Opinion
Argued February 9, 2001.
March 12, 2001.
In a child protective proceeding pursuant to Family Court Act article 10, the Commissioner of the Administration for Children's Services and the Law Guardian separately appeal from an order of the Family Court, Kings County (Lopez-Torres, J.), entered September 8, 2000, which, after a fact-finding hearing, at which it was determined that the child was neglected, dismissed the petition insofar as asserted against the mother.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Stuart D. Smith of counsel), for appellant.
Monica Drinane, New York, N.Y. (Leslie A. Abbey of counsel), nonparty-appellant and Law Guardian for the child.
Joan N. G. James, New York, N.Y., for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated insofar as asserted against the mother, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing.
The petitioner established by a preponderance of the evidence that the mother allowed the infliction of physical abuse on the 20-month-old sister of Charlesia J. (see, Matter of Marcos C., 186 A.D.2d 446), and that Charlesia was therefore derivatively neglected (see, Family Ct Act § 1046[a][i]; Matter of Cruz, 121 A.D.2d 901, 902; Matter of Christina Maria C., 89 A.D.2d 855). Under Family Court Act § 1046(a)(ii), proof that a child has sustained injuries that would ordinarily not be sustained or exist unless by reason of the acts or omissions of the parent responsible for the care of the child, is prima facie evidence of child abuse or neglect (see also, Matter of Philip M., 82 N.Y.2d 238, 243). The petitioner met its burden in this case by proving that the fatal injuries sustained by the sister of Charlesia J. were of such a nature as would ordinarily not have been sustained except by reason of acts or omissions that took place while the mother was caring for the infant (see, Family Ct Act § 1046[a][ii]; [b][i]). The mother failed to rebut the evidence of parental culpability (see, Matter of Philip M., supra, at 244).