Matter of William KK. , 44 N.Y.S.3d 606 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 5, 2017 522542
________________________________
In the Matter of WILLIAM KK.,
Alleged to be a Neglected
Child.
BROOME COUNTY DEPARTMENT OF MEMORANDUM AND ORDER
SOCIAL SERVICES,
Respondent;
SAMANTHA LL.,
Appellant,
et al.,
Respondents.
________________________________
Calendar Date: November 14, 2016
Before: McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.
__________
Lisa K. Miller, McGraw, for appellant.
Thomas Coulson, Broome County Department of Social
Services, Binghamton, for Broome County Department of Social
Services, respondent.
Christopher Pogson, Binghamton, attorney for the child.
__________
Aarons, J.
Appeal from an order of the Family Court of Broome County
(Young, J.), entered January 7, 2016, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate the subject child to be neglected.
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Respondent Samantha LL. (hereinafter respondent) is the
mother of the subject child (born in 2013). Weekday mornings,
respondent generally dropped the child off with the child's
paternal grandparents, who watched the child from 10:00 a.m. to
7:00 p.m. while respondent was at work. Respondent would pick up
the child later in the evening. One morning in July 2014, after
the child was left with the grandparents, the grandmother took
the child to the hospital where it was revealed that the child
had sustained a skull fracture and had multiple bruises and
abrasions throughout his body. Petitioner subsequently commenced
this Family Ct Act article 10 proceeding alleging that
respondent, among others, neglected the child. Following a fact-
finding hearing, Family Court adjudicated the child to be
neglected. Respondent appeals. We affirm.
In a neglect proceeding, petitioner bears the burden of
establishing by a preponderance of the evidence that the child's
physical, mental or emotional condition was harmed or imminently
in danger of such harm due to a parent's failure to exercise a
minimum degree of care (see Family Ct Act §§ 1012 [f] [i]; 1046
[b] [i]; Matter of Stephanie RR. [Pedro RR.], 140 AD3d 1237, 1238
[2016]; Matter of Daniel X. [Monica X.], 114 AD3d 1059, 1060
[2014]). To establish a prima facie case of neglect, petitioner
must demonstrate that "the child in question sustained the type
of injury that ordinarily would not occur absent an act or
omission by the parent or person otherwise legally responsible
for his or her care and, further, that such individual was the
caretaker of the child at the time the underlying injury
occurred" (Matter of Steven M. [Stephvon O.], 88 AD3d 1099, 1100
[2011]; see Family Ct Act § 1046 [a] [ii]; Matter of Maddesyn K.,
63 AD3d 1199, 1200 [2009]). Family Court's credibility
determinations are accorded due deference and will not be
disturbed so long as they are supported by a sound and
substantial basis in the record (see Matter of Josephine BB.
[Rosetta BB.], 114 AD3d 1096, 1100 [2014]; Matter of Thomas M.
[Susan M.], 81 AD3d 1108, 1109 [2011]).
We conclude that petitioner made a prima facie showing that
respondent neglected the child. The grandparents watched the
child on July 10, 2014 and they found nothing abnormal about the
child. When changing the child's clothes or diapers, the
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paternal grandmother did not see any bruises, rashes or
abrasions. That evening when the grandmother dropped the child
off with respondent, she informed respondent that the child had a
long day and was tired. The next morning, during the exchange of
the child, respondent told the grandmother that the child had a
rash, which respondent believed was caused by the child's
pajamas. The grandmother, however, testified that the child's
behavior, while not alarming, was unusual. The child was fussy,
quiet and had no appetite. When the grandmother tried to change
the child's clothes and diapers, the child did not want to lie on
his back and appeared to be in pain, and the grandmother noticed
bruises on the child's chest, leg, shoulder and head. At
approximately 1:00 p.m., the grandmother took the child to a
hospital where the child was diagnosed with a skull fracture and
numerous bruises throughout his body. A physician who testified
on petitioner's behalf opined that the child's injuries were
caused by nonaccidental means and likely occurred 15 to 18 hours
prior to the child's hospital admission. While respondent argues
that the physician's opinion should have been disregarded because
the physician did not personally examine the child, the failure
to do so, while not insignificant, does not render the
physician's opinion without any probative value (see Matter of
April WW. [Kimberly WW.], 133 AD3d 1113, 1118 [2015]). Rather,
it goes to the weight to be accorded to such opinion.
Furthermore, respondent waived any challenge to the physician's
credentials inasmuch as she never objected to Family Court's
qualification of the physician as an expert (see Matter of
Kaitlyn R., 267 AD2d 894, 896 [1999]). Based on the foregoing,
we conclude that petitioner adduced prima facie evidence of
neglect (see Matter of Ameillia RR. [Megan SS.–Jered RR.], 112
AD3d 1083, 1084 [2013]; Matter of Seamus K., 33 AD3d 1030, 1032
[2006]).
In response to petitioner's prima facie showing, respondent
failed to provide a reasonable explanation for the child's
injuries (see Matter of Izayah J. [Jose I.], 104 AD3d 1107, 1109
[2013]; Matter of Seamus K., 33 AD3d at 1033). Respondent
instead contends that the child's injuries could have been
inflicted while the child was under the care of the grandparents.
Respondent, however, acknowledged that there was nothing wrong
with the child in the days prior to July 11, 2014 when the
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grandparents returned the child to her. The grandmother also
testified that, from the moment the mother dropped the child off
to her on the morning of July 11, 2014 to when she took the child
to the hospital approximately three hours later, nothing occurred
that may have led to the child's injuries. To that end, Family
Court found that the grandmother "testified credibly." According
deference to Family Court's credibility assessments (see Matter
of Stephanie RR. [Pedro RR.], 140 AD3d at 1238), we discern no
reason to disturb Family Court's finding that the mother was
responsible for the child's care when the injuries occurred (see
Matter of Brayden UU. [Amanda UU.], 116 AD3d 1179, 1181-1182
[2014]; Matter of Seamus K, 33 AD3d at 1033-1034). Additionally,
taking into account that Family Court was entitled to draw a
negative inference against respondent based upon her invocation
of her right against self-incrimination after being asked whether
she did anything to harm the child or if she was aware of his
injuries (see Matter of Asianna NN. [Kansinya OO.], 119 AD3d
1243, 1246 [2014], lv denied 24 NY3d 907 [2014]), we conclude
that a sound and substantial basis exists to support Family
Court's determination of neglect (see Matter of Justin A. [Derek
C.], 133 AD3d 1106, 1108 [2015], lv denied 27 NY3d 904 [2016];
Matter of Heaven H. [Linda H.], 121 AD3d 1199, 1200-1201 [2014]).
McCarthy, J.P., Garry, Rose and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court