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NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD.

The Second Department determined Family Court properly found both mother and caretaker responsible for child abuse. It was not necessary to prove which of the two caused injury to the child:

The Family Court Act defines an abused child, inter alia, as a child whose parent, or other person legally responsible for his or her care, “(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ or (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause [such injury]” … . 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 that 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 … . “A parent who stands by while others inflict harm may be found responsible for that harm” … .

Section 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred … . In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together … . Matter of Zoey D. (Simona D.), 2017 NY Slip Op 01689, 2nd Dept 3-8-17

 

FAMILY LAW (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/EVIDENCE (FAMILY LAW, CHILD ABUSE, NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/CHILD ABUSE (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)

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DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE... CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING...