Opinion
2020-09074 Docket Nos. N-9745-20, N-9746-20, N-9747-20
11-10-2021
In the MATTER OF CHASE P. (Anonymous). Administration for Children's Services, petitioner-appellant; v. Maureen Q. (Anonymous), et al., respondents-respondents, et al., respondent. In the Matter of Ezara L.Q. (Anonymous). Administration for Children's Services, petitioner; v. Maureen Q. (Anonymous), et al., respondents. In the Matter of Kaiden G.G. (Anonymous). Administration for Children's Services, petitioner-appellant; v. Maureen Q. (Anonymous), et al., respondents-respondents, et al., respondent.
Georgia M. Pestana, Corporation Counsel, New York, NY (Melanie T. West and Jonathan A. Popolow of counsel), for petitioner-appellant. Michael S. Discioarro, New York, NY, for respondent-respondent Maureen Q. Brooklyn Defender Services, Brooklyn, NY (Amy Mulzer and Ashley Mitchell of counsel), for respondent-respondent Antoine Q. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the child Chase P. Colleen E. Zitman, Brooklyn, NY, attorney for the child Kaiden G.G.
Georgia M. Pestana, Corporation Counsel, New York, NY (Melanie T. West and Jonathan A. Popolow of counsel), for petitioner-appellant.
Michael S. Discioarro, New York, NY, for respondent-respondent Maureen Q.
Brooklyn Defender Services, Brooklyn, NY (Amy Mulzer and Ashley Mitchell of counsel), for respondent-respondent Antoine Q.
Janet E. Sabel, New York, NY (Dawne A. Mitchell and Marcia Egger of counsel), attorney for the child Chase P.
Colleen E. Zitman, Brooklyn, NY, attorney for the child Kaiden G.G.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the Administration for Children's Services appeals from an order of the Family Court, Kings County (Jacqueline D. Williams, J.), dated December 3, 2020. The order, after a hearing, granted the application of Maureen Q. and Antoine Q. pursuant to Family Court Act § 1028(a) for the return of the children Chase P. and Kaiden G.G. to their custody. By decision and order on motion dated January 8, 2021, this Court, inter alia, granted that branch of the motion of the Administration for Children's Services which was for a stay of enforcement of the order pending hearing and determination of the appeal.
ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, and the application of Maureen Q. and Antoine Q. pursuant to Family Court Act § 1028(a) for the return of the children Chase P. and Kaiden G.G. to their custody is denied.
Maureen Q. (hereinafter the mother) is the mother of the children Chase P., Ezara L. Q., and Kaiden G.G. (hereinafter collectively the subject children). Antoine Q. (hereinafter the father) is the father of Ezara and the stepfather of Chase and Kaiden. The petitioner commenced these related proceedings pursuant to Family Court Act article 10 against, among others, the mother and the father (hereinafter together the parents), alleging in three separate petitions, inter alia, that the parents abused Ezara, and abused Chase and Kaiden because they demonstrated a flawed understanding of parental duties and impaired judgment. After commencing these proceedings, the petitioner temporarily removed the subject children from the parents’ home. The parents made an application pursuant to Family Court Act § 1028(a) for the return of Chase and Kaiden to their custody. After a hearing, the Family Court granted the application. The petitioner appeals.
"An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child's life or health’ " ( Matter of Audrey L. [Marina L.], 147 A.D.3d 838, 839, 47 N.Y.S.3d 78, quoting Family Ct Act § 1028[a] ). "The court's determination will not be disturbed if it is supported by a sound and substantial basis in the record" ( Matter of Tatih E. [Keisha T.], 168 A.D.3d 935, 935, 92 N.Y.S.3d 352 ; see Matter of Esscence R. [Ebony B.R.], 158 A.D.3d 806, 806, 68 N.Y.S.3d 890 ; Matter of Julissia B. [Navasia J.], 128 A.D.3d 690, 691, 7 N.Y.S.3d 596 ). In making its determination, the court "must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Romeo O. [Sita P.-M.], 163 A.D.3d 574, 575, 81 N.Y.S.3d 87 ). The court "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" ( Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Romeo O. [Sita P.-M.], 163 A.D.3d at 575, 81 N.Y.S.3d 87 ). "Evidence that the children who are the subject of the proceeding were previously harmed while in the parent's care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent's care" ( Matter of Rosy S., 54 A.D.3d 377, 378, 863 N.Y.S.2d 65 ; see Matter of Nyomi P. [Imeisa P.], 189 A.D.3d 843, 843, 133 N.Y.S.3d 479 ; Matter of Carter R. [Camesha B.], 184 A.D.3d 575, 576, 122 N.Y.S.3d 906 ; Matter of Tatih E. [Keisha T.], 168 A.D.3d at 936, 92 N.Y.S.3d 352 ). "The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody" ( Matter of Carter R. [Camesha B.], 184 A.D.3d at 576, 122 N.Y.S.3d 906 ).
Family Court Act § 1046(a)(ii) "provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred" ( Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; see Family Ct Act § 1046[a][ii] ; Matter of Kamryn R. [Natalie R.], 187 A.D.3d 1192, 1194, 133 N.Y.S.3d 51 ). Family Court Act § 1046(a)(ii) "authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur" ( Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ). "[Once] the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of ... culpability, although the burden of proof always remains with the petitioner" ( Matter of Unity T. [Dennis T.], 166 A.D.3d 629, 632, 87 N.Y.S.3d 330 [internal quotation marks omitted]; see Matter of Kamryn R. [Natalie R.], 187 A.D.3d at 1194, 133 N.Y.S.3d 51 ).
Here, the Family Court's determination to grant the parents’ application for the return of Chase and Kaiden lacked a sound and substantial basis in the record (see Matter of Nicholas O. [Jenny F.], 185 A.D.3d 587, 588, 125 N.Y.S.3d 138 ; Matter of Carter R. [Camesha B.], 184 A.D.3d at 576, 122 N.Y.S.3d 906 ; Matter of Tatih E. [Keisha T.], 168 A.D.3d at 936, 92 N.Y.S.3d 352 ; Matter of Julissia B. [Navasia J.], 128 A.D.3d at 691, 7 N.Y.S.3d 596 ; Matter of Alexi R.C. [Monica D.], 109 A.D.3d 819, 821, 971 N.Y.S.2d 164 ; Matter of Jacob P., 37 A.D.3d 836, 837–838, 831 N.Y.S.2d 252 ). The petitioner established a prima facie case of child abuse against the parents by presenting evidence that injuries Ezara sustained would not ordinarily occur absent an act or omission of the caregiver, and that the parents were the caregivers of Ezara during the relevant time period (see Matter of Kamryn R. [Natalie R.], 187 A.D.3d at 1194, 831 N.Y.S.2d 252; Matter of Davion E. [Latoya E.], 139 A.D.3d 944, 946, 31 N.Y.S.3d 202 ; Matter of Robert A. [Kelly K.], 109 A.D.3d 611, 612–613, 971 N.Y.S.2d 12 ; Matter of Jacob B. [Rachel B.], 77 A.D.3d 936, 936, 909 N.Y.S.2d 755 ). Specifically, the petitioner's expert in child abuse pediatrics testified that the then two-month-old Ezara had multiple rib fractures, which appeared to have been sustained at different times, as well as fractures in his legs and a laceration of his spleen, and further testified within a reasonable degree of medical certainty that these injuries were caused by non-accidental trauma. The parents failed to rebut the presumption of culpability with a reasonable and adequate explanation for Ezara's injuries (see Matter of Kamryn R. [Natalie R.], 187 A.D.3d at 1194, 133 N.Y.S.3d 51 ; Matter of Angelica A. [Jasmin H.], 126 A.D.3d 965, 966, 6 N.Y.S.3d 113 ). Further, the petitioner established that the parents demonstrated such an impaired level of parental judgment with respect to Ezara so as to create a substantial risk of harm to any child in their care (see Matter of Nicholas O. [Jenny F.], 185 A.D.3d at 588, 125 N.Y.S.3d 138 ; Matter of Carter R. [Camesha B.], 184 A.D.3d at 576–577, 122 N.Y.S.3d 906 ; Matter of Jazmine P. [Shay S.P.-T.], 173 A.D.3d 1033, 1034, 100 N.Y.S.3d 570 ; Matter of Tatih E. [Keisha T.], 168 A.D.3d at 936, 92 N.Y.S.3d 352 ). Under the circumstances of this case, this risk could not be mitigated by the conditions imposed by the court (see Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; Matter of Nicholas O. [Jenny F.], 185 A.D.3d at 589, 125 N.Y.S.3d 138 ; Matter of Carter R. [Camesha B.], 184 A.D.3d at 577, 122 N.Y.S.3d 906 ; Matter of Tatih E. [Keisha T.], 168 A.D.3d at 936, 92 N.Y.S.3d 352 ; Matter of Julissia B. [Navasia J.], 128 A.D.3d at 692, 7 N.Y.S.3d 596 ; Matter of Serenity S. [Tyesha A.], 89 A.D.3d 737, 739, 931 N.Y.S.2d 693 ). Accordingly, the parents’ application for the return of Chase and Kaiden should have been denied.
MASTRO, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.