Westchester County Dept. of Social Services Ashanti R.) v. Felicia R.

• Decision Date: 22 May 1995
• Citation: 628 N.Y.S.2d 133,215 A.D.2d 671
• Parties: In the Matter of WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of ASHANTI R. (Anonymous), a Child Alleged to be Abused and Neglected, Respondent, v. FELICIA R. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 133

628 N.Y.S.2d 133

215 A.D.2d 671

In the Matter of WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of ASHANTI R. (Anonymous), a Child Alleged to be Abused and Neglected, Respondent, v. FELICIA R. (Anonymous), Appellant.

Supreme Court, Appellate Division,

Second Department.

May 22, 1995.

Richard S. Birnbaum, White Plains, for appellant.

Marilyn J. Slaatten, County Atty., White Plains (Carol Van Scoyoc and Linda M. Trentacoste, of counsel), for respondent.

Toba Beth Stutz, Pound Ridge, Law Guardian for the child.

Before ROSENBLATT, J.P., and MILLER, RITTER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of (1) a fact-finding order of the Family Court, Westchester County (Bellantoni, J.), dated February 24, 1993, as made findings of abuse and neglect against her, and (2) an order of disposition of the same court, dated April 7, 1993, as placed the child in the care and custody of the Westchester County Department of Social Services for one year.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as that order was superseded by the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed insofar as appealed from, without costs or disbursements.

The evidence that the child, Ashanti, has suffered severe and permanently disabling injuries consistent with "shaken baby syndrome" constituted prima facie proof of child abuse and neglect (see, Family Ct. Act § 1012[e][i]; [f][i][B]; § 1046[a][ii]. Contrary to the contentions of the appellant mother, the evidence she presented did not rebut this statutory presumption (see, Matter of Philip M., 82 N.Y.2d 238, 244, 604 N.Y.S.2d 40, 624 N.E.2d 168).

Although the appellant contends that the court should have exonerated her of any culpability and concluded that Michael R., who was alone with Ashanti for part of the day, was responsible for her injuries, the appellant never implicated Michael R. at the fact-finding hearing or otherwise testified that he was the one who had injured Ashanti. Nor is there any merit to the appellant's contention that absent direct evidence that she was the one who shook Ashanti and inflicted her injuries, a finding of abuse cannot be made against her (see, Matter of Dawn D., 204 A.D.2d 634, 612 N.Y.S.2d 215). Accordingly, the Family Court's adjudication of Ashanti to be an abused and...