Tonita R., Matter of
| Decision Date | 03 March 1980 |
| Citation | 74 A.D.2d 830,425 N.Y.S.2d 172 |
| Parties | In the Matter of TONITA R (anonymous). Gladys R. BURLEIGH, Deputy Commissioner of Orange County Department of Social Services, Appellant, v. MILAGROS R (anonymous), Respondent. |
| Court | New York Supreme Court — Appellate Division |
James G. Sweeney, County Atty., Goshen (Michael B. Heckman, of counsel), for appellant.
Before MANGANO, J. P., and COHALAN, MARTUSCELLO and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to article 10 of the Family Court Act for an adjudication of child abuse, petitioner appeals from an order of the Family Court, Orange County (MURPHY, J.), dated November 8, 1978, which, after a hearing, dismissed the petition.
Order reversed, on the law and the facts, without costs or disbursements, petition granted, and it is determined that the infant is an abused child. The matter is remanded to the Family Court, Orange County, for further proceedings consistent herewith.
The record contains evidence of at least four instances in which caseworkers observed bruises or welts on the child's ankles, hands and on other parts of her body. Upon questioning, the now seven-year-old child either attributed the injuries to her mother, remained silent, or remarked that "mommy says not to tell." An examination of the testimony of respondent's sole witness, a caseworker employed by Family Counselling Services in Newburgh, supports the contention that respondent has supplied no explanation for the injuries and has thus failed to carry her burden of rebutting petitioner's prima facie showing of child abuse (see Family Ct.Act, § 1046, subd. (a), par. (ii); see, also, Matter of Tashyne L., 53 A.D.2d 629, 384 N.Y.S.2d 472). Accordingly, the petition should have been granted.
We note additionally that the hearing court erred by admitting into evidence an unsigned and undated report of a doctor's examination of the child. The report constituted inadmissible hearsay and has not been shown to satisfy the business exception requirements of section 1046 (subd. (a), par. (iv)) of the Family Court Act. It should therefore not have been admitted pursuant to section 1046 (subd. (b), par. (ii)) of the Family Court Act.
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Michael G, Matter of
... ... Bronx Cty.1983), Matter of Linda O., 95 Misc.2d 744, 408 N.Y.S.2d 308 (Fam.Ct. Queens Cty.1978), Matter of Diana A., 65 Misc.2d 1034, 319 N.Y.S.2d 691 (Fam.Ct., NY Cty.1971), Matter of Tonita R., 74 A.D.2d 830, 425 N.Y.S.2d 172 (2nd Dept.1980), Matter of Tashyne L., 53 A.D.2d 629, 384 N.Y.S.2d 472 (2nd Dept.1976) ... In reconciling the special rules of Family Court with traditional civil and criminal court due process standards, the New York Court of Appeals stated ... ...
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Lou R., Matter of
... ... of Tashyne L., 53 A.D.2d 629, 384 N.Y.S.2d 472; Mtr. of Tonita R., 74 A.D.2d 830, 425 N.Y.S.2d 172 ... The Court further finds that the child Quita is a neglected child in that her physical, mental or emotional condition is in danger of becoming impaired as a result of her parents' having neglected Lou as herein ... ...
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Jennifer Maria G., Matter of
... ... This evidence established a prima facie case against respondent (see Family Court Act § 1046 Matter of Cindy JJ, 105 A.D.2d 189, 484 N.Y.S.2d 249; Matter of Rose B., 79 A.D.2d 1044, 1045-1046, 435 N.Y.S.2d 185; Matter of Tonita R., 74 A.D.2d 830, 831, 425 N.Y.S.2d 172; Matter of Keith R., 123 Misc.2d 617, 474 N.Y.S.2d 254; Matter of Hawkins, 76 Misc.2d 738, 351 N.Y.S.2d 574). Accordingly, we reverse and remit the matter for a new fact-finding hearing to be conducted by a judge other than the one who tried this case ... ...
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Keith R., Matter of
... ... Typical are cases such as Matter of Cynthia V., 94 A.D.2d 773, 462 N.Y.S.2d 721; Matter of Tashyne L., 53 A.D.2d 629, 384 N.Y.S.2d 472; Matter of Rose B., 79 A.D.2d 1044, 435 N.Y.S.2d 185; Matter of Tonita R., 74 A.D.2d 830, 425 N.Y.S.2d 172 ... Nevertheless, a plain reading of the statute leads to the conclusion that it is also applicable where the "condition of ... the child" is one of mental or emotional impairment that would not otherwise exist except by reason of parental ... ...