FAMILY COURT SHOULD NOT HAVE RETURNED THE CHILD TO THE PARENTS’ CUSTODY AFTER THE CHILD HAD BEEN TEMPORARILY REMOVED BECAUSE OF APPARENT ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ application for the return of their child after a temporary removal pursuant to Family Court Act article 10 should not have been granted:

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health'” … . * * *

The petitioner established a prima facie case of child abuse against the parents by presenting evidence that injuries Ezara sustained would not ordinarily occur absent an act or omission of the caregiver, and that the parents were the caregivers of Ezara during the relevant time period … . Specifically, the petitioner’s expert in child abuse pediatrics testified that the then two-month-old Ezara had multiple rib fractures, which appeared to have been sustained at different times, as well as fractures in his legs and a laceration of his spleen, and further testified within a reasonable degree of medical certainty that these injuries were caused by non-accidental trauma. The parents failed to rebut the presumption of culpability with a reasonable and adequate explanation for Ezara’s injuries … . Further, the petitioner established that the parents demonstrated such an impaired level of parental judgment with respect to Ezara so as to create a substantial risk of harm to any child in their care … . Matter of Chase P. (Maureen Q.), 2021 NY Slip Op 06173, Second Dept 11-10-21