| Matter of Eric Z. (Guang Z.) |
| 2012 NY Slip Op 07308 [100 AD3d 646] |
| November 7, 2012 |
| Appellate Division, Second Department |
| In the Matter of Eric Z., an Infant. Administration for Children'sServices, Respondent; Guang Z. et al., Appellants. |
—[*1] Paul C. Cavaliere, New York, N.Y., for appellant Chengyang Z. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Selene D'Alessio of counsel),attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals,and the father separately appeals, as limited by their briefs, from so much of an order ofdisposition of the Family Court, Queens County (Richroath, J.), dated July 13, 2011, as, upon adecision of the same court dated June 15, 2011, in effect, denied their separate motions for asuspended judgment pursuant to Family Court Act § 1053.
Ordered that the order of disposition is reversed insofar as appealed from, on the facts and inthe exercise of discretion, without costs or disbursements, the separate motions for a suspendedjudgment pursuant to Family Court Act § 1053 are granted, and the matter is remitted tothe Family Court, Queens County, for further proceedings consistent herewith.
The petitioner commenced this proceeding alleging that the appellants, who attended medicalschool in China before emigrating to the United States in 2003, abused and neglected theirsecond child, born on October 27, 2008. The petition alleged that on or about May 7, 2009, thesubject child was presented to Elmhurst Hospital with a "left fronto-parietal subdural hematomaand a few bilateral retinal hemorrhages," and that the mother informed medical personnel atElmurst Hospital that the child had sustained these injuries by falling off a bed. The petitionfurther alleged that on July 2, 2009, Dr. Mark M. Souweidane, a pediatric neurosurgeon at WeillCornell Medical Center, informed the petitioner that the child's injuries were not consistent withthe explanation provided by the mother.
After the petition was filed, the Family Court ordered the temporary removal of the [*2]child from the appellants' residence pursuant to Family Court Act§ 1022. After a hearing, the Family Court denied the appellants' application pursuant toFamily Court Act § 1028 to have the child returned to their custody. On June 14, 2010, theappellants consented to a finding of abuse as to the mother and neglect as to the father; during aconference the Family Court agreed to consider a suspended judgment pursuant to Family CourtAct § 1053.
The appellants then made separate motions for a suspended judgment pursuant to FamilyCourt Act § 1053. In support of their motions they submitted letters from three doctorswho treated the subject child after his alleged fall from his bed, all of whom stated that, based ontheir examination of the child and their interactions with the appellants, they did not believe thatthe child's injuries resulted from abuse. The appellants also submitted a letter from Dr. Mark S.Diaz, a Professor of Neurosurgery at the Penn State University School of Medicine and theDirector of Pediatric Neurosurgery at the Penn State Milton S. Hershey Medical Center, whoreviewed the subject child's medical records and opined that the subject child had a conditioncalled benign external hydrocephalus, which rendered him susceptible to subdural bleeding fromminor trauma, such as a fall from a bed. Dr. Diaz opined that there was "absolutely no necessityto conclude in this case that there was evidence of abusive head trauma." Finally, the appellantssubmitted a letter from Dr. Souweidane, who stated that he had reviewed the letter submitted byDr. Diaz and agreed that the subject child may have suffered from benign externalhydrocephalus, though he noted that the condition was impossible to document without imagestudies from before the accident.
In an order of disposition dated July 13, 2011, the Family Court, upon a decision dated June15, 2011, in effect, denied the appellants' separate motions for a suspended judgment and,pursuant to Family Court Act § 1054, released the subject child to their custody under thesupervision of the petitioner for a period of 12 months. The appeal is from so much of the orderof disposition as, in effect, denied the appellants' separate motions for a suspended judgment.
A suspended judgment is one of the permissible dispositions in a child protective proceedingpursuant to Family Court Act article 10 (see Family Ct Act §§ 1052 [a] [i];1053). Judgment may be suspended for up to one year, or up to two years under "exceptionalcircumstances" (Family Ct Act § 1053 [b]), during which time the parents must complywith terms and conditions that relate to the adjudicated acts or omissions of the parents which ledto the finding of abuse or neglect (see Family Ct Act § 1053 [a], [b]; 22 NYCRR205.83 [a]). If the terms and conditions are complied with, the petition is dismissed at theconclusion of the suspended judgment period, despite the fact that a finding of neglect or abusehas been made (see Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY,Book 29A, Family Ct Act § 1053 at 57).
"The paramount concern in a dispositional hearing is the best interests of the child. Thefactors to be considered in making the determination include the parent or caretaker's capacity toproperly supervise the child, based on current information and the potential threat of future abuseand neglect" (Matter of Lemar H.,23 AD3d 383, 384 [2005] [citations and internal quotation marks omitted]).
Here, it is undisputed that the appellants had no prior criminal or child protective history, andthat the appellants had complied with all court-ordered services. Under the circumstances, weagree with the appellants and the attorney for the child that a suspended judgment would be inthe child's best interests. Accordingly, we reverse the order of disposition insofar as appealedfrom, grant the appellants' separate motions for a suspended judgment pursuant to Family CourtAct § 1053, and remit the matter to the Family Court, Queens County, for furtherdispositional proceedings, namely, the entry of a suspended judgment, the duration andconditions of which shall be determined by the Family Court. Skelos, J.P., Florio, Lott andMiller, JJ., concur.