| Matter of Jaylin C. (Hassan M.) |
| 2014 NY Slip Op 04482 [118 AD3d 872] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jaylin C. Administration for Children'sServices, Respondent; Hassan M. et al., Appellants. (Proceeding No. 1.) In the Matter ofJaya P. Administration for Children's Services, Respondent; Hassan M. et al., Appellants.(Proceeding No. 2.) In the Matter of Janelle P. Administration for Children's Services,Respondent; Hassan M. et al., Appellants. (Proceeding No.3.) |
Elliot Green, Brooklyn, N.Y., for appellant Hassan M.
Matthew M. Lupoli, Flushing, N.Y., for appellant Aisha M.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondent.
Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht ofcounsel), attorney for the children.
In three related child protective proceedings pursuant to Family Court Act article 10,the father and the paternal grandmother separately appeal (1) from an order offact-finding of the Family Court, Kings County (Ambrosio, J.), dated August 10, 2012,which, after a hearing, found that they abused the child Janelle P. and derivativelyneglected the children Jaya P. and Jaylin C., and (2), as limited by their respective briefs,from so much of an order of disposition of the same court (Gruebel, J.) dated December19, 2012, as, upon the fact-finding order, and after a dispositional hearing, released thethree subject children to the custody of the nonrespondent mother.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the order of fact-finding was superseded by the order of dispositionand is brought up for review on the appeal from the order of disposition; and it isfurther,
[*2] Ordered that the order ofdisposition is reversed insofar as appealed from, on the facts, without costs ordisbursements, the order of fact-finding is vacated, the petitions are denied, and theproceedings are dismissed.
In June 2010, the child Janelle P., who was approximately four months old, wasadmitted to the hospital based on a primary complaint of swelling above her left ear.Subsequently, on June 21, 2010, the petitioner commenced these proceedings allegingthat the father and the paternal grandmother (hereinafter together the appellants) abusedJanelle P., and derivatively neglected the children Jaya P. and Jaylin C. Specifically, thepetitions alleged that Janelle P. had been admitted to the hospital and diagnosed with acephalohematoma and small subdural hematoma, and that the appellants were unable toprovide an adequate explanation as to how Janelle P. sustained an injury to her headwhile under their exclusive care and custody. After a fact-finding hearing, the FamilyCourt determined that the petitioner had sustained its burden of proving by apreponderance of the evidence that the appellants abused Janelle P. and derivativelyneglected Jaya P. and Jaylin C.
A prima facie case of child abuse or neglect may be established by evidence of aninjury which ordinarily would not occur absent an act or omission of the responsiblecaretaker (see Family Ct Act § 1046 [a] [ii]; Matter of PhilipM., 82 NY2d 238, 243 [1993]; Matter of Fantaysia L., 36 AD3d 813, 814 [2007]; Matter of Aniyah F., 13 AD3d529, 530 [2004]). "If the petitioner establishes a prima facie case of abuse, 'theburden of going forward shifts to respondents to rebut the evidence of parentalculpability,' although the burden of proof always remains with the petitioner" (Matter of David T.-C. [DeniseC.], 110 AD3d 1084, 1085 [2013], quoting Matter of Philip M., 82NY2d at 244; see Matter ofAliyah G. [Arlenie G.], 95 AD3d 885, 886 [2012]).
Here, the evidence presented by the petitioner did not establish a prima facie case ofabuse against the appellants. The petitioner's expert medical witness, a physician at thehospital where Janelle P. was admitted, testified that Janelle P. was diagnosed with amillimeter-sized subdural hematoma and "encephalo hematoma" caused by blunt forcetrauma. However, he opined that the child's injury could have been caused by a fall of acouple feet onto a hard surface. Moreover, he testified that there was no discolorationwith the swelling, that the child was not in any pain, and that aside from the swelling, thechild was asymptomatic. He also testified that when he examined the child, she looked"great," and was smiling and happy. Under the particular circumstances of this case, thepetitioner failed to establish by a preponderance of the evidence that the appellantsabused Janelle P. and derivatively neglected Jaya P. and Jaylin C. (cf. Matter of David T.-C. [DeniseC.], 110 AD3d 1084, 1086 [2013]; Matter of Tyler S. [Melissa J.], 103 AD3d 731, 733-734[2013]).
Accordingly, the petitions must be denied and the proceedings dismissed.
In light of our determination, we need not reach the appellants' remainingcontentions. Skelos, J.P., Lott, Roman and LaSalle, JJ., concur.