IN RE: JAYCOB S. and Jaymes S. (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the order of protection against respondent Robert M.M., II, and as modified the order is affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 10, respondents maternal grandfather and his stepsister appeal, in appeal No. 1, from an order that, inter alia, placed Jaymes S. and Jaycob S. in the custody of petitioner. In appeal No. 2, respondents appeal from an order that, inter alia, placed Jaylynn J. in the custody of petitioner. In each order, Family Court issued “a complete stay-away order of protection ․ on behalf of the children” against respondents.

“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 [the] respondents, and (2) that [the] respondents were the caretakers of the child at the time the injury occurred” (Matter of Grayson R.V. [Jessica D.], 200 A.D.3d 1646, 1648, 160 N.Y.S.3d 514 [4th Dept. 2021], lv denied 38 N.Y.3d 909, 2022 WL 2127772 [2022] [internal quotation marks omitted]; see Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993]; Matter of Nancy B., 207 A.D.2d 956, 957, 617 N.Y.S.2d 83 [4th Dept. 1994]). Contrary to respondents’ contention in appeal No. 2, petitioner established that Jaylynn J. suffered numerous injuries that “would ordinarily not occur absent an act or omission of respondents” (Philip M., 82 N.Y.2d at 243, 604 N.Y.S.2d 40, 624 N.E.2d 168). Section 1046 (a) (ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” (Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168). Although the burden of proving child abuse or neglect rests with the petitioner (see id.; Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1493, 41 N.Y.S.3d 341 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 628934 [2017]), once the petitioner “has established a prima facie case, the burden of going forward shifts to [the] respondents to rebut the evidence of ․ culpability” (Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168; see generally Matter of Devre S. [Carlee C.], 74 A.D.3d 1848, 1849, 902 N.Y.S.2d 739 [4th Dept. 2010]). Not only did petitioner elicit medical testimony of Jaylynn J.’s injuries to establish its prima facie case, but it also elicited testimony of the children's disclosures of physical abuse inflicted on Jaylynn J. at the hands of respondents. Petitioner further established that Jaylynn J. failed to receive adequate nutrition in respondents’ care (see Matter of Ahren B.-N. [Gary B.-N.], 222 A.D.3d 1403, 1405, 202 N.Y.S.3d 620 [4th Dept. 2023]; Matter of Dustin B., 24 A.D.3d 1280, 1281, 805 N.Y.S.2d 879 [4th Dept. 2005]). Respondents failed to rebut the evidence of culpability.

Contrary to respondents’ further contention, we conclude that the court did not impermissibly place the burden of proof on them. Rather, the court's decision reflects that it properly considered whether respondents had rebutted the evidence of their culpability (see Philip M., 82 N.Y.2d at 244, 604 N.Y.S.2d 40, 624 N.E.2d 168).

Contrary to respondents’ contention in appeal No. 1, the court properly determined that respondents derivatively neglected Jaymes S. and Jaycob S. Pursuant to Family Court Act § 1046 (a) (i), “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, [a] respondent.” “In order [t]o sustain a finding of derivative neglect, the prior finding must be so proximate in time to the derivative proceeding so as to enable the factfinder to reasonably conclude that the condition still exists ․; however, there is no bright-line, temporal rule beyond which [this Court] will not consider older child protective determinations” (Matter of Sean P. [Sean P.], 162 A.D.3d 1520, 1520, 78 N.Y.S.3d 549 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4440653 [2018] [internal quotation marks omitted]). We conclude that the evidence adduced at the fact-finding hearing concerning Jaylynn J. indicates that Jaymes S. and Jaycob S. were “equally at risk” (Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003]).

We agree with respondent grandfather, however, in appeal Nos. 1 and 2, that the court erred in imposing orders of protection against him pursuant to Family Court Act § 1056 (4). “Subdivision (4) of [Family Court Act] section 1056 allows a court to issue an independent order of protection ․, but only against a person ․ who is not related by blood or marriage to the child” (Matter of Kayla K. [Emma P.-T.], 204 A.D.3d 1412, 1414, 167 N.Y.S.3d 264 [4th Dept. 2022] [internal quotation marks omitted]). We therefore modify the order in each appeal accordingly.