IN RE: AARON McC. (Anonymous). (2009)

In related child protective proceedings pursuant to Family Court Act article 10, the maternal grandmother appeals, as limited by her brief, from so much of an order of fact-finding of the Family Court, Suffolk County (Freundlich, J.), dated April 21, 2008, as, after a fact-finding hearing, found that she had abused the child Ahmad C. and derivatively neglected the child Aaliyah R.

ORDERED that on the Court's own motion, the notice of appeal dated April 29, 2008, is deemed to be a notice of appeal by the maternal grandmother, Jacqueline McD. (see CPLR 2001; Matter of Tagliaferri, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864); and it is further,

ORDERED that the order of fact-finding is affirmed insofar as appealed from, without costs or disbursements.

The petitioner established a prima facie case of abuse against the appellant by introducing evidence demonstrating that while the child Ahmad C. was under her care he suffered injuries of such a nature as would ordinarily not happen except by an act or omission of the appellant (see Family Court Act § 1046[a][ii]; Matter of Philip M., 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168). Specifically, the petitioner presented proof that the child sustained a left parietal diastatic skull fracture, bilateral subdural hemorrhages, and diffuse retinal hemorrhages in both eyes. In response, the appellant failed to rebut the presumption of culpability with a credible and reasonable explanation of how the child sustained the injuries (see Matter of Philip M., 82 N.Y.2d at 244-245, 604 N.Y.S.2d 40, 624 N.E.2d 168; Matter of T'Yanna M., 27 A.D.3d 472, 473, 811 N.Y.S.2d 118).

Further, the Family Court's finding of derivative neglect against the appellant with respect to the child Aaliyah R. is supported by a preponderance of the evidence. The evidence of abuse of the child Ahmad C. demonstrates such an impaired level of judgment by the appellant as to create a substantial risk of harm for any child in her care (see Matter of Brian I., 51 A.D.3d 792, 793, 858 N.Y.S.2d 286).

Finally, contrary to the appellant's contention, her attorney provided her with meaningful representation (see Matter of Alfred C., 237 A.D.2d 517, 655 N.Y.S.2d 589).