IN RE: HEAVEN C.E. (2018)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about December 6, 2017, insofar as it determined, after a hearing, that respondent-appellant mother Tiara C. abused and severely abused Heaven C. and derivatively abused and severely abused Joseph C., unanimously affirmed, without costs.

Petitioner satisfied its burden of making an initial prima facie showing of severe abuse (Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40, 624 N.E.2d 168 [1993] ).  Expert testimony established by clear and convincing evidence that then three-year-old Heaven C. suffered from non-accidental injuries, including life-threatening brain trauma resulting in permanent brain damage, a fractured pelvis, and bruises, burns, and scars on her body.  The court properly exercised its discretion in crediting the testimony of the child's treating physician, Doctor O'Hara, a board-certified pediatrician with a certification in child abuse.  Doctor O'Hara opined to a reasonable degree of medical certainty that Heaven's brain trauma was caused by partial strangulation leading to a loss of blood flow, rather than another theory unrelated to abuse, based on the child's presentation of symptoms and constellation of other injuries, which were clearly inflicted.

Further, even assuming that the mother's live-in boyfriend alone inflicted these injuries, the mother remains culpable for permitting the abuse to occur (see Family Court Act § 1012[e][i];  Matter of Vivienne Bobbi–Hadiya S. [Makena Asanta Malika McK.], 126 A.D.3d 545, 546, 5 N.Y.S.3d 418 [1st Dept. 2015], lv denied 25 N.Y.3d 909, 2015 WL 3555575 [2015] ).  Given the nature and severity of the child's injuries, the mother was or should have been aware of the abuse.  Moreover, the mother's delay in summoning emergency assistance for almost two hours after Heaven was found comatose further supports the finding of severe abuse (see Matter of Amirah L. [Candice J.] ), 118 A.D.3d 792, 794, 988 N.Y.S.2d 200 [2d Dept. 2014] ).

Having determined that Heaven was severely abused, the Family Court's finding of derivative severe abuse as to Joseph C. was proper, as the mother's actions demonstrated that she had a “fundamental defect in her understanding of her parental obligations” (Matter of Kaylene H. [Brenda P.H.], 133 A.D.3d 477, 478, 20 N.Y.S.3d 15 [1st Dept. 2015];  see Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied sub nom. Marino S. v. Angel Guardian Children & Family Servs., 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003];  Family Court Act § 1012[e][ii] ).  Contrary to the mother's contention, the Family Court did not err in drawing the most negative inference against her for her failure to testify where petitioner established its prima facie case of severe abuse (see Matter of Ashley M.V. [Victor V.], 106 A.D.3d 659, 660, 966 N.Y.S.2d 406 [1st Dept. 2013] ).

We have considered the mother's remaining contentions, including her claim of ineffective assistance of counsel, and find them unavailing.