Opinion
02-02-2024
In the MATTER OF LEO M. Erie County Department of Social Services, Petitioner-Respondent; v. Alicia M., Respondent-Appellant. (Appeal No. 2.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. SAM FADUSKI, BUFFALO, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Erie County (Kelly A. Brinkworth, J.), entered April 8, 2022, in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent had abused the subject child.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
SAM FADUSKI, BUFFALO, FOR PETITIONER-RESPONDENT.
EVELYNE A. O’SULLIVAN, EAST AMHERST, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act article 10, respondent appeals, in appeal Nos. 1 and 2, from two orders of fact-finding and disposition. In appeal No. 2, respondent appeals from an order that, inter alia, determined that she abused her grandson. In appeal No. 1, respondent appeals from an order that, inter alia, determined that she neglected her four minor children.
[1, 2] Contrary to the contention of respondent in appeal No. 2, we conclude that petitioner established a prima facie case of abuse against her with respect to the grandson (see Matter of Damien S., 45 A.D.3d 1384, 1384, 844 N.Y.S.2d 790 [4th Dept. 2007], lv denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008]; see generally Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993]). 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 [the] respondent[ ], and (2) that [the] respondent[ was a] caretaker[ ] of the child at the time the injury occurred" (Philip M., 82 N.Y.2d at 243, 604 N.Y.S.2d 40, 624 N.E.2d 168; see Matter of Grayson R.V. [Jessica D.] [appeal No. 2], 200 A.D.3d 1646, 1648, 160 N.Y.S.3d 514 [4th Dept. 2021], lv denied 38 N.Y.3d 909, 2022 WL 2126520, 2022 WL 2126963, 2022 WL 2127772 [2022]). Here, there is.no dispute that the grandson’s injuries, which included fractured ribs and a lacerated liver, were non-accidental and would not have occurred in the absence of abuse. Moreover, petitioner established that the grandson had been in respondent’s, care for the four to five days prior to the onset of severe symptoms requiring his hospitalization, and that the injuries were sustained during a time span including those four to five days within which respondent and the grandson’s mother were his only caretakers (see Philip M., 82 N.Y.2d at 243, 604 N.Y.S.2d 40, 624 N.E.2d 168; Matter of Avianna M.-G. [Stephen G.], 167 A.D.3d 1523, 1523-1524, 91 N.Y.S.3d. 641 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941798 [2019]; See also Matter of Nancy B., 207 A.D.2d 956, 957, 617 N.Y.S.2d 83 [4th Dept. 1994]).
[3] Inasmuch as petitioner "established a prima facie case, the burden of going forward shift[ed] to respondent to rebut the evidence of [caretaker] culpability" (Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168; see generally Matter of Devre S. [Carlee C.], 74 A.D.3d 1848, 1849, 902 N.Y.S.2d 739 [4th Dept. 2010]). We reject respondent’s contention that she rebutted the evidence of her culpability; Respondent "fail[ed] to offer any explanation for the child’s injuries" and simply denied inflicting them (Philip M., 82 N.Y.2d at 246, 604 N.Y.S.2d 40, 624 N.E.2d 168; see Matter of Tyree B. [Christina H.], 160 A.D.3d 1389, 1389-1390, 75 N.Y.S.3d 391 [4th Dept. 2018]; Damien S., 45 A.D.3d at 1384, 844 N.Y.S.2d 790). We therefore affirm the order in appeal No. 2.
[4] With respect to the order in appeal No. 1, respondent has not raised any contentions concerning that order in her main brief on appeal, and we thus dismiss that appeal as abandoned (see Matter of Dagan B. [Calla B.] [appeal No. 3], 192 A.D.3d 1458, 1458-1459, 143 N.Y.S.3d 758 [4th Dept. 2021], appeal dismissed 37 N.Y.3d 977, 151 N.Y.S.3d 662, 173 N.E.3d 785 [2021]; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984; 609 N.Y.S.2d 745 [4th Dept. 1994]).