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. In making its determination, the court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal.

The court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests. Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care. The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody.

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 which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred. Family Court Act § 1046(a)(ii) authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur. Once the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of  culpability, although the burden of proof always remains with the petitioner.

Here, the Family Court’s determination to grant the parents’ application for the return of Chase and Kaiden lacked a sound and substantial basis in the record. 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. Under the circumstances of this case, this risk could not be mitigated by the conditions imposed by the court. Accordingly, the parents’ application for the return of Chase and Kaiden should have been denied.

In the Matter of Chase P., – NYS3d – , 2021 WL 5226155 (2nd Dep’t.  2021)

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