In re Tonita R. , 74 A.D.2d 830 ( 1980 )

In a proceeding pursuant to article 10 of the Family Court Act for an adjudication of child abuse, petitioner appeals from an order of the Family Court, Orange County, dated November 8, 1978, which, after a hearing, dismissed the petition. Order reversed, on the law and the facts, without costs or disbursements, petition granted, and it is determined that the infant is an abused child. The matter is remanded to the Family Court, Orange County, for further proceedings consistent herewith. The record contains evidence of at least four instances in which caseworkers observed bruises or welts on the child’s ankles, hands and on other parts of her body. Upon questioning, the now seven-year-old child either attributed the injuries to her mother, remained silent, or remarked that "mommy says not to tell.” An examination of the testimony of respondent’s sole witness, a caseworker employed by Family Counseling Services in Newburgh, supports the contention that respondent has supplied no explanation for the injuries and has thus failed to carry her burden of rebutting petitioner’s prima facie showing of child abuse (see Family Ct Act, § 1046, subd [a], par [ii]; see, also, Matter of Tashyne L., 53 AD2d 629). Accordingly, the petition should have been granted. We note additionally that the hearing court erred by admitting into evidence an unsigned and undated report of a doctor’s examination of the child. The report constituted inadmissible hearsay and has not been shown to satisfy the business exception requirements of section 1046 (subd [a], par [iv]) of the Family Court Act. It should therefore not have been admitted pursuant to section 1046 (subd [b], par [ii]) of the Family Court Act. Mangano, J. P., Cohalan, Martuscello and O’Connor, JJ., concur.