Matter of Jeremiah D. (Deon D.)

Matter of Jeremiah D. (Deon D.) 2017 NY Slip Op 07680 Decided on November 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 2, 2017
Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.
4876

[*1]In re Jeremiah D., A Child Under Eighteen Years of Age, etc., Deon D., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

Steven N. Feinman, White Plains, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Max O. McCann of counsel), for respondent.

Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.

Purported appeal from decision of fact-finding after a hearing, Family Court, New York County (Susan K. Knipps, J.), entered on or about July 8, 2016, which found that respondent father abused and neglected the subject child, deemed a premature notice of appeal (see CPLR 5520[c]; Matter of Tyler W. [Janice B.], 149 AD3d 968 [2d Dept 2017]) from the order of factfinding, same court (Ta-Tanisha D. James, J.), entered on or about July 11, 2016, and, so considered, said order unanimously affirmed, without costs.

We note that the fact-finding order apparently erroneously omitted the finding of abuse made in the decision and, consistent with the approach taken by the parties, deem it reconciled with the decision.

Petitioner proved by a preponderance of the evidence that respondent neglected and abused the subject child (see Family Court Act § 1046[a][ii]). Medical evidence and testimony established that the almost three-month-old child's injuries were the result of an abusive head trauma sustained while he was in the father's exclusive care (Matter of Philip M., 82 NY2d 238, 243 [1993]; Family Court Act § 1046[a][ii]).

Respondent failed to rebut petitioner's case with any credible explanation for the child's condition. The Family Court's credibility findings are entitled to deference and are supported by the record. The court properly rejected respondent's expert's theory that the child's injuries were the result of benign enlargement of the subarachnoid spaces, as this diagnosis, among other things, did not explain the child's retinal hemorrhages or other symptoms, including his having gone

limp and stopped breathing (see Matter of I-Conscious R. [George S.], 121 AD3d 566 [1st Dept 2014], lv dismissed 24 NY3d 1205 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 2, 2017

CLERK