In the Matter of Cholette W., Commissioner of Social Services, Respondent; Helen W., Appellant

In the Matter of Cholette W., Commissioner of Social Services, Respondent; Helen W., Appellant. [599 NYS2d 985] [MAJORITY] In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals from an order of disposition of the Family Court, Queens County (Kaufmann, J.), dated September 12, 1990, which, upon a fact-finding order of the same court, dated May 17, 1990, made after a hearing, finding that the child Cholette is an abused child, released the child to the custody of the mother under the supervision of the Child Welfare Administration. Ordered that the order of disposition is reversed, on the law and the facts, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed. The evidence presented by the petitioner was sufficient to establish a prima facie case of abuse. The petitioner proved that the subject infant suffered from "shaken baby syndrome” (see, Family Ct Act § 1012 [e] [i]; § 1046 [a] [ii]; Matter of Antoine J., 185 AD2d 925). Nevertheless, a finding of abuse against the mother was not based on a preponderance of the evidence (see, Family Ct Act § 1046 [b]; Matter of Desiree X., 129 AD2d 841). Under the facts of this case, the testimony by the mother was sufficient to rebut the presumption that she abused the child (cf., Matter of Antoine J., supra; Matter of Philip M., 186 AD2d 462; Matter of Christopher S. v Kathleen S., 116 AD2d 653). In light of the foregoing, we do not reach the mother’s remaining contentions. Balletta, J. P., Fiber, Ritter and Santucci, JJ., concur.