In re Lucien HH.

• Decision Date: 22 November 2017
• Citation: 65 N.Y.S.3d 291,155 A.D.3d 1347
• Parties: In the Matter of LUCIEN HH. and Another, Alleged to be Abused and/or Neglected Children. Otsego County Department of Social Services, Respondent; Michelle PP., Appellant. (And Another Related Proceeding.).
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1347

65 N.Y.S.3d 291

In the Matter of LUCIEN HH. and Another, Alleged to be Abused and/or Neglected Children. Otsego County Department of Social Services, Respondent; Michelle PP., Appellant. (And Another Related Proceeding.).

Supreme Court, Appellate Division, Third Department, New York.

Nov. 22, 2017.

Teresa C. Mulliken, Harpersfield, for appellant.

Susan M. Lettis, Otsego County Department of Social Services, Cooperstown, for respondent.

William L. Koslosky, Utica, attorney for the child.

Dennis B. Laughlin, Cherry Valley, attorney for the child.

Before: EGAN JR., J.P., DEVINE, CLARK, MULVEY and RUMSEY, JJ.

CLARK, J.

Appeals (1) from two orders of the Family Court of Otsego County (Lambert, J.), entered April 21, 2016 and June 3, 2016, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject children to be abused and/ or neglected, and (2) from six orders of protection entered thereon.

At all relevant times, respondent and Benjamin HH. (hereinafter the father) lived together with their four-month-old son, Lucien HH. (born in 2015), and respondent's four-year-old son from a prior relationship, Anthony II. (born in 2010). On August 24, 2015, respondent and the father brought the younger child to see his pediatrician to address redness and swelling of the child's right leg. Upon determining that there were signs of nonaccidental trauma, the pediatrician made a hotline report to Child Protective Services and admitted the younger child to the hospital for further evaluation and treatment. A subsequent skeletal survey and examination by an orthopedic surgeon revealed that the younger child had sustained an acute fracture to his right ankle and that there were prior fractures to his left ulna, left humerus and left femur, which were in the process of healing. The children were, upon consent, placed in petitioner's care, and petitioner thereafter commenced this Family Ct. Act article 10 proceeding alleging that respondent had abused and neglected the younger child and neglected the older child.¹ Upon a further agreement among the parties, Family Court ordered that the children continue in the care and custody of petitioner. Following a fact-finding hearing, Family Court concluded that respondent abused the younger child and derivatively neglected the older child and, after a dispositional hearing, ordered the children to remain in petitioner's care and custody and entered orders of protection restricting respondent to supervised visitation with the children. Respondent now appeals, challenging the sufficiency of the evidence upon which Family Court based its findings.²

Pursuant to Family Ct. Act § 1046(a)(ii), a prima facie case of child abuse or neglect may be established through evidence that the child sustained an injury that would ordinarily not occur absent an act or omission of the respondent, and that the respondent was the caretaker of the child at the time that the injury occurred (see Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ; Matter of Miranda HH. [Thomas HH.], 80 A.D.3d 896, 897, 914 N.Y.S.2d 760 [2011] ; Matter of Ashley RR., 30 A.D.3d 699, 700, 816 N.Y.S.2d 580 [2006] ). If the petitioner makes out a prima facie case, "the burden of going forward shifts to [the] respondent[ ] 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 Brayden UU. [Amanda UU.], 116 A.D.3d 1179, 1180, 984 N.Y.S.2d 434 [2014] ; Matter of Jordan XX., 53 A.D.3d 740, 740–741, 861 N.Y.S.2d 189 [2008] ), although the petitioner retains the ultimate burden of establishing abuse and neglect by a preponderance of the evidence (see Family Ct. Act § 1046[b][i] ; Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; Matter of Jaiden T.G. [Shavonna D.–F.], 89 A.D.3d 1021, 1022, 934 N.Y.S.2d 420 [2011] ; Matter of Seamus K., 33 A.D.3d 1030, 1031, 822 N.Y.S.2d 168 [2006] ). "Although generally referred to as a presumption, this method of proof does not create a true presumption; it creates a permissible inference which the factfinder may draw, but does not compel a finding in accordance with that inference" ( Matter of Ashley RR., 30 A.D.3d at 700, 816 N.Y.S.2d 580 [citations omitted]; see Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ). Indeed, even if the petitioner presents a prima facie case of abuse and neglect, Family Court must weigh all of the evidence before making a determination (see

Matter of Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168 ; Matter of Ashley RR., 30 A.D.3d at 700, 816 N.Y.S.2d 580 ).

The orthopedic surgeon who examined the younger child and reviewed the skeletal survey testified that the acute ankle fracture occurred roughly 48 to 72 hours before the child presented at his pediatrician's office, and that the fractures to his left ulna, humerus and femur occurred at the same time, which was at least three weeks prior to the ankle fracture. The testimony of the orthopedic surgeon, as well as another physician who examined the younger child at the hospital, established that the fractures could not have been self-inflicted or caused by the older child and that the younger child did not have a bone disease that could explain the fractures. Both the orthopedic surgeon and the physician testified that multiple fractures do not ordinarily occur in infants absent trauma, and the orthopedic surgeon opined that, because the fractures were at different stages of healing, the younger child was a victim of child abuse. Furthermore, the evidence, including respondent's own statements to the police and a Child Protective Services caseworker, demonstrated that respondent and the father were the children's sole caretakers. Together, this evidence established that the fracture to the younger child's right ankle, as well as the earlier fractures, were the types of injuries that would not ordinarily be sustained by an infant absent an act or omission on the part of respondent and/or the father (see Matter of Seamus K., 33 A.D.3d at 1032, 822 N.Y.S.2d 168 ; Matter of Robert YY., 199 A.D.2d 690, 691, 605 N.Y.S.2d 418 [1993] ).

Petitioner's proof also demonstrated that the father admitted to the police that he may have caused one of the injuries by grabbing, pulling and twisting the younger child's leg when he dragged the child towards him on the couch and that he had engaged in similar behavior on eight or nine prior occasions when caring for the child.³ Given these admissions, respondent could only be held accountable for abuse or neglect if "she ‘knew or should reasonably have known’ " that she was placing the younger child in danger by leaving him in the care of the father ( Matter of Robert YY., 199 A.D.2d at 692, 605 N.Y.S.2d 418, quoting Matter of Sara X., 122 A.D.2d 795, 796, 505 N.Y.S.2d 681 [1986], appeal dismissed 69 N.Y.2d 707, 512 N.Y.S.2d 1032, 504 N.E.2d 400 [1986] ). In other words, where, as here, the petitioner seeks a finding of abuse or neglect against the respondent based upon the acts or omissions of another parent or caretaker, such a finding hinges on whether " ‘it can be determined, on the basis of objective evidence, that a reasonably prudent parent would have acted differently and, in so doing, prevented the injury’ " ( Matter of Joseph DD., 214 A.D.2d 794, 795, 624 N.Y.S.2d 476 [1995], quoting Matter of Robert YY., 199 A.D.2d at 692, 605 N.Y.S.2d 418 ). Under these circumstances, a finding of abuse requires evidence that the respondent "allow[ed]" physical injury to be inflicted upon a child "by other than accidental means" ( Family Ct. Act § 1012[e][i] ) or "create[d] or allow[ed] to be created a substantial risk of physical injury to [the] child by other than accidental means" ( Family Ct. Act § 1012[e][ii] ), and a finding of neglect requires proof that the respondent failed "to exercise a minimum degree of care ... in providing the child with proper supervision ... by unreasonably ... allowing to be inflicted harm, or a substantial risk thereof" ( Family Ct. Act § 1012[f][i][B] ).

Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child's leg on August 23, 2015, she had not noticed anything unusual or concerning with respect to the younger child. While petitioner admitted into evidence several text messages in which the father expressed frustration with the children, respondent stated to the investigating caseworker that she simply thought that the father was frustrated and that he would calm down.⁴ Respondent testified that the father never indicated to her that he had physically injured the younger child or that his frustration was at such a level that he might physically hurt the child. According to the caseworker, respondent...