Opinion
No. 1008 CAF 23-00628
12-22-2023
IN THE MATTER OF LEONARD P. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; PATRICIA M., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT. BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RUSSELL E. FOX OF COUNSEL), ATTORNEY FOR THE CHILD.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.
BENJAMIN E. MANNION, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RUSSELL E. FOX OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND DELCONTE, JJ.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered June 14, 2022, in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondent abused the subject child.
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 mother appeals from orders determining that she abused the child who is the subject of appeal No. 1 (child) and derivatively abused the children who are the subject of appeal Nos. 2 and 3, i.e., the child's siblings. The orders were entered after a fact-finding hearing on abuse petitions filed against the mother and the children's father. We affirm.
We reject the mother's contention in all three appeals that Family Court's determinations lack a sound and substantial basis. 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] respondents, and (2) that [the] respondents were the caretakers of the child at the time the injury occurred" (Matter of Philip M., 82 N.Y.2d 238, 243 [1993]; see Matter of Nancy B., 207 A.D.2d 956, 957 [4th Dept 1994]). Section 1046 (a) (ii) "authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur" (Philip M., 82 N.Y.2d at 244). Although the burden of establishing child abuse rests with the petitioner (see id.; Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1493 [4th Dept 2016], lv denied 28 N.Y.3d 915 [2017]), once the petitioner "has established a prima facie case, the burden of going forward shifts to [the] respondents to rebut the evidence of parental culpability" (Philip M., 82 N.Y.2d at 244; see generally Matter of Devre S. [Carlee C.], 74 A.D.3d 1848, 1849 [4th Dept 2010]).
With respect to appeal No. 1, the court's finding of abuse of the child by the mother is supported by a preponderance of the evidence in the record (see Family Ct Act § 1046 [b] [i]; Matter of Jezekiah R.-A. [Edwin R.-E.], 78 A.D.3d 1550, 1551 [4th Dept 2010]). Two physicians who treated the child testified that the child, who was two months old at the time, sustained a moderately-sized subdural hemorrhage and numerous hemorrhages in the retina of the right eye. They both testified that the injuries to the child were non-accidental and that this was a case of shaken baby syndrome. Thus, petitioner established that the child suffered injuries that "would ordinarily not occur absent an act or omission of [the mother and the father]" (Philip M., 82 N.Y.2d at 243; see Matter of Damien S., 45 A.D.3d 1384, 1384 [4th Dept 2007], lv denied 10 N.Y.3d 701 [2008]). Petitioner further established that the mother and the father "were the caretakers of the child at the time the injur[ies] occurred" (Philip M., 82 N.Y.2d at 243), and the "presumption of culpability extends" to both of them (Matter of Matthew O. [Kenneth O.], 103 A.D.3d 67, 74 [1st Dept 2012]). We conclude that the mother failed to rebut the presumption of culpability (see Matter of Tyree B. [Christina H.], 160 A.D.3d 1389, 1389 [4th Dept 2018]; Damien S., 45 A.D.3d at 1384).
With respect to appeal Nos. 2 and 3, the court's finding of derivative abuse based on evidence that the mother abused the child is supported by a preponderance of the evidence in the record (see Family Ct Act § 1046 [a] [i]; [b] [i]; Matter of Deseante L.R. [Femi R.], 159 A.D.3d 1534, 1536 [4th Dept 2018]). The abuse of the child "is so closely connected with the care [of his siblings] as to indicate that [those children are] equally at risk" (Matter of Marino S., 100 N.Y.2d 361, 374 [2003], cert denied 540 U.S. 1059 [2003]; see Devre S., 74 A.D.3d at 1849). The abuse of the child further "demonstrates such an impaired level of judgment by the [mother] as to create a substantial risk of harm for any child in her care" (Matter of Aaron McC., 65 A.D.3d 1149, 1150 [2d Dept 2009]; see Matter of Wyquanza J. [Lisa J.], 93 A.D.3d 1360, 1361 [4th Dept 2012]).
The mother's further contention in all three appeals that she was denied meaningful representation by her attorney's failure to retain and call a medical witness to rebut the evidence establishing the cause of the child's injuries "is 'impermissibly based on speculation, i.e., that favorable evidence could and should have been offered on [her] behalf'" (Matter of Amodea D. [Jason D.], 112 A.D.3d 1367, 1368 [4th Dept 2013]). In particular, the mother failed to "demonstrate[ ] that there were 'relevant experts who would have been willing to testify in a manner helpful [and favorable] to [her] case[ ]'..., and her speculation that [her attorney] could have found an expert with a contrary, exculpatory medical opinion is insufficient to establish deficient representation" (Matter of Julian P. [Colleen Q.], 129 A.D.3d 1222, 1224-1225 [3d Dept 2015]; see Matter of Brooke T. [Justin T.], 156 A.D.3d 1410, 1412 [4th Dept 2017]). The record establishes that," 'viewed in the totality of the proceedings, [the mother] received meaningful representation'" (Matter of Bentleigh O. [Jacqueline O.], 125 A.D.3d 1402, 1404 [4th Dept 2015], lv denied 25 N.Y.3d 907 [2015]).