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In re Seth G.

50 A.D.3d 1530 Court N.Y. App. Div. Decision date 2008-04-25 English

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In the Matter of Seth G. and Another, Infants. Monroe County Department of Human and Health Services, Respondent; Kristen J., Appellant, et al., Respondent.
[856 NYS2d 778]

Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.), entered April 21, 2006 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that Seth G. is an abused child, and John R., Jr., also known as Baby Boy J., is a neglected child.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent mother appeals from an order adjudicating her three-year-old child to be an abused child and her newborn child to be derivatively neglected. Petitioner presented the testimony of a physician establishing that the three-year-old child sustained extensive bruising on his face and shoulder as the result of pressure placed around his neck for at least 30 seconds. Contrary to the mother’s contention, petitioner established a prima facie case of child abuse with respect to the

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three-year-old child (see Family Ct Act § 1046 [a] [ii]), and the mother failed to rebut the presumption of parental responsibility (see Matter of Philip M., 82 NY2d 238 , 245-246 [1993]). The record establishes that the mother had given petitioner’s caseworkers varying explanations for the child’s injury, and Family Court was entitled to discredit those explanations (see Matter of Alyssa C.M., 17 AD3d 1023 , 1024 [2005], lv denied 5 NY3d 706 [2005]). The newborn child was born several days after the three-year-old child was injured, and we conclude that the court properly determined that the newborn child was derivatively neglected inasmuch as the mother’s abuse of the three-year-old child was “ ‘so closely connected with the care of [the newborn] child as to indicate that the [newborn] child [was] equally at risk’ ” (Matter of A.R., 309 AD2d 1153 , 1153 [2003], quoting Matter of Marino S., 100 NY2d 361 , 374 [2003], cert denied 540 US 1059 [2003]). Present—Hurlbutt, J.P., Martoche, Fahey, Green and Gorski, JJ.

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