Opinion
12-23-2016
In the Matter of CHARITY M., Kordell S., Temperance M. and Kyra T. Erie County Department of Social Services, Petitioner–Respondent; Warren M., Respondent–Appellant. (Appeal No. 2.).
David J. Pajak, Alden, for Respondent–Appellant. Kimberly S. Conidi, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for The Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
David J. Pajak, Alden, for Respondent–Appellant.
Kimberly S. Conidi, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for The Children, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Respondent father appeals from an order in these proceedings pursuant to Family Court Act article 10 in which Family Court found, inter alia, that he abused Kordell S., one of the subject children, and derivatively abused the remaining subject children. We conclude that the evidence is sufficient to sustain a finding of abuse with respect to Kordell. Medical testimony of a child abuse physician established that Kordell sustained second-degree burns on his back, left lateral side and left upper arm, in a pattern that did not fit any of the histories that were given and was inconsistent with Kordell inflicting the burns on himself. The physician repeatedly testified that she believed that the burns were intentionally inflicted. It is undisputed on appeal that the father was the sole caregiver for Kordell at the time he sustained those burns. Thus, we conclude that " petitioner established a prima facie case of child abuse with respect to [Kordell,] and [the father] failed to rebut the presumption that [he] was culpable" (Matter of Alyssa C.M., 17 A.D.3d 1023, 1024, 794 N.Y.S.2d 224, lv. denied 5 N.Y.3d 706, 801 N.Y.S.2d 799, 835 N.E.2d 659 ).
Moreover, contrary to the father's contention, Kordell's statements that the father burned him were sufficiently corroborated by both the medical testimony and the child protective caseworker's observation of his injuries (see Matter of Ishanellys O. [Luis A.O.], 129 A.D.3d 1450, 1451–1452, 10 N.Y.S.3d 765 ; Matter of Nicholas L., 50 A.D.3d 1141, 1142, 857 N.Y.S.2d 629 ). To the extent that the father contends that Kordell's statements were consistent with his own description of the incident, we note that the court specifically found that the father's statements appeared to be internally inconsistent and were not corroborated by the medical testimony. We conclude that "[t]here is no basis to disturb the court's credibility determinations with respect to the [father's] varying accounts of the occurrence, [or] the court's decision to credit petitioner's expert over [the father]. It is well settled that ‘the court's determination regarding credibility of the witnesses is entitled to great weight on appeal’ " (Matter of Amire B. [Selika B.], 95 A.D.3d 632, 632, 945 N.Y.S.2d 17, lv. denied 20 N.Y.3d 855, 2013 WL 68997 ; see generally Matter of Isobella A. [Anna W.], 136 A.D.3d 1317, 1319, 25 N.Y.S.3d 465 ).
The court properly determined that the father's abuse of Kordell established his derivative abuse of the other subject children (see Matter of Michael U. [Marcus U.], 110 A.D.3d 821, 822, 973 N.Y.S.2d 676 ). We conclude both that petitioner established that the father had "a fundamental defect in [his] understanding of the duties of parenthood, and [a] lack of self-control [that] created a substantial risk of harm to any child in his care" (id. ), and that "the abuse ... of [Kordell] ‘is so closely connected with the care of [the other children] as to indicate that [they are] equally at risk’ " (Matter of Wyquanza J. [Lisa J.], 93 A.D.3d 1360, 1361, 940 N.Y.S.2d 514 ).
Lastly, we agree with petitioner and the Attorney for the Children that the father's challenges to the dispositional provisions of the order are not properly before this Court because no appeal lies from that part of an order entered on consent (see Matter of Holly B. [Scott B.], 117 A.D.3d 1592, 1592, 985 N.Y.S.2d 818 ).
It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.