In re Brayden UU.
Garry, J. Appeals (1) from six orders of the Family Court of Clinton County (Lawliss, J.), entered December 17, 2012, January 4, 2013, February 11, 2013 and February 14, 2013, which, among other things, granted petitioner‘s applications, in four proceedings pursuant to
Respondent Amanda UU. (hereinafter the mother) has three sons (born in 2008, 2011 and 2012). The father of the youngest son is respondent Tyler VV. (hereinaftеr respondent), who began dating the mother in 2011 and moved in with her in June 2012. In May 2012, the middle son, then approximately five months old, began experiencing seizure-like symptoms. He was hospitalized at Champlain Valley Physicians Hospital in Clinton County after the first of these occurrences, which was described as “an acute life-threatening event,” but the underlying cause was not diagnosed. Following two more incidents, he was referred by his pediatrician to Fletcher Allen Health Care Center in Vermont, where hе was diagnosed with a skull fracture and intracranial bleeding, and underwent surgery to drain fluid from his brain. Physicians at Fletcher determined that his injuries were indicative of abuse.
In June 2012, petitioner commenced the first two of these
As relevant here, a child under 18 is abused when a parent or person who is legally responsible for the child‘s carе “creates or allows to be created a substantial risk of physical injury to such child by other than accidental means” (
Here, petitioner offered the testimony of several physicians who treated the middle son. Their testimony and the medicаl records established that he experienced two or more traumatic events resulting in injuries that would not normally occur in such a young and immobile infant. A physician whо treated the middle son at Fletcher testified that the first of these injuries
Neverthеless, respondents contend that petitioner did not establish a prima facie case of abuse against them, because other people who аlso cared for the middle son could have caused his injuries. We disagree. The testimony established that the mother was the primary caretaker for the two older sons until petitioner removed them from her custody. While respondent did not reside with the family throughout most of this time period and was rarely alone with the middle son, the testimony established that he spent about half his time in the mother‘s residence after they began dating in late 2011, and participated in caring for the children when he stayed with her. Thus, Family Court properly found that he was a “[p]erson legally responsible” for the children‘s care (
As for other caretakers, although both the mother‘s mother аnd respondent‘s mother provided occasional care for the children during the weeks before the middle son‘s injuries, Family Court expressly credited their testimony thаt they did nothing to harm him and did not know how the injuries occurred. The mother‘s mother further testified that another relative was often present in her home when the children were there, and that she had seen this relative behave violently toward his own young child. However, she also stated that this relative had been alone with the middle son only once for a 10-minute period, and that the middle son showed no signs of distress there-after.
In view of the severity of the middle son‘s injuries—whiсh, according to his physicians, could have caused his death and may result in permanent brain damage—as well as respondents’ refusal to take responsibility for them, the findings of derivative abuse and neglect with respect to the other two sons were proper (see Matter of Kayden E. [Luis E.], 111 AD3d 1094, 1095-1096 [2013], lv denied 22 NY3d 862 [2014]; Matter of Alexander F. [Raddad I.], 82 AD3d 1514, 1517 [2011]; Matter of Dylan TT. [Kenneth UU.], 75 AD3d 783, 784 [2010]). Finally, respondent‘s challenges to the dispositional order as to the youngest son have been rendered moot by his consent to a subsequent order in a
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the orders of fact-finding and disposition entered December 17, 2012, January 4, 2013 and February 11, 2013 are affirmed, without costs. Ordered that the appeals from the order of disposition entered February 14, 2013 and the orders of protection entered January 4, 2013 and February 14, 2013 are dismissed, as moot, without costs.