Opinion
2012-10-24
In the Matter of SHADE B. (Anonymous). Administration for Children's Services, respondent; Denzil B. (Anonymous), et al., appellants.
Richard L. Herzfeld, P.C., New York, N.Y., for appellant Denzil B. Rhonda R. Weir, Brooklyn, N.Y., for appellant Sheryl B.
Richard L. Herzfeld, P.C., New York, N.Y., for appellant Denzil B. Rhonda R. Weir, Brooklyn, N.Y., for appellant Sheryl B.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Lisa A. Giunta of counsel), for respondent.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the child.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In a child protective proceeding pursuant to Family Court Act article 10, the father, Denzil B., and the mother, Sheryl B., separately appeal from an order of fact-finding of the Family Court, Kings County (Beckoff, J.), dated April 26, 2011, which, after a hearing, found that they abused and neglected the subject child by permitting a sex offense to be committed against her.
ORDERED that the order of fact-finding is affirmed, without costs or disbursements.
Family Court Act article 10 defines an “abused child” as “a child under the age of 18 whose parent or other person legally responsible for the child's care ‘commits, or allows to be committed, a sex offense against such child’ ” (Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168, quoting Family Ct. Act § 1012[e][iii] ). A prima facie case of child abuse or neglect may be established by evidence of an injury to a child which ordinarily would not occur absent an act or omission of the responsible caretaker ( seeFamily Ct. Act § 1046[a][ii]; Matter of Philip M., 82 N.Y.2d at 243, 604 N.Y.S.2d 40, 624 N.E.2d 168;Matter of Fantaysia L., 36 A.D.3d 813, 814, 828 N.Y.S.2d 497;Matter of Magnolia A., 272 A.D.2d 115, 116, 707 N.Y.S.2d 176). The Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur,” and “once a petitioner in a child abuse case has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability” (Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168;see Matter of Fantaysia L., 36 A.D.3d at 814, 828 N.Y.S.2d 497). However, “the burden of proving child abuse always rests with petitioner” (Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168).
Here, the petitioner sustained its burden of proving by a preponderance of the evidence ( seeFamily Ct. Act § 1046[b][i] ) that the child was abused. The medical evidence presented by the petitioner established that the child, then 4 1/2 years old, contracted gonorrhea while under the care and supervision of the father and mother. “[U]nexplained evidence that a young child suffers from a sexually-transmitted disease suffices to establish a prima facie case of child abuse” (Matter of Magnolia A., 272 A.D.2d at 116, 707 N.Y.S.2d 176;see Matter of Philip M., 82 N.Y.2d at 243, 604 N.Y.S.2d 40, 624 N.E.2d 168;Matter of Lauren B., 200 A.D.2d 740, 740, 607 N.Y.S.2d 77;Matter of P. Children, 172 A.D.2d 839, 569 N.Y.S.2d 205;Matter of Tania J., 147 A.D.2d 252, 259, 543 N.Y.S.2d 47). Expert testimony at the hearing established that a vaginal culture, such as the one performed on the child, was the diagnostic “gold standard” and did not yield false positives. Moreover, during counseling sessions, the child described being touched on her private parts by a “ghost” and identified her father as the one who committed the abuse. According to hearing testimony and clinical notes, the child also became very anxious during one of her sessions, stating that her mother told her she would not be able to go home if she talked about who gave her the “boo-boo” and pointed to her vagina.
Once the petitioner established a prima facie case, the burden shifted to the parents to rebut the evidence of parental culpability ( see Matter of Fantaysia L., 36 A.D.3d at 814, 828 N.Y.S.2d 497;Matter of Lauren B., 200 A.D.2d at 740, 607 N.Y.S.2d 77;Matter of P. Children, 172 A.D.2d at 839, 569 N.Y.S.2d 205). Here, the parents failed to rebut the petitioner's prima facie case of abuse ( see Matter of Fantaysia L., 36 A.D.3d at 814, 828 N.Y.S.2d 497;Matter of Lauren B., 200 A.D.2d at 740, 607 N.Y.S.2d 77).
Likewise, a preponderance of the credible evidence supports a finding that the parents neglected the subject child ( seeFamily Ct. Act § 1012[f][i][B]; Matter of Tristan R., 63 A.D.3d 1075, 1078, 883 N.Y.S.2d 229).
The parents' remaining contentions are either unpreserved for appellate review or without merit.