                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   December 29, 2016               522110
                                                       522737
________________________________

In the Matter of GABRIELLA UU.,
   Alleged to be a Neglected
   Child.

ULSTER COUNTY DEPARTMENT OF
   SOCIAL SERVICES,                         MEMORANDUM AND ORDER
                    Respondent;

ROBERT UU.,
                    Appellant.
________________________________


Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


     Ted J. Stein, Woodstock, for appellant.

      Daniel Gartenstein, Ulster County Department of Social
Services, Kingston, for respondent.

     Betty J. Potenza, Highland, attorney for the child.

                             __________


Clark, J.

      Appeals from a decision and an order of the Family Court of
Ulster County (Savona, J.), entered September 11, 2015 and
November 6, 2015, which, among other things, granted petitioner's
application, in a proceeding pursuant to Family Ct Act article
10, to adjudicate the subject child to be neglected.

      Respondent is the father of a daughter (born in 2013).       On
February 5, 2015, the child's mother and respondent took the
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child to the emergency room to address swelling in the child's
left forearm and a subsequent X ray revealed that the child had
sustained a spiral fracture to her radial bone and a mid-shaft
fracture to her ulna bone. Petitioner thereafter commenced this
Family Ct Act article 10 proceeding against respondent.
Following a fact-finding hearing, Family Court issued a written
decision concluding that petitioner had proven, by a
preponderance of the evidence, that respondent had grabbed the
child's left forearm with sufficient force and in such a manner
as to cause the fractures and, in a November 6, 2015 order of
fact-finding and disposition, adjudged the child to have been
neglected by respondent, placed the child in the mother's care
and issued an order of protection directing respondent to stay
away from the mother and the child, except during visitation.
Respondent appealed from both the written decision and the order
of fact-finding and disposition.1

      To establish neglect, a petitioner must demonstrate, by a
preponderance of the evidence (see Family Ct Act § 1046 [b] [i]),
that the child was harmed or placed at risk of harm by the
respondent's failure to exercise a minimum degree of care "in
providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a
substantial risk thereof, . . . or by any other acts of a . . .
serious nature requiring the aid of the court" (Family Ct Act
§ 1012 [f] [i] [B]; see Matter of Izayah J. [Jose I.], 104 AD3d
1107, 1108 [2013]). "[P]roof of injuries sustained by a child or
of the condition of a child of such a nature as would ordinarily
not be sustained or exist except by reason of the acts or
omissions of the [respondent]," along with evidence that the
respondent was the caretaker of the child at the time of the
injury, shall be prima facie evidence of neglect (Family Ct Act
§ 1046 [a] [ii]; see Matter of Philip M., 82 NY2d 238, 243


    1
        Inasmuch as an appeal does not lie from a decision of the
court (see Family Ct Act § 1112 [a]; Matter of Jesse XX. [Marilyn
ZZ.], 69 AD3d 1240, 1242 n [2010]; see also CPLR 5512 [a]; Family
Ct Act § 165), respondent's appeal from the decision entered
September 11, 2015 must be dismissed.
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[1993]; Matter of Sidney FF., 44 AD3d 1121, 1122 [2007]), thereby
shifting the burden to the respondent "to rebut the presumption
of culpability by offering a reasonable and adequate explanation
for how the child sustained the injury" (Matter of Ashlyn Q.
[Talia R.], 130 AD3d 1166, 1167 [2015]; see Matter of Steven M.
[Stephvon O.], 88 AD3d 1099, 1100-1101 [2011]).

      Here, the emergency room physician that attended to the
child testified that she observed bruising on the lateral and
anterior aspects of the child's left elbow, which appeared to be
consistent with being "grabbed by a thumb, a hand grip," and that
the fractures occurred at the same time and were caused by either
a direct hit to the forearm or a forceful grab, pull and twist of
the child's left arm. She asserted that an accidental fall on an
outstretched hand would not have caused both the radial and ulna
bones to fracture at the same time and in the manners in which
they did and that the possible explanations given by the child's
parents were inconsistent with the child's injuries. The child's
mother testified that she noticed the swelling sometime after
having left the child alone with respondent, and her estimations
of time were consistent with the physician's assessment of when
the child had sustained the bruises and fractures. The mother
further testified that respondent had admitted to pulling on the
child's arm, and petitioner offered into evidence Facebook
messages between respondent and the mother in which respondent
acknowledged responsibility for the child's injuries. The
foregoing proof gave rise to the rebuttable presumption that
respondent neglected the child (see Matter of Brayden UU. [Amanda
UU.], 116 AD3d 1179, 1180 [2014]; Matter of Ameillia RR. [Megan
SS.–Jered RR.], 112 AD3d 1083, 1084 [2013]; Matter of Izayah J.
[Jose I.], 104 AD3d at 1108-1009), and, as respondent did not
present any proof to rebut this presumption,2 we are satisfied


    2
        We also note that, given respondent's choice not to
testify at the fact-finding hearing, Family Court permissibly
drew the strongest possible negative inference against him (see
Matter of Alexander Z. [Melissa Z.], 129 AD3d 1160, 1163-1164
[2015], lv denied 25 NY3d 914 [2015]; Matter of Heaven H. [Linda
H.], 121 AD3d 1199, 1201 [2014]).
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that Family Court's finding of neglect is supported by a
preponderance of the credible evidence (see Matter of Ashlyn Q.
[Talia R.], 130 AD3d at 1167-1169; Matter of Maddesyn K., 63 AD3d
1199, 1200-1202 [2009]).

     McCarthy, J.P., Lynch, Rose and Aarons, JJ., concur.



      ORDERED that the appeal from the decision entered September
11, 2015 is dismissed, without costs.

      ORDERED that the order entered November 6, 2015 is
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
