Opinion
06-25-2024
In the MATTER OF L.V., a Child Under Eighteen Years of Age, etc., L.J., Respondent-Appellant, v. J.V., Respondent, New York City Administration for Children’s Services, Petitioner-Respondent.
Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for appellant. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jonathan Schoepp-Wong of counsel), for respondent. Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for appellant.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Jonathan Schoepp-Wong of counsel), for respondent.
Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Kern, J.P., Singh, Scarpulla, Pitt-Burke, Higgitt, JJ.
Order, Family Court, New York County (Valerie A. Pels, J.), entered on or about December 22, 2022, which, after a hearing, found that respondent mother abused the subject child, unanimously affirmed, without costs.
[1] Petitioner made prima facie showing of abuse by introducing expert medical testimony establishing that the child suffered a fracture of the humerus, and that his injury was the result of nonaccidental trauma that would ordinarily not be sustained by a five-month-old child except by reason of the acts or omissions of the mother (see Matter of Philip M, 82 N.Y.2d 238, 243-244, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993]).
[2] The burden having shifted, the mother failed to rebut the presumption of culpability with a credible and reasonable explanation of how the child suffered the fracture to his humerus, or otherwise demonstrate that she was not guilty of abuse (see Matter of Ni’Kia C. [Dominque J.], 118 A.D.3d 515, 516, 988 N.Y.S.2d 35 [1st Dept. 2014]). In petitioner’s expert’s medical opinion, the mother’s purported explanation of "play-walking" with the child, dangling him by his wrists and moving him forward, briefly, could not have resulted in a fracture of the humerus bone. The mother’s medical expert did not dispute petitioner’s expert’s opinion. The mother’s medical expert posited that the fracture would have occurred from the child falling or something falling on the child, however the mother did not testify that the child was injured by falling or by a falling object and there is no other evidence to support a finding that this is how the injury occurred.
Contrary to the mother’s arguments, both medical experts also ruled out the possibility that the child’s humerus fracture could have resulted from the urgent care physician's attempt to perform a reduction maneuver on the child’s elbow. Nor was petitioner required to establish that there is no possible accidental explanation for the injury (see Matter of Kortney C., 3 A.D.3d 532, 532-533, 770 N.Y.S.2d 758 [2d Dept. 2004]).
[3] The mother’s focus on the time the child spent at the maternal grandmother’s home does not avail her. The record supports the court’s finding that the mother remained a caretaker of the child at the time of injury (see Matter of Travis S. [Moezel J. — Taijon S.], 203 A.D.3d 478, 479, 163 N.Y.S.3d 75 [1st Dept. 2022]). Nor must all caretakers be named as respondents in an abuse action (see Matter of Grayson R.V. [Jessica D. - David P.], 200 A.D.3d 1646, 1648, 160 N.Y.S.3d 514 [4th Dept. 2021]).
Further, we defer to the court’s credibility findings (see Matter of Sam B., 41 A.D.3d 170, 171, 838 N.Y.S.2d 49 [1st Dept. 2007]).
We have considered the mother’s remaining arguments and find them unavailing.