| Matter of Izayah J. (Jose I.) |
| 2013 NY Slip Op 02130 [104 AD3d 1107] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Izayah J. and Another, Children Alleged tobe Neglected. Chemung County Department of Social Services, Respondent; Jose I.,Appellant. (Proceeding No. 1.) In the Matter of Ryu I. and Another, Children Alleged tobe Neglected. Chemung County Department of Social Services, Respondent; Jose I.,Appellant. (Proceeding No. 2.) |
—[*1] Donald S. Thompson, Chemung County Department of Law, Elmira (David Kagle of[*2]counsel), for respondent. Daniel J. Cain, Elmira, attorney for the children.
Garry, J. Appeals from two orders of the Family Court of Chemung County (Hayden,J.), entered May 3, 2012 and May 7, 2012, which granted petitioner's applications, in twoproceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to beneglected.
In July 2011, respondent was caring for his paramour's son (born in 2007) anddaughter (born in 2008) in the City of Elmira, Chemung County, when the son suffered afractured tibia. In August 2011, the paramour gave birth prematurely to twins fathered byrespondent; the twins were hospitalized for several months thereafter in a neonatalintensive care unit (hereinafter NICU). Petitioner commenced the first of theseproceedings in October 2011, alleging that respondent neglected the paramour's son anddaughter when the son was injured.[FN1] In December 2011, petitioner commenced the second proceeding, alleging thatrespondent neglected the twins while they were in the NICU. After a consolidatedfact-finding hearing, Family Court sustained both petitions. Respondent waiveddispositional hearings and, upon his agreement to certain terms and conditions, the courtissued orders of neglect. Respondent appeals from both orders.[FN2]
To support the claim that respondent neglected the son, petitioner was required toshow by a preponderance of the evidence that he was harmed or placed at risk of harm byrespondent's failure to exercise a minimum degree of care (see Family Ct Act§§ 1012 [f] [i]; 1046 [b] [i]; Matter of Ciara Z., 58 AD3d 915,917-918 [2009]; Matter of Victoria CC., 256 AD2d 931, 932 [1998]). Here, aprima facie case of neglect was established, as it was undisputed that respondent wascaring for the son when he was injured, and petitioner demonstrated that the injury wouldnot ordinarily have happened in the absence of respondent's act or omission (seeFamily Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 NY2d 238, 243-244[1993]; Matter of MaddesynK., 63 AD3d 1199, 1200 [2009]). The son's treating orthopedic surgeon testifiedthat his injury—a [*3]spiral tibial shaft fracturewith bony fragments, including a large butterfly fragment—was consistent with ahigh energy accident requiring significant force, such as an ATV accident or downhillbicycle crash, and was not consistent with a "simple fall," such as a fall down a typicalflight of stairs.[FN3] The burden thus shifted to respondent to rebut the presumption of culpability by offeringa reasonable and adequate explanation (see Matter of Philip M., 82 NY2d at 244;Matter of Seamus K., 33AD3d 1030, 1031-1032 [2006]). Respondent offered no medical proof, and histestimony that he was half asleep or "dazing" on the couch when he heard thumps anddiscovered that the son had fallen down the stairs did not address the surgeon's opinionregarding the high-energy nature of the injury. According deference to Family Court'scredibility assessments (see e.g.Matter of Stevie R. [Arvin R.], 97 AD3d 906, 907 [2012]), we conclude thatrespondent's neglect of the son was proven by a preponderance of the evidence (see Matter of Steven M. [StephvonO.], 88 AD3d 1099, 1101 [2011]; Matter of Maddesyn K., 63 AD3d at1201-1202).
We reach the same conclusion as to Family Court's determination that respondentneglected the twins. Determining whether a parent's conduct constitutes neglect is basedupon an objective analysis as to whether "a reasonable and prudent parent [would] haveso acted, or failed to act, under the circumstances then and there existing. . . tak[ing] into account the special vulnerabilities of the child" (Nicholson v Scoppetta, 3NY3d 357, 370 [2004] [citation omitted]; see Matter of Sayeh R., 91 NY2d306, 315 [1997]; Matter ofRebecca KK., 51 AD3d 1086, 1087 [2008]). A physician specializing inneonatal intensive care medicine, who treated the twins during their four-month stay inthe NICU, testified that the twins faced serious health problems resulting from theirprematurity that posed long-term medical risks and required specialized care. She opinedthat parents of such vulnerable infants needed assistance in learning to care for themsafely at home and, thus, should visit the NICU frequently to obtain hands-on trainingfrom medical personnel, especially when discharge was approaching. In particular, shetestified that the twins' caretakers would need training, patience and vigilance in handlingtheir special needs—including, among other things, fussiness and difficulty infeeding—and identifying changes in condition that required medical assistance.Petitioner's proof demonstrated that respondent did not visit the twins often, did not staylong when he did visit and rarely participated in such tasks as feeding them; during thelast 15 days before their discharge, he visited the NICU only twice.
This physician and other hospital employees further testified about two episodeswhen respondent became so explosively angry in the hospital that hospital staff werefrightened and intimidated and security personnel had to intervene. In the first of theseincidents, respondent became upset over a change in the twins' medical treatment and, fora period of approximately half an hour, shouted, made threats and swore at NICUpersonnel, refused to listen to their attempts to explain the treatment change, and had tobe escorted into isolation. On the second [*4]occasion,respondent again shouted, swore, and issued threats; when security personnel thenrefused to permit him to enter the NICU, he summoned police. In December 2011, thetwins' treating physician wrote a letter describing her "grave concerns" over theseincidents and respondent's minimal contact with the twins, stating that she did not believethat they would be safe if discharged into his care and asking to have them placed in afoster home.[FN4]
As Family Court noted, respondent himself testified that he did not work because hewas disabled by "ADHD, ADD and anxiety" and, thus, found it difficult to stay awakeduring the day or to maintain a regular schedule. When the court inquired as to how hewould be able to care for the twins under such circumstances, he replied that he wouldhave to "learn how to stay awake" and stated that there was "nothing special" about theirmedical needs. In view of the twins' special vulnerability and the otherevidence—including the unexplained high-energy injury suffered by the son whilein respondent's care—we are satisfied that petitioner established neglect byshowing that the twins were in imminent danger of becoming impaired as a result ofrespondent's failure to exercise a minimum degree of care (see Family Ct Act§§ 1012 [f] [i]; 1046 [b] [i]; Matter of Chakeeo B.-G., 273 AD2d915, 916 [2000]; see also Matterof Leroy R., 84 AD3d 485, 486 [2011]).
Respondent's remaining contentions, including his evidentiary challenges, have beenexamined and found to be without merit.
Mercure, J.P., Rose and Lahtinen, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: The October 2011petition did not name the twins as subjects but included an allegation that they werederivatively neglected. Family Court made no finding as to derivative neglect.
Footnote 2: Respondent is deemedto have abandoned any challenge to Family Court's determination that he neglected thedaughter, as he failed to address that issue in his brief (see Matter of Miranda HH.[Thomas HH.], 80 AD3d 896, 897 n 1 [2011]).
Footnote 3: Based upon the historyobtained at the time of the physical examination, the surgeon initially testified regardinga fall down just five steps. Upon further questioning, however, she clearly addressed afall down a full flight, or 12 steps.
Footnote 4: Respondent's claim thatadmission of this letter violated the best evidence rule is without merit, as its contentswere proven by admission of the original writing (see Schozer v William Penn LifeIns. Co. of N.Y., 84 NY2d 639, 643 [1994]; Schardt v Posson, 41 AD3d 1135, 1136 [2007], lvdenied 9 NY3d 814 [2007]). In any event, respondent had a full opportunity tocross-examine the physician regarding the letter's contents.