d at 740; Matter of P. Children, 172 AD2d at 839).The respondents failed to rebut the petitioner's prima facie case of abuse (see Matter ofFantaysia L., 36 AD3d at 814; Matter of Lauren B., 200 AD2d at 740).
Further, a preponderance of the credible evidence supports a finding that the respondentsneglected Aliyah G. (see Family Ct Act § 1012 [f] [i] [B]; Matter of Tristan R., 63 AD3d1075, 1078 [2009]). Finally, the proof of abuse and neglect by the respondents of Aliyah G.was sufficient to establish that the respondents derivatively abused and neglected the child'ssibling, Ishmael G., Jr. (see Family Ct Act § 1046 [a] [i]; Matter of TristanR., 63 AD3d at 1078; Matter ofAstrid C., 43 AD3d 819, 821 [2007]; Matter of Kristina R., 21 AD3d 560, 562 [2005]).
Accordingly, we reinstate the petitions and remit the matter to the Family Court, KingsCounty, for a dispositional hearing and a disposition thereafter. Rivera, J.P., Chambers, Romanand Miller, JJ., concur.