Opinion
2020–02152, 2020–05144 Docket No. NA–25271–2018
10-06-2021
In the MATTER OF ARIAH L. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Jascinta F. (Anonymous), appellant, et al., respondents.
Helene Bernstein, Brooklyn, NY, for appellant. Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Ingrid R. Gustafson and Elizabeth I. Freedman of counsel), for petitioner-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Judith Stern of counsel), attorney for the child.
Helene Bernstein, Brooklyn, NY, for appellant.
Georgia M. Pestana, Corporation Counsel, New York, N.Y. (Ingrid R. Gustafson and Elizabeth I. Freedman of counsel), for petitioner-respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Judith Stern of counsel), attorney for the child.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 10, the respondent Jascinta F. appeals from (1) an order of fact-finding of the Family Court, Kings County (Alicea Elloras–Ally, J.), dated January 27, 2020, and (2) an order of disposition of the same court dated January 28, 2020. The order of fact-finding, insofar as appealed from, upon a decision of that court dated January 24, 2020, made after a fact-finding hearing, found that the respondent Jascinta F. abused the subject child. The order of disposition, upon the order of fact-finding, directed the respondent Jascinta F. to complete a mental health evaluation and restricted her contact with the subject child to supervised visits.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the appeal from so much of the order of disposition as directed the respondent Jascinta F. to complete a mental health evaluation and restricted her contact with the subject child to supervised visits is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition as directed the respondent Jascinta F., the maternal grandmother (hereinafter the appellant), to complete a mental health evaluation and restricted her contact with the subject child to supervised visits must be dismissed, as that portion of the order of disposition has been rendered academic by a so-ordered stipulation dated January 27, 2020. However, the appeal from so much of the order of disposition as brings up for review the finding of abuse against the appellant in the order of fact-finding is not academic (see Matter of Dallas P. [Allison P.], 185 A.D.3d 589, 124 N.Y.S.3d 815 ).
The petitioner commenced this child protective proceeding alleging that the then-seven-week-old child was abused by her parents and the appellant. The petition specifically alleged that the parents and the appellant abused the child at some point prior to the child being diagnosed with unexplained multiple fractures, including a displaced fracture of her left femur. In an order of fact-finding dated January 27, 2020, the Family Court found, after a hearing, that the child was abused by the parents and the appellant.
The Family Court did not err in determining that the appellant was a "person legally responsible" for the child's care within the meaning of Family Court Act § 1012(g) (see Matter of Morgan R. [Patricia F.], 183 A.D.3d 746, 121 N.Y.S.3d 876 ).
Contrary to the appellant's contention, the finding of abuse against her was supported by a preponderance of the evidence (see Family Ct Act § 1046[b] ). The petitioner established a prima facie case by presenting medical evidence that the injuries sustained by the child would ordinarily not have been sustained except by reason of an act or omission of a parent or caregiver, and the appellant failed to provide a reasonable and adequate explanation for the child's injuries. The Family Court's assessment of the conflicting expert testimony, which is entitled to deference, is supported by the record, and we decline to disturb its determination (see Matter of Ashlynn R. [Maria R.], 189 A.D.3d 647, 136 N.Y.S.3d 303 ; Matter of Kamryn R. [Natalie R.], 187 A.D.3d 1192, 133 N.Y.S.3d 51 ; Matter of Tyree B. [Christina H.], 160 A.D.3d 1389, 75 N.Y.S.3d 391 ; Matter of Davion E. [Latoya E.], 139 A.D.3d 944, 31 N.Y.S.3d 202 ; Matter of Robert A. [Kelly K.], 109 A.D.3d 611, 971 N.Y.S.2d 12 ; Matter of Kortney C., 3 A.D.3d 532, 770 N.Y.S.2d 758 ).
The appellant's remaining contention is without merit.
AUSTIN, J.P., HINDS–RADIX, BARROS and GENOVESI, JJ., concur.