| Matter of Stephen Daniel A. (Sandra M.) |
| 2014 NY Slip Op 08007 [122 AD3d 834] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Stephen Daniel A. Administration forChildren's Services, Respondent; Sandra M., Appellant, et al.,Respondent. |
Frank A. Buono, Staten Island, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmersand Deborah A. Brenner of counsel), for petitioner-respondent.
Lewis S. Calderon, Jamaica, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the motherappeals from an order of disposition of the Family Court, Queens County (Tally, J.),dated September 23, 2008, which, upon an order of fact-finding of the same court(Friedman, J.), dated July 13, 2005, finding, among other things, that she abused thesubject child, inter alia, placed the subject child in the custody of the Commissioner ofSocial Services of the City of New York until the next permanency hearing.
Ordered that the appeal from so much of the order of disposition as placed thesubject child in the custody of the Commissioner of Social Services of the City of NewYork until the next permanency hearing is dismissed, without costs or disbursements;and it is further,
Ordered that the order of disposition is affirmed insofar as reviewed, without costs ordisbursements.
In 2001, the New York City Administration for Children's Services commenced thischild protective proceeding pursuant to Family Court Act article 10 against the motherand the father of the subject child. In an order of fact-finding dated July 13, 2005, madeafter a hearing, the Family Court found that the mother and the father abused the subjectchild. In an order of disposition dated September 23, 2008, the Family Court placed thesubject child in the custody of the Commissioner of Social Services of the City of NewYork until the next permanency hearing.
The appeal from so much of the order of disposition as placed the subject child in thecustody of the Commissioner of Social Services of the City of New York until the nextpermanency hearing must be dismissed as academic, as that part of the order has alreadyexpired (see Matter of GraysonJ. [Sharon H.], 119 AD3d 575 [2014]). Moreover, since the mother's parentalrights were [*2]subsequently terminated, and we areaffirming the order of fact-finding and disposition in the related termination proceeding(see Matter of Stephen Daniel A. [Sandra M.-A.], 122 AD3d 837 [2014] [decidedherewith]), any modification of the portion of the order of disposition in this proceedingthat continued the placement of the subject child would have no practical effect (see Matter of Tyler C. [AndreaG.], 82 AD3d 1093 [2011]; Matter of Ernest Y. v Orange County Dept. of Social Servs., 9AD3d 411 [2004]; Matter of Keith C., 226 AD2d 369 [1996]). However, theappeal from the portion of the order of disposition that brings up for review so much ofthe order of fact-finding dated July 13, 2005, as found that the mother abused the subjectchild is not academic, since the adjudication of abuse constitutes a permanent andsignificant stigma, which might indirectly affect the mother's status in future proceedings(see Matter of Linda F. [JoseF.], 119 AD3d 944 [2014]).
Contrary to the mother's contention, the Family Court properly found that she abusedthe subject child. The Family Court Act defines an "[a]bused child," inter alia, as "a childless than eighteen years of age whose parent or other person legally responsible for his[or her] care . . . inflicts or allows to be inflicted upon such child physicalinjury by other than accidental means which causes or creates a substantial risk of death[or] creates or allows to be created a substantial risk of physical injury to such child byother than accidental means which would be likely to cause death" (Family Ct Act§ 1012 [e] [i], [ii]). "The petitioner may establish a prima facie case ofabuse through a method of proof 'closely analogous to the negligence rule of res ipsaloquitur' " (Matter ofDavid T.-C. [Denise C.], 110 AD3d 1084, 1085 [2013], quoting Matter ofPhilip M., 82 NY2d 238, 244 [1993]; see Family Ct Act § 1046[a] [ii]). "If the petitioner establishes a prima facie case of abuse, 'the burden of goingforward shifts to respondents to rebut the evidence of parental culpability,' although theburden of proof always remains with the petitioner" (Matter of David T.-C. [DeniseC.], 110 AD3d at 1085, quoting Matter of Philip M., 82 NY2d at 244). Here,the petitioner established a prima facie case of abuse by presenting evidencedemonstrating that the subject child sustained injuries that were inconsistent with themother's explanation that the subject child's older sibling had accidentally dropped thesubject child, who was then less than one month old (see Matter of Jaiden T.G. [Shavonna D.-F.], 89 AD3d 1021[2011]; Matter of SamuelL., 52 AD3d 394 [2008]). Further, the mother failed to proffer a reasonable andadequate explanation for the subject child's injuries (see Matter of Kaitlynn I., 64 AD3d 654 [2009]). Moreover,contrary to the mother's contention, the Family Court's assessment of the conflictingexpert testimony, which is entitled to deference, is supported by the record, and wedecline to disturb its determination (see Matter of Robert A. [Kelly K.], 109 AD3d 611, 613[2013]).
The mother's remaining contentions are either without merit or not properly beforethis Court. Mastro, J.P., Hall, Roman and Maltese, JJ., concur.