In re Nancy B.

Appellate Division of the Supreme Court of New York

In re Nancy B.

207 A.D.2d 956, 617 N.Y.S.2d 83

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1994

StatusPublished

Cited by5 cases

This text of 207 A.D.2d 956 (In re Nancy B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Nancy B., 207 A.D.2d 956, 617 N.Y.S.2d 83 (N.Y. Ct. App. 1994).

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Opinion

—Order unanimously affirmed without costs. Memorandum: The finding of abuse by Family Court is supported by a fair preponder[957]*957anee of the credible evidence (see, Family Ct Act § 1012 [e] [i]; § 1046 [b]).

The contention of respondent Delphine B. that the court shifted the burden of proof to her in this article 10 proceeding is without merit. Upon finding that petitioner, the Department of Social Services, met its burden of establishing that the injuries to the child would not ordinarily have occurred except by reason of the acts or omissions of the parent, the court properly shifted the burden of providing a satisfactory explanation to respondents (see, Family Ct Act § 1046 [a] [ii]; Matter of Phillip M., 82 NY2d 238).

The contention of respondent Robert M. that the court erred in considering proof of the child’s injury as prima facie evidence of his abuse of the child is without merit (see, Family Ct Act § 1046 [a] [ii]). Prima facie proof of child abuse “may be established [under that section] 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 Phillip M., supra, at 243).

Although there was conflicting testimony concerning the extent of Robert M.’s care of the child, the court credited testimony that he lived with and regularly cared for her (cf., Matter of Vincent M., 193 AD2d 398). The court’s resolution of that credibility issue "must be accorded the greatest respect” (Matter of Irene O., 38 NY2d 776, 777; see, Matter of Lynelle W., 177 AD2d 1008). The court properly applied section 1046 (a) (ii) to Robert M. as a "caretaker * * * of the child at the time the injury occurred” (Matter of Phillip M., supra, at 243). (Appeal from Order of Erie County Family Court, O’Donnell, J.—Child Abuse.) Present—Denman, P. J., Lawton, Wesley, Doerr and Boehm, JJ.

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—Order unanimously affirmed without costs. Memorandum: The finding of abuse by Family Court is supported by a fair preponder[957]*957anee of the credible evidence (see, Family Ct Act § 1012 [e] [i]; § 1046 [b]).

The contention of respondent Delphine B. that the court shifted the burden of proof to her in this article 10 proceeding is without merit. Upon finding that petitioner, the Department of Social Services, met its burden of establishing that the injuries to the child would not ordinarily have occurred except by reason of the acts or omissions of the parent, the court properly shifted the burden of providing a satisfactory explanation to respondents (see, Family Ct Act § 1046 [a] [ii]; Matter of Phillip M., 82 NY2d 238).

The contention of respondent Robert M. that the court erred in considering proof of the child’s injury as prima facie evidence of his abuse of the child is without merit (see, Family Ct Act § 1046 [a] [ii]). Prima facie proof of child abuse “may be established [under that section] 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 Phillip M., supra, at 243).

Although there was conflicting testimony concerning the extent of Robert M.’s care of the child, the court credited testimony that he lived with and regularly cared for her (cf., Matter of Vincent M., 193 AD2d 398). The court’s resolution of that credibility issue "must be accorded the greatest respect” (Matter of Irene O., 38 NY2d 776, 777; see, Matter of Lynelle W., 177 AD2d 1008). The court properly applied section 1046 (a) (ii) to Robert M. as a "caretaker * * * of the child at the time the injury occurred” (Matter of Phillip M., supra, at 243). (Appeal from Order of Erie County Family Court, O’Donnell, J.—Child Abuse.) Present—Denman, P. J., Lawton, Wesley, Doerr and Boehm, JJ.

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207 A.D.2d 956, 617 N.Y.S.2d 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nancy-b-nyappdiv-1994.

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