Opinion
2012-03-13
In re JOEL O., and Another, Dependant Children Under the Age of Eighteen Years, etc., Administration for Children's Services, Petitioner–Respondent,Yvonne O., et al., Respondents–Appellants.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for Yvonne O., appellant. Patricia W. Jellen, Eastchester, for Alberto T., appellant.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for Yvonne O., appellant. Patricia W. Jellen, Eastchester, for Alberto T., appellant. Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), attorney for the children.TOM, J.P., SAXE, ACOSTA, DeGRASSE, ROMÁN, JJ.
Order of fact-finding and disposition, Family Court, Bronx County (Jane Pearl, J.), entered on or about December 1, 2010, which, upon fact-findings that respondents neglected the child Kenneth O. and derivatively neglected the child Joel O., placed the children in the custody of the Commissioner of Social Services until the completion of the next permanency hearing, unanimously affirmed, without costs.
The finding of neglect is supported by a preponderance of the evidence that the younger child, who is autistic, suffered injuries that would ordinarily not occur absent acts or omissions of respondents, his caretakers ( Matter of Philip M., 82 N.Y.2d 238, 243–244, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ). The doctor who examined the child at the hospital testified that the child's injuries, which included multiple bruises on his body and a bruised lip, were not accidental and could not have been caused by adults trying to lift him off the ground, as the mother's boyfriend claimed. Respondents' explanation that the child was injured in school was not supported by any evidence. Indeed, the school psychologist denied that the child was ever lifted off the ground, and she noted that respondent mother had never complained about the child's treatment at the school, which he had attended for over two years, until shortly before he left.
The court was permitted to draw an adverse inference against the mother based on her failure to testify ( see Matter of Commissioner of Social Servs. v. Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 450 N.E.2d 681 [1983] ). In addition, the record shows that the mother's boyfriend, who resided with the mother and children during the relevant time and was an active participant in the children's lives, was a person legally responsible for the children within the meaning of Family Court Act § 1012(g) ( see Matter of Samantha M., 56 A.D.3d 299, 300–301, 867 N.Y.S.2d 406 [2008], lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009] ).
The evidence supporting neglect of the younger child also supported the finding of derivative neglect of the older child ( see Matter of Samantha M., 56 A.D.3d 299, 301, 867 N.Y.S.2d 406 [2008], lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009]; Family Court Act § 1046[a][i] ).
We have considered respondents' remaining contentions and find them unavailing.