In re Jesus M.

Jul 11, 2005
Versions:20 A.D.3d 479
797 N.Y.S.2d 768

In the Matter of JESUS M., an Infant. ADMINISTRATION FOR CHILDREN’S SERVICES, Respondent; PRISCILLA I., Appellant.

(Proceeding No. 1.) In the Matter of IRIS V.M., an Infant. ADMINISTRATION FOR CHILDREN’S SERVICES, Respondent; PRISCILLA I., Appellant. (Proceeding No. 2.) In the Matter of KATELYN D., an Infant. ADMINISTRATION FOR CHILDREN’S SERVICES, Respondent; PRISCILLA I., Appellant. (Proceeding No. 3.) In three related child protective proceedings pursuant to Family Court Act article 10, Priscilla I. appeals from (1) a fact-finding order of the Family Court, Queens County (Richardson-Thomas, J.), dated December 8, 2003, which, inter alia, after a hearing, found that she abused and neglected Jesus M., and (2) an order of disposition of the same court dated June 16, 2004, which, after a hearing, placed Iris V.M. and Katelyn D. in the custody of the Queens County Department of Social Services for a period of 12 months.

Ordered that the orders are affirmed, without costs or disbursements.

“Family Court Act § 1046 (a) (ii) ‘provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred’ ” (Matter of New York City Dept. of Social Servs. [H. & J. Children] v Carmen J., 209 AD2d 525, 525 [1994], quoting Matter of Philip M., 82 NY2d 238, 243 [1993]).

The petitioner filed allegations of child abuse against, among others, the appellant, Priscilla I., after her nine-month-old nephew, Jesus M., sustained suspicious fractures to both his right and left humerus. Contrary to the appellant’s contention, the Family Court’s findings of abuse and neglect with respect to Jesus M. and of derivative neglect with respect to Katelyn D. and Iris V.M. are supported by a preponderance of the evidence (see Family Ct Act §§ 1012 [e]; 1046 [a] [ii]; [b] [i]; Matter of Marc A., 301 AD2d 595, 597 [2003]; Matter of K. Children, 253 AD2d 764, 765 [1998]; Matter of New York City Dept. of Social Servs. [H. & J. Children] v Carmen J., supra; Matter of A. Children, 189 AD2d 872 [1993]; Matter of Rasheda S., 183 AD2d 770 [1992]).

Priscilla I.’s remaining contention that Family Court Act § 1046 is unconstitutional is unpreserved for appellate review (see Matter of Tiffany B., 111 AD2d 168 [1985]). Cozier, J.P., S. Miller, Mastro and Rivera, JJ., concur.