Opinion
2013-10791 (Docket Nos. N-5895-12, N-5896-12, N-5897-12, N-5898-12)
03-25-2015
In the Matter of ANGELICA A. (Anonymous). Orange County Department of Social Services, respondent; Jasmin H. (Anonymous), et al., appellants. (Proceeding No. 1) In the Matter of Kevin P. (Anonymous), Jr. Orange County Department of Social Services, respondent; Jasmin H. (Anonymous), et al., appellants. (Proceeding No. 2).
Michael D. Meth, Chester, N.Y., for appellant Jasmin H. Joseph J. Artrip, Cornwall, N.Y., for appellant Kevin P., Sr. Langdon C. Chapman, County Attorney, Goshen, N.Y. (Christine Foy Stage and Peter R. Schwarz of counsel), for respondent. Helene M. Greenberg, Elmsford, N.Y., attorney for the children.
Michael D. Meth, Chester, N.Y., for appellant Jasmin H.
Joseph J. Artrip, Cornwall, N.Y., for appellant Kevin P., Sr.
Langdon C. Chapman, County Attorney, Goshen, N.Y. (Christine Foy Stage and Peter R. Schwarz of counsel), for respondent.
Helene M. Greenberg, Elmsford, N.Y., attorney for the children.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion Appeals from an order of fact-finding of the Family Court, Orange County (Lori Currier Woods, J.), dated October 21, 2013. The order, after a hearing, determined that Jasmin H. and Kevin P., Sr., abused the child Angelica A. and neglected the child Kevin P., Jr.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
The Family Court Act defines an abused child, inter alia, as a child whose parent, or other person legally responsible for his or her care, “(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of ... protracted impairment of physical or emotional health” or “(ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause ... protracted impairment of physical or emotional health” (Family Ct. Act § 1012[e][i], [ii] ). The petitioner may establish a prima facie case of abuse through a method of proof “closely analogous to the negligence rule of res ipsa loquitur” (Matter of Philip M., 82 N.Y.2d 238, 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; see Family Ct. Act § 1046[a][ii] ; Matter of Stephen Daniel A. [Sandra M.], 122 A.D.3d 834, 996 N.Y.S.2d 349 ; Matter of David T.-C. [Denise C.], 110 A.D.3d 1084, 974 N.Y.S.2d 506 ; Matter of Jaiden T.G. [Shavonna D.-F.], 89 A.D.3d 1021, 934 N.Y.S.2d 420 ; Matter of Fantaysia L., 36 A.D.3d 813, 814, 828 N.Y.S.2d 497 ). If the petitioner establishes a prima facie case of abuse, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability,” although the burden of proof always remains with the petitioner (Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; see Matter of Aliyah G. [Arlenie G.], 95 A.D.3d 885, 942 N.Y.S.2d 903 ; Matter of Fantaysia L., 36 A.D.3d at 814, 828 N.Y.S.2d 497 ).
The record of the fact-finding hearing supports the Family Court's determination that Jasmin H. and Kevin P., Sr. (hereinafter together the appellants), abused Angelica A. A medical expert testified at the hearing that the explanations the appellants gave for Angelica's injuries were inconsistent with those injuries, and that there was no explanation for Angelica's various injuries other than abuse. The court credited this testimony, and did not credit the explanations offered at the hearing by the appellants. The hearing court's assessment of the witnesses' credibility is entitled to great weight on appeal, and will not be disturbed unless clearly unsupported by the record (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 ; Matter of Candacy C. [Clairmonte C.], 96 A.D.3d 836, 946 N.Y.S.2d 250 ; Matter of Arianna L., 55 A.D.3d 733, 866 N.Y.S.2d 263 ). Here, the court's credibility determinations are supported by the record.
The record of the hearing also supports the Family Court's determination that the appellants neglected the infant Kevin P., Jr., by failing to exercise a minimum degree of care “in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (Family Ct. Act § 1012[f][i] [B] ). While the appellants and a caseworker offered differing versions of what happened when the caseworker attempted to remove the children from the appellants' custody, the court's decision to credit the caseworker's testimony is supported by the record (see Matter of Kyanna T. [Winston R.], 99 A.D.3d 1011, 1013, 953 N.Y.S.2d 121 ).