Admin. for Children's Servs.v.Arlenie G. (In re Aliyah G.)

Supreme Court, Appellate Division, Second Department, New York.May 1, 2012
942 N.Y.S.2d 903 (N.Y. App. Div. 2012)
942 N.Y.S.2d 90395 A.D.3d 8852012 N.Y. Slip Op. 3447

2012-05-1

In the Matter of ALIYAH G. (Anonymous).Administration for Children's Services, appellant;Arlenie G. (Anonymous), et al., respondents. (Proceeding No. 1)In the Matter of Ishmael G. (Anonymous), Jr.Administration for Children's Services, appellant;Arlenie G. (Anonymous), et al., respondents. (Proceeding No. 2)

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for appellant. Lauren Shapiro, Brooklyn, N.Y., and Dewey & LeBoeuf LLP, New York, N.Y. (John M. Aerni, Hugh D. Sandler, Nathan R. Jones, and Jessica Marcus of counsel), for respondent Arlenie G.


Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel), for appellant. Lauren Shapiro, Brooklyn, N.Y., and Dewey & LeBoeuf LLP, New York, N.Y. (John M. Aerni, Hugh D. Sandler, Nathan R. Jones, and Jessica Marcus of counsel), for respondent Arlenie G.

Yisroel Schulman, New York, N.Y. (Christina Brandt–Young of counsel), for respondent Ishmael G., Sr.Steven Banks, New York, N.Y. (Tamara Steckler and Claire V. Merkine of counsel), attorney for the children.

In related child abuse and neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County (Danoff, J.), dated May 13, 2011, which, upon a decision of the same court, also dated May 13, 2011, made after a fact-finding hearing, dismissed the petitions.

ORDERED that on the Court's own motion, the notice of appeal from the decision is deemed to be a notice of appeal from the order dated May 13, 2011 ( see CPLR 5512[a] ); and it is further,

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are reinstated, it is found that the respondents, Arlenie G. and Ishmael G., Sr., abused and neglected the child Aliyah G., and derivatively abused and neglected the child Ishmael G., Jr., and the matter is remitted to the Family Court, Kings County, for a dispositional hearing in accordance herewith and a disposition thereafter.

Article 10 of the Family Court Act 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’ ” (*904 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 ( see Family 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, contrary to the Family Court's determination, the petitioner sustained its burden of proof by a preponderance of the evidence ( see Family Ct. Act § 1046[b][i] ) that the child Aliyah G. was an abused child. The medical evidence presented by the petitioner established that Aliyah G., then three years old, had contracted gonorrhea while under the care and supervision of the respondents. “[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).

Once the petitioner established a prima facie case, the burden shifted to the respondents 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). The respondents 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).

Further, a preponderance of the credible evidence supports a finding that the respondents neglected Aliyah G. ( see Family Ct. Act § 1012[f][i][B]; Matter of Tristan R., 63 A.D.3d 1075, 1078, 883 N.Y.S.2d 229). Finally, the proof of abuse and neglect by the respondents of Aliyah G. was sufficient to establish that the respondents derivatively abused and neglected the child's sibling, Ishmael G., Jr. ( see Family Ct. Act § 1046[a][i]; Matter of Tristan R., 63 A.D.3d at 1078, 883 N.Y.S.2d 229; Matter of Astrid C., 43 A.D.3d 819, 821, 841 N.Y.S.2d 356; Matter of Kristina R., 21 A.D.3d 560, 562, 800 N.Y.S.2d 454).

Accordingly, we reinstate the petitions and remit the matter to the Family Court, Kings County, for a dispositional hearing and a disposition thereafter.

RIVERA, J.P., CHAMBERS, ROMAN and MILLER, JJ., concur.