| Matter of Loraida R. (Lori S.) |
| 2012 NY Slip Op 05576 [97 AD3d 925] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Loraida R. and Another, Children Alleged to beSeverely Abused, Abused and/or Neglected. Schenectady County Department of Social Services,Respondent; Lori S., Appellant. |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, forrespondent. Patricia L.R. Rodriguez, Schenectady, attorney for the children.
Malone Jr., J. Appeals (1) from an order of the Family Court of Schenectady County (Assini,J.), entered July 19, 2010, which, in a proceeding pursuant to Family Ct Act article 10, deniedrespondent's motion to dismiss the petition, and (2) from two orders of said court (Assini, J., andPowers, J.), entered December 3, 2010 and entered July 25, 2011, respectively, which grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicaterespondent's children to be abused and neglected and derivatively abused and neglected.
Petitioner commenced this Family Ct Act article 10 proceeding in July 2009 alleging thatrespondent had severely abused, abused and/or neglected her daughter (born in 1999) andderivatively severely abused, abused and/or neglected her son (born in 2004) by subjecting her[*2]daughter to sexual abuse.[FN1]Following a fact-finding hearing that continued over the course of eight months, respondentunsuccessfully moved to dismiss the petition in July 2010 and, in December 2010, Family Court(Assini, J.) adjudicated the daughter to be abused and neglected and the son to be derivativelyabused and neglected. At the outset of an ensuing dispositional hearing, the issue of the children'scustody was resolved by a stipulation between respondent and the children's father, which wasentered in the context of a Family Ct Act article 6 custody proceeding that had been initiated bythe father. Pursuant to that order, respondent and the children's father agreed to share joint legalcustody, with primary physical custody to the father, and respondent agreed to have supervisedvisitation with the children "as the parties may mutually and reasonably agree and consistent withany outstanding [a]rticle 10 orders pertaining to the minor children." At the conclusion of thedispositional hearing, Family Court (Powers, J.) issued an order placing respondent underpetitioner's supervision for a period of one year and imposing orders of protection andsupervision that restricted respondent's contact with the children to supervised visitation whereand when directed to do so by petitioner. Respondent appeals from the fact-finding anddispositional orders.[FN2]
Contrary to respondent's contention, petitioner satisfied its burden of proving respondent'sabuse and neglect of her daughter by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]). Petitioner offered the testimony of both a physician and a sexual abusenurse examiner who each examined the child, as well as the child's medical records andphotographic evidence of the child's injuries. Through this evidence it was established that therewas bleeding and significant trauma to the child's genital area and thighs that was not consistentwith accidental injury but, rather, was consistent with sexual abuse, namely, multiple attempts topenetrate the child's vagina and anus. The proof also established that although respondent wasaware of the child's complaints about pain and discomfort in her genital area and was advised byschool personnel to immediately take the child to a doctor, respondent did not promptly seekmedical attention for the child. In addition, petitioner's proof established that during the 48-hourperiod in which the medical experts opined that the injuries likely had been inflicted upon thechild, the child was at all times in respondent's care (see Matter of Alexander F. [Raddad I.], 82 AD3d 1514, 1515[2011]; Matter of Jordan XX., 53AD3d 740, 740 [2008]). In light of this evidence, the burden shifted to respondent " 'to offera reasonable and adequate explanation of how the child sustained the injury' " (Matter ofAlexander F. [Raddad I.], 82 AD3d at 1516, quoting Matter of Brooke OO. [Lawrence OO.], 74 AD3d 1429, 1430[2010], lv denied 15 NY3d 706 [2010]; see Matter of Philip M., 82 NY2d 238,244-245 [1993]).
In that regard, respondent presented the testimony of a physician, who did not examine [*3]the child but who had viewed the photographs of her injuries andhad reviewed the notes of the examining physician. The physician testified that, while he couldnot rule out sexual abuse or sexual contact as the cause of the injuries, it was possible that theinjuries could have been caused by either nonsexual blunt force trauma or a bacterial infection, orsome combination of both. Notably, respondent testified on her own behalf and offered noexplanation for the child's injuries.
On this record, according deference to the credibility determinations of Family Court (Assini,J.), respondent failed to rebut the presumption of parental culpability (see Matter ofAlexander F. [Raddad I.], 82 AD3d at 1517; Matter of Jordan XX., 53 AD3d at 741),and the court's finding of abuse and neglect as to respondent's daughter is supported by a soundand substantial basis. In addition, because the evidence of respondent's sexual abuse and neglectof her daughter "demonstrate[s] such an impaired level of parental judgment as to create asubstantial risk of harm for any child in [her] care," we find no basis upon which to disturb thecourt's determination that she derivatively abused and neglected her son (Matter of Branden P. [Corey P.], 90AD3d 1186, 1189 [2011] [internal quotation marks and citations omitted]; see Matter ofMarino S., 100 NY2d 361, 374-375 [2003], cert denied 540 US 1059 [2003]).
Finally, respondent challenges certain provisions in the orders of protection and supervisionthat restricted her contact with the children. However, inasmuch as those orders have expired bytheir terms, as has respondent's period of supervision by petitioner, her challenges thereto aremoot (see Matter of Justin CC. [GeorgeCC.—Tina CC.], 86 AD3d 725, 726 [2011]; compare Matter of Steven M. [Stephvon O.], 88 AD3d 1099, 1101n 3 [2011]). In any event, we are not persuaded that Family Court (Powers, J.) delegated itsresponsibility to make a best interests determination to petitioner. The record reflects that, afterconsidering all of the evidence, the court determined that supervised visitation with respondentwould be in the children's best interests, despite the fact that petitioner advocated, on therecommendation of a psychologist, against respondent having any contact with the children at all.
Peters, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: It is noted in the record thatrespondent and her children are all developmentally delayed by various degrees of mentalretardation and that respondent has a lengthy history of involvement with the social servicesdepartments in both Saratoga and Schenectady Counties.
Footnote 2: Respondent also appealed fromthe order denying her motion to dismiss the petition. However, inasmuch as respondent makes noargument with respect to such order in her brief, her appeal from that order is deemed abandoned(see Vitvitsky v Heim, 52 AD3d1103, 1104 n [2008]).