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IN RE: SARA B., A Child Under the Age of Eighteen Years, etc., Pamela B., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about March 20, 2006, which, upon a fact-finding determination that the subject child had been abused and neglected, placed her in the custody of the Commissioner of Social Services of the City of New York for 12 months and permitted respondent mother supervised visitation, unanimously affirmed, without costs.
Petitioner satisfied its burden of demonstrating abuse by introducing medical testimony that the four-month-old child had sustained a fracture of the right temporal bone with an epidural bleed and a fracture of the right distal femur that were “of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child” (Family Ct. Act § 1046[a][ii] ). Respondent's explanations for these injuries were implausible or otherwise unreasonable, and she thus failed to rebut the presumption of culpability with a credible and reasonable explanation as to how they were incurred (see Matter of Benjamin L., 9 A.D.3d 153, 780 N.Y.S.2d 8 [2004] ), or otherwise demonstrate why she was not guilty of abuse. The credibility determinations of the Family Court are supported by the record (see Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ).
Respondent failed to preserve a challenge to the Family Court's questioning of her with regard to her history of substance abuse. In any event, a trial court has discretion to elicit and clarify testimony (People v. Johnson, 219 A.D.2d 509, 631 N.Y.S.2d 343 [1995], lv. denied 87 N.Y.2d 903, 641 N.Y.S.2d 233, 663 N.E.2d 1263 [1995] ), and here the Family Court properly questioned respondent in order to assess her credibility.
The Family Court properly precluded a social worker, testifying on respondent's behalf at the dispositional hearing, from offering her opinion as to respondent's parental fitness, since the social worker had not been qualified as an expert and the “general rule is that lay witnesses may testify only to the facts and not to their opinions and conclusions drawn from the facts” (People v. Hackett, 228 A.D.2d 377, 378, 646 N.Y.S.2d 89 [1996], lv. denied 88 N.Y.2d 986, 649 N.Y.S.2d 392, 393, 672 N.E.2d 618, 619 [1996] ). No exception to that rule was present here.
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Decided: June 12, 2007
Court: Supreme Court, Appellate Division, First Department, New York.
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