Abuse Finding, Based Upon an Unsatisfactory Explanation for the Child’s Injury, Reversed Based Upon the Testimony of Petitioner’s Medical Witness Who Stated the Injury Could Have Been Caused by a Fall and Described the Child as Basically Asymptomatic and Happy at the Hospital

The Second Department reversed Family Court’s finding of abuse and derivative neglect based upon the injury to one child (Janelle P).  The petitioner had alleged the appellants were unable to provide a satisfactory explanation for the child’s injury.  The court noted the testimony of petitioner’s expert, a physician at the hospital where the child was treated, which indicated the injury could have been caused by a fall and the child did not appear to be in any pain and was happy:

A prima facie case of child abuse or neglect may be established by evidence of an injury which ordinarily would not occur absent an act or omission of the responsible caretaker (see Family Ct Act § 1046 [a][ii]…). “If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,’ although the burden of proof always remains with the petitioner” … .

Here, the evidence presented by the petitioner did not establish a prima facie case of abuse against the appellants. The petitioner’s expert medical witness, a physician at the hospital where Janelle P. was admitted, testified that Janelle P. was diagnosed with a millimeter-sized subdural hematoma and “encephalo hematoma” caused by blunt force trauma. However, he opined that the child’s injury could have been caused by a fall of a couple feet onto a hard surface. Moreover, he testified that there was no discoloration with the swelling, that the child was not in any pain, and that aside from the swelling, the child was asymptomatic. He also testified that when he examined the child, she looked “great,” and was smiling and happy. Matter of Jaylin C, 2014 NY Slip Op 04482m 2nd Dept 6-18-14