Heaven C.E. v. Admin. for Children's Servs.
Decision Date | 27 September 2018 |
Docket Number | 7153 |
Citation | 85 N.Y.S.3d 5,164 A.D.3d 1177 |
Parties | In re HEAVEN C.E., and Another, Children Under Eighteen Years of Age, etc., Tiara C., Respondent–Appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Petitioner–Respondent, Maurice D., Respondent. |
Court | New York Supreme Court — Appellate Division |
Larry S. Bachner, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Claire V. Merkine of counsel), attorney for the children.
Renwick, J.P., Gische, Mazzarelli, Kern, Moulton, JJ.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about December 6, 2017, insofar as it determined, after a hearing, that respondent-appellant mother Tiara C. abused and severely abused Heaven C. and derivatively abused and severely abused Joseph C., unanimously affirmed, without costs.
Petitioner satisfied its burden of making an initial prima facie showing of severe abuse ( Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ). Expert testimony established by clear and convincing evidence that then three-year-old Heaven C. suffered from non-accidental injuries, including life-threatening brain trauma
resulting in permanent brain damage, a fractured pelvis, and bruises, burns, and scars on her body. The court properly exercised its discretion in crediting the testimony of the child's treating physician, Doctor O'Hara, a board-certified pediatrician with a certification in child abuse. Doctor O'Hara opined to a reasonable degree of medical certainty that Heaven's brain trauma
was caused by partial strangulation leading to a loss of blood flow, rather than another theory unrelated to abuse, based on the child's presentation of symptoms and constellation of other injuries, which were clearly inflicted.
Further, even assuming that the mother's live-in boyfriend alone inflicted these injuries, the mother remains culpable for permitting the abuse to occur (see Family Court Act § 1012[e][i] ; Matter of Vivienne Bobbi–Hadiya S. [Makena Asanta Malika McK.], 126 A.D.3d 545, 546, 5 N.Y.S.3d 418 [1st Dept. 2015], lv denied 25 N.Y.3d 909, 2015 WL 3555575 [2015] ). Given the nature and severity of the child's injuries, the mother was or should have been aware of the abuse. Moreover, the mother's delay in summoning emergency assistance for almost two hours after Heaven was found comatose further supports the finding of severe abuse (see Matter of Amirah L. [Candice J.] ), 118 A.D.3d 792, 794, 988 N.Y.S.2d 200 [2d Dept. 2014] ).
Having determined that Heaven was severely...
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...the older child's neck at the time of the second incident "supports the finding of severe abuse" ( Matter of Heaven C.E. [Tiara C.] , 164 A.D.3d 1177, 1178, 85 N.Y.S.3d 5 [1st Dept. 2018] ; see Matter of Nyheem E. [Jamila G.] , 134 A.D.3d 517, 518, 23 N.Y.S.3d 9 [1st Dept. 2015] ). On her a......
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...mother had severely abused and neglected one of her older children and derivatively abused another ( Matter of Heaven C.E. [Tiara C.], 164 A.D.3d 1177, 1178, 85 N.Y.S.3d 5 [1st Dept. 2018] ). The conduct underlying the prior order demonstrates that the mother's parental judgment was so flaw......
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