| Matter of Tyler S. (Melissa J.) |
| 2013 NY Slip Op 00924 [103 AD3d 731] |
| February 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Tyler S. Administration for Children'sServices, Respondent; Melissa J., Appellant, et al.,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andKaren M. Griffin of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler, Selene D'Alessio, and JudithWaksberg of counsel), attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the motherappeals, as limited by her brief, (1) from so much of an order of fact-finding of theFamily Court, Kings County (Ambrosio, J.), dated October 19, 2011, as, after a hearing,found that she abused the subject child, and (2) from so much of an order of dispositionof the same court (Gruebel, J.), dated January 6, 2012, as placed the child in the custodyof the Commissioner of Social Services of Kings County for six months, with trialdischarge to the mother and the father.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as the order of fact-finding was superseded by the order of dispositionand is brought up for review on the appeal from the order of disposition; and it is further,
Ordered that the appeal from so much of the order of disposition as placed the childin the custody of the Commissioner of Social Services of Kings County for six months,with trial discharge to the mother and the father, is dismissed as academic, without costsor disbursements; and it is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the facts,without costs or disbursements, the order of fact-finding is vacated, the petition is denied,and the proceeding is dismissed.
The appeal from so much of the order of disposition as placed the child in thecustody of the Commissioner of Social Services of Kings County for six months, withtrial discharge to the mother and the father, must dismissed as academic because theperiod of placement has expired (see Matter of Daniel W., 56 AD3d 483, 484 [2008]).However, the adjudication of abuse constitutes a [*2]permanent and significant stigma which might indirectlyaffect the mother's status in any future proceedings. Therefore, the appeal from so muchof the order of disposition as brings up for review the finding that the mother abused thesubject child is not academic (see Matter of Kyanna T. [Winston R.], 99 AD3d 1011,1013 [2012]; Matter of Daniel W., 56 AD3d at 484).
The petitioner commenced this proceeding alleging, inter alia, that the mother abusedher infant son. The petition alleged that on or about February 11, 2010, the subject child,then nine weeks old, was admitted to the hospital with head injuries and swelling to theleft eye. The mother informed medical personnel that the child had sustained theseinjuries when the child, who was wet, slipped from her hands as she was taking him fromthe bathtub and fell from the height of the mother's waist to the floor, landing directly onhis face. The petition further alleged that on February 12, 2010, it was reported that amagnetic resonance imaging examination (hereinafter the MRI) revealed an "acutesubdural hematoma" and a "left orbital . . . fracture," as well as a "chronicsubdural hematoma and multiple foci of old hemorrhage," which appeared to be about"one month old," which injury was "unexplained."
At the fact-finding hearing, the petitioner presented the testimony of two expertwitnesses. The first, a pediatrician who was board certified in pediatrics and in childabuse pediatrics, testified, in effect, that other than the chronic subdural hematoma, thechild's injuries were likely caused by the same trauma and conceded that while "rare," theinjuries were "compatible" with a fall as described by the mother. However, whileadmittedly having no specialty in neuroradiology, the pediatrician testified that she reliedheavily on the radiologists' interpretation of the MRI and concluded that the acutesubdural hematoma was not caused by the trauma described by the mother. The second, aboard-certified radiologist and neuroradiologist, testified that he rarely reviewed imagesof children younger than six years of age. However, the neuroradiologist testified, ineffect, that the acute subdural hematoma and hemorrhage did not appear to have beencaused by the described fall, as they did not appear to be recent. The neuroradiologisttestified that in the hundreds of times he had observed a subdural hematoma in an infantresulting from an impact that caused an orbital roof fracture, the subdural hematoma hadalways been opposite the area of impact. The mother's expert, a board-certifieddiagnostic radiologist and pediatric radiologist, testified to the effect that all of themedical findings could be consistent with the mother's description of how the subjectchild was injured, and the mother's expert specifically testified that she had seen an injurysimilar to that presented here, which also was the result of a child falling, providingfurther support for her conclusion that the injuries here could have been consistent withan accident. The Family Court, crediting the petitioner's expert witnesses, found, interalia, that the mother abused the child.
The welfare of a child is always of paramount concern. While acknowledging ourneed to protect the child, we are cognizant that an adjudication of child abuse, with itsconcomitant and significant stigma, should not be made absent the requisite proof.Family Court Act § 1046 (a) (ii) "provides that a prima facie case of child abuse orneglect may be established by evidence of (1) an injury to a child which would ordinarilynot occur absent an act or omission of respondents, and (2) that respondents were thecaretakers of the child at the time the injury occurred" (Matter of Philip M., 82NY2d 238, 243 [1993]). A finding that a child is abused must be based on apreponderance of the evidence (see Family Ct Act § 1046 [b] [i];Matter of Tammie Z., 66 NY2d 1, 3 [1985]; Matter of Adelia V. [Braun], 91 AD3d 659, 660 [2012])."Although the burden of proving child abuse or neglect always remains with thepetitioner, once a prima facie case has been established, a presumption of parentalresponsibility arises, and the burden of going forward to rebut the presumption shifts tothe respondents" (Matter ofPeter R., 8 AD3d 576, 577 [2004], citing Matter of Philip M., 82 NY2d238, 244 [1993]; see Matter ofChristopher Anthony M., 46 AD3d 896 [2007]).
While we agree that the petitioner established a prima facie case of abuse, we findthat the Family Court erred in determining that the mother failed to come forward withsufficient satisfactory evidence to rebut the petitioner's case (see Matter of Alanie H. [CrystalD.], 69 AD3d 722 [2010]). The mother adduced evidence, through her expert,that the subdural hematoma and hemorrhage sustained by the subject child were notcaused by another unexplained event, but rather were consistent with the same accidentaltrauma described by the mother. No other evidence was presented to support theallegation of abuse. Indeed, the record reflects, and it was undisputed, that [*3]the mother was a concerned parent who cared for her child.She was forthcoming and cooperative with the medical professionals attending her childas well as the petitioner's caseworkers. Witnesses testified that the mother was a lovingand caring parent and she had no other history with child protective agencies. Thus,based on the record before us, the petitioner failed to establish by a preponderance of theevidence that the mother abused the child (see Matter of Jose Luis T. [Carmen A.], 81 AD3d 406[2011]; Matter of Eric G., 99 AD2d 835 [1984]; Matter of Alanie H. [CrystalD.], 69 AD3d 722 [2010]).
Accordingly, the petition must be denied and the proceeding dismissed. Balkin, J.P.,Hall, Austin and Cohen, JJ., concur.