In re Christopher Anthony M.

In two child protective proceedings pursuant to Family Court Act article 10, the father appeals from so much of an order of disposition of the Family Court, Queens County (Richroath, J.), dated June 12, 2006, entered upon his default, as, upon a fact-finding order of the same court dated April 12, 2006, entered upon his default, finding, inter alia, that he had abused the child Erick M. and had derivatively neglected the child Christopher M., and upon an order of the same court dated November 10, 2005, denying his motion for summary judgment dismissing the petitions insofar as asserted against him, released the children to the mother’s custody. Ordered that the appeal from the order of disposition is dismissed, without costs or disbursements, except insofar as it brings up for review the order dated November 10, 2005, denying the motion for summary judgment dismissing the petitions insofar as asserted against the father; and it is further, Ordered that the order of disposition is reversed insofar as reviewed, on the law, without costs or disbursements, the father’s motion for summary judgment dismissing the petitions insofar as asserted against him is granted, the petitions are dismissed insofar as asserted against the father, the order dated November 10, 2005 is modified accordingly, and so much of the fact-finding order dated April 12, 2006 and the order of disposition dated June 12, 2006, as pertain to the father are vacated. [897] Where, as here, the order of disposition appealed from was made upon the appellant’s default, review is limited to matters which were the subject of contest in the Family Court (see Matter of Paulino v Camacho, 36 AD3d 821, 822 [2007]; Matter of Vanessa F., 9 AD3d 464 [2004]). Accordingly, review is limited to the denial of the father’s motion for summary judgment dismissing the abuse and neglect petitions insofar as asserted against him. In support of his motion for summary judgment, the father submitted the evidence adduced at the hearing held pursuant to Family Court Act § 1028 (hereinafter the 1028 hearing). The Family Court was correct to the extent that it held that the conclusions of the 1028 hearing court concerning the issue of imminent risk to the children were not dispositive of the ultimate determination on the abuse and neglect petitions (see Matter of Jacob P., 37 AD3d 836, 838 [2007]; Matter of Toni G., 8 AD3d 379, 380-381 [2004]; Matter of Bobby M., 103 AD2d 777, 779 [1984]). However, contrary to the motion court’s ruling, the father properly tendered the sworn testimony of the witnesses at the 1028 hearing in support of his motion, and the findings of fact by the hearing court. Essentially, the father’s credible testimony established that he and the child entered their apartment, passed through the kitchen where Maide M., a woman who, together with her family, shared the apartment with the child and his parents, was cleaning, and then entered the bedroom adjoining the kitchen. A minute or two later, as the father was making the bed, he observed the child crawl out of the bedroom and into the kitchen. The father believed that the child was on his way into the living room to watch television with two other children in the apartment, as was the child’s custom. Two to three minutes later, the father heard the child scream, at which time the father immediately ran into the kitchen and observed Maide M. putting water on the child’s face. The father tried to calm the child, and immediately took the child to the mother who was down the block at a laundromat. The parents then immediately brought the child to the local hospital. A physician who examined the child caused the child welfare agency to be called and an investigation ensued. The physician testified that the child had a burn on his face, which appeared to be consistent with a “hot liquid . . . falling from above and landing on his head” or “being poured” from over the child’s head and “running down” his face. The father brought a bottle of cleaning fluid that he thought might have caused the burn. Contrary to his belief, the bottle did not [898] contain a caustic liquid and was ruled out as a cause of the burn. The investigators also determined that Maide M. kept a thermos of boiling water on the table or counter in the kitchen which she reported was used for making formula. Based upon the admissible evidence at the 1028 hearing, the hearing court (Richardson, J.), in an order dated March 17, 2005, made the following findings of fact: “It is clear from the credible evidence adduced at th[e] hearing, that neither Flor M[.] nor Eric G[.] harmed the child Erick. The mother was at the laundromat when the child Erick was injured, and the father Eric G[.], while present in the home, was not present in the room at the time the child was burned. [The father’s] testimony was credible that Ms. M[.] was the only one in the room when the child was injured . . . Ms M[.] reported to the child welfare authorities and police authorities that she was the one who first saw the child sifter he was injured, and that [ ] she and the child were sdone in the room when the child was injured.” Family Court Act § 1046 (a) (ii) permits an inference to be drawn so as to establish a prima facie case of abuse or neglect against the parents or other csiretakers of a child when the child suffers an injury which would not ordinarily occur in the absence of an act or omission of the caretakers (see Matter of Philip M., 82 NY2d 238, 243 [1993]; Matter of Ashley RR., 30 AD3d 699, 700 [2006]). Clearly, the testimony of the physician as to the mechanism of the burn was sufficient to permit the statutory inference. It was then incumbent on the parents to rebut the petitioner’s prima facie case (see Matter of Philip M., 82 NY2d at 244; Matter of Anthony R. C., 173 AD2d 623, 624 [1991]). However, the agency retains the burden of proving abuse and neglect by a preponderance of the evidence (see Matter of Philip M., 82 NY2d at 244; see also Family Ct Act § 1046 [b] [i]). Article 10 of the Family Court Act is a “fault based” statute (Matter of Philip M., 82 NY2d at 243). The findings of fact and the credible evidence adduced at the hearing, including the father’s credible testimony as corroborated by the other evidence discovered by the investigators, all of which was submitted in support of the motion for summary judgment, was sufficient to rebut the statutory inference of fault against the father and to establish that the injury “could reasonably have occurred accidentally” (Matter of Philip M., 82 NY2d at 244; see Matter of Eric G., 99 AD2d 835 [1984]; see also Matter of Vincent M., 193 AD2d 398, 403 [1993]). Moreover, the evidence provided a sufficient factual basis for the father’s inability to explain how the child was injured. He did not know how the child was [899] injured because he was making the bed in the bedroom and was not in the presence of the child at the moment the child was injured in the kitchen. Since the evidence submitted by the father in support of his motion for summary judgment was sufficient to rebut the statutory inference and to establish, prima facie, that his conduct was neither negligent nor abusive (see Family Ct Act § 1046 [a] [i], [ii]), the burden shifted back to the petitioner to demonstrate the existence of a triable issue of fact (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; see generally CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition, the petitioner failed to set forth any evidentiary proof to establish the existence of a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Rather, the petitioner merely submitted an affirmation of counsel who argued that the statutory inference applied. Under these circumstances, were we to permit the petitioner to rely solely on the statutory inference to defeat the motion for summary judgment, as the dissent would have us do, we would be elevating the statutory inference to an irrebuttable presumption in the face of a motion for summary judgment. In light of the foregoing, the father’s argument that Family Court Act § 1046 (a) (ii) is unconstitutional as applied to him has been rendered academic. Miller, J.E, Skelos and McCarthy, JJ., concur.