Matter of Abraham P. (Violeta J.)

Matter of Abraham P. (Violeta J.) 2010 NY Slip Op 00389 [69 AD3d 492] January 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

In the Matter of Abraham P. and Another, Children Alleged to be Abused. Violeta J., Appellant; Administration for Children Services, Respondent.

—[*1] Michael S. Bromberg, Sag Harbor, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), Law Guardian.

Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about December 10, 2008, which placed appellant's children in the custody of their nonparty father, with supervision for a period of 12 months, upon a February 2007 fact-finding determination that appellant had abused her infant son, causing his death, and derivatively abused the subject children, unanimously affirmed, without costs.

Petitioner agency established, by a preponderance of the evidence through the testimony of the medical examiner, that appellant's four-month-old son died of asphyxiation when a coin lodged in his airway, and that the infant was too young to have been able to pick up the coin himself. The autopsy also revealed that the infant had suffered at least one previous anoxic event. It was undisputed that the baby was in appellant's exclusive care on both occasions.

Appellant failed to sustain her burden of rebutting the evidence of her culpability and the court properly drew the strongest negative inference from her failure to testify (see Matter of Nicole H., 12 AD3d 182, 183 [2004]). Contrary to her claim, there was sufficient evidence that appellant derivatively abused the subject children in light of the fact that—at best—she took no [*2]action to assist the baby on more than one occasion when he was unable to breathe while in her exclusive care (see Matter of Vincent M., 193 AD2d 398, 404 [1993]). Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.