| Matter of Robert A. (Kelly K.) |
| 2013 NY Slip Op 05689 [109 AD3d 611] |
| August 21, 2013 |
| Appellate Division, Second Department |
| In the Matter of Robert A., an Infant. Suffolk CountyDepartment of Social Services, Respondent; Kelly K. et al., Appellants. (Proceeding No.1.) In the Matter of Damien O., an Infant. Suffolk County Department of Social Services,Petitioner; Robert A., Sr., Respondent, et al., Petitioner. (Proceeding No. 2.) In theMatter of Alicia A., an Infant. Suffolk County Department of Social Services,Respondent; Robert A., Sr., Appellant. (Proceeding No. 3.) In the Matter of Ayden C., anInfant. Suffolk County Department of Social Services, Respondent; Robert A., Sr.,Appellant. (Proceeding No. 4.) |
—[*1] Robert C. Mitchell, Riverhead, N.Y. (Adrienne Wallace of counsel), for appellantRobert A., Sr. Dennis M. Brown, County Attorney, Central Islip, N.Y. (James G. Bernet ofcounsel), for petitioner-respondent. Michele T. Pilo, Westhampton Beach, N.Y., attorney for the children.
In related proceedings pursuant to Family Court Act article 10, (1) the motherappeals, as limited by her brief, from so much of an order of fact-finding of the FamilyCourt, Suffolk County (Freundlich, J.), dated February 16, 2012, as, after a hearing,found that she abused the child Robert A., and (2) the father appeals, as limited by hisbrief, from stated portions of an order of disposition of the same court dated February 29,2012, which, upon the order of fact-finding dated February 16, 2012, finding, inter alia,that he had abused the child Robert A., inter alia, determined that he derivativelyneglected the children Alicia A. and Ayden C., placed him under the supervision of theSuffolk County Department of Social Services for a period of one year, and directed himto have no contact with the children Alicia A. and Ayden C. for a period of one year.
Ordered that the order of fact-finding is affirmed insofar as appealed from by themother, without costs or disbursements; and it is further,
Ordered that the father's appeal from so much of the order of disposition as placedhim under the supervision of the Suffolk County Department of Social Services for aperiod of one year and directed him to have no contact with the children Alicia A. andAyden C. for a period of one year is dismissed as academic, without costs ordisbursements, as the one-year period has expired; and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
The mother's only contention on appeal is that the Family Court lacked subject matterjurisdiction with respect to proceeding No. 1, inasmuch as the child Robert A. wasdeceased and she had no other children. This contention is without merit (see Matter of Alijah C., 1NY3d 375, 378-379 [2004]; cf. Social Services Law § 384-b [8] [b][ii]; Family Ct Act § 1012 [e] [i]).
The father contends that the evidence at the fact-finding hearing was insufficient tosupport the Family Court's finding that he abused the child Robert A. The petitioner'smedical experts opined that the rib fractures suffered by the child Robert A. had beeninflicted intentionally, and the record reflects that the child was in the parents' care whenhe suffered the fractures. Accordingly, the petitioner established a prima facie case ofchild abuse, and the burden shifted to the father to rebut the evidence of his culpability(see Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 NY2d238, 244 [1993]; Matter ofJacob B. [Rachel B.], 77 AD3d 936, 936 [2010]; Matter of Arianna L., 55 AD3d733, 733 [2008]). The father failed to provide a reasonable and adequate explanationfor the child's injuries (see Matter of Jacob B. [Rachel B.], 77 AD3d at 936;Matter of Arianna L., 55 AD3d at 733). Moreover, contrary to the father'scontention, the Family Court's assessment of the conflicting expert testimony, which isentitled to deference, is supported by the record, and we decline to disturb itsdetermination (see Matter ofDiamond K., 31 AD3d 553, 553-554 [2006]).
The proof that the father abused Robert A. was sufficient to establish that thechildren Alicia A. and Ayden C. were derivatively neglected (see Family Ct Act§§ 1012 [e] [ii]; 1046 [a] [i]; [b] [i]; Matter of Diamond K., 31AD3d at 553-554; Matter ofJesus M., 20 AD3d 479, 480 [2005]; Matter of Marc A., 301 AD2d 595,597 [2003]). Accordingly, there is no basis to disturb the Family Court's determinationwith respect to derivative neglect. Balkin, J.P., Hall, Lott and Sgroi, JJ., concur.