New York Family Law Blog
On June 9, 2009, the Administration for Children’s Services (ACS) filed a petition against Respondent Mother alleging she had abused and neglected her daughter. On June 8, 2009, a physician at the Medical Center reported that the child was brought to the hospital by EMS after Respondent found the child in an abnormal sleeping position and when he repositioned the child he had an abnormal pulse. A New York Family Lawyer said the child was brought to the hospital at 4:53 p.m. at which time he was pulse-less and all attempts to revive the child were unsuccessful; the child was pronounced dead at 6:30 p.m. The medical examiner reported that the official cause of death for the child is whiplash, shaking and blunt impacts of the head with subarachnoid and subdural hemorrhages. The child’s death has been ruled a homicide.
A New York Custody Lawyer said that, respondent-mother admitted to ACS ESC and Police at the 47th precinct that on June 8, 2009, the child, woke up around 1:00 p.m. and was fussing and crying and didn’t want to sleep. The Respondent mother admitted that she was stressed out and tired and that the Respondent-mother shook the baby forcefully, several times at which point the baby stopped crying and the Respondent mother put him back in bed to sleep.
A New York Custody Lawyer said that, in its Summation dated November 7, 2011, ACS stated that it has presented clear and convincing evidence that Respondent Mother acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven “aggravated circumstances” and that the infant was a “severely” abused child as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a), and that Respondent Mother failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as defined in Social Services Law 384-b (8) (a) as to the subject child. Further, based on the clear and convincing evidence of the heinous nature of Respondent Mother’s abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist Respondent Mother in reunification with the surviving child.
Bronx Family Lawyer said that, Respondent Mother stated that Petitioner ACS failed to allege derivative abuse of the child and it would be procedurally improper for the court to enter such a finding in the absence of such an allegation, and the petition should be dismissed. Further, Petitioner ACS failed to offer testimony from a medical doctor or expert regarding the cause of infant fatal injuries. Respondent Mother stated that ACS has failed to prove that the infant was in the exclusive care of Respondent Mother at the time of his injuries or that the fatal injuries were the result of Respondent Mother’s intentional conduct, and, thus, has failed to establish by clear and convincing evidence the key elements of severe abuse as defined by Social Services Law § 384-b (8) (a) (i).
The issues in this case are whether the subject child is a derivatively severely abused child based on the aggravated circumstances of the events that led to the death of her sibling, infant, as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a) (i), and whether reasonable efforts to reunite the surviving child with Respondent Mother are required or can be terminated in accordance with Family Court Act § 1039-b (b) (1).
The court in deciding the case cited the provisions of Social Service Law § 384-b (8) (a) defines the term “severely abused” as a ground for the termination of parental rights. The legislature expressly incorporated this term in the definition of “aggravated circumstances” and made it applicable to child protective proceedings. A Nassau County Family Lawyer said the legislature acted “to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children”. The legislature amended Article 10 of the Family Court Act to permit the court to make a finding of “severe abuse” in a child abuse proceeding, based on the standard of clear and convincing evidence, and made such a finding admissible in a proceeding to terminate parental rights. The legislature also authorized the court to determine whether “reasonable efforts” to reunite the child and parent should continue to be required. If the court determines that such efforts are no longer required, ACS or the foster care agency may immediately file a petition to terminate parental rights. Moreover, “where a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section”.
A Nassau County Child Custody Lawyer said the respondent Mother has argued that the petition fails to state a cause of action as to the derivative abuse and severe abuse of the child, and should be dismissed.
Respondent Mother contended that ACS failed to include the allegation of derivative abuse and derivative severe abuse as to the child and never sought leave to amend the petition to add that allegation or to add as a subject child. ACS named as the subject child of the petition, and on the face of the petition, in bold face font, there is notice that a finding that a child is an abused and neglected child as defined in Social Services Law § 384-b, by clear and convincing evidence, could “constitute a basis to terminate parental rights.” This notice applied to the subject child of the petition, and was based on the allegations in the petition, which delineated the severe abuse that resulted in the death of her sibling. Moreover, the court notified counsel and parties on more than one occasion that the standard of clear and convincing evidence would be applied in this matter and the court would consider a finding of severe abuse as to the subject child based on the allegations in the petition. Therefore, the court finds Respondent Mother’s argument to be without merit.
In this matter, it was clear that the allegations of derivative abuse and severe abuse applied to the child. Although the agency can proceed on behalf of a subject child whose death is alleged to be the result of the acts of a parent, and while it may be better practice to name the deceased child as a subject child, there is no requirement that the deceased child be named in the caption of the petition. Further, if Respondent Mother is contending that she was not given proper notice that the alleged “severe abuse” of the infant would be a basis for a finding of derivative abuse and severe abuse as to, there is no basis for such a contention. Respondent Mother was on notice of the allegations that the death of was the result of abuse she inflicted on the child and that the evidence put forward by ACS would be the basis for a finding of derivative abuse and severe abuse of the child. Respondent Mother had full opportunity to review the evidence prior to trial, cross examine all of the witnesses, challenge the evidence, and present witnesses and evidence on her own behalf. At no time during the proceeding did Respondent Mother claim that she was not given sufficient notice of the allegations against her, nor did she claim that she did not have sufficient time to respond to the allegations.
Accordingly, pursuant to Family Court Act § 1051 (b), which allows the court to conform the pleadings to the proof, the court amends the petition to include the deceased child as a subject child and amends the allegations in the petition to conform with the proof of abuse and severe abuse as to the infant and the derivative abuse and severe abuse as to the child.
In this matter, the threshold inquiry is whether deceased infant is an “abused child.” The Family Court Act defines an abused child, in pertinent part, as follows: “Abused Child’ means a child less than eighteen years of age whose parent or other person legally responsible for his care: (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.
Petitioner ACS has established through documentary evidence, the Medical Examiner’s Autopsy Report dated June 9, 2009, that the infant suffered pervasive, inflicted injuries that created a substantial risk of death and which ultimately caused his death. The infant’s internal injuries included: a subarachnoid hemorrhage, bleeding in the area between the brain and the thin tissues that cover the brain, and a subdural hemorrhage, bleeding due to a rupture of blood vessels in the space between the surface of the brain and the thin layer of tissue that separates the brain from the skull, which resulted in “traumatic brain injury.” The Medical Examiner found that the infant sustained extensive abrasions and contusions over his entire body. The Medical Center Emergency Room’s report of a CAT scan and retina exam of the deceased infant was included in the autopsy report. It found bleeding in the infant’s brain indicative of the “shaken baby syndrome.” These medical findings and determinations were entered into evidence pursuant to Family Court Act § 1046 (a) (iv) and (v). The court finds that the medical evidence in this matter created a prima facie case of child abuse against Respondent Mother. Respondent Mother presented no evidence whatsoever to overcome the presumption of abuse.
Respondent Mother contended that ACS failed to show that the child sustained physical injury or “serious physical injury” as defined in Penal Law § 10.00 (10), and therefore is barred from a derivative finding of severe abuse as to. However, Family Court Act § 1046 (a) (i) provides that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent.” The statute does not require proof of physical injuries with respect to siblings of an abused child. As the concern is the skewed family dynamic, it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child.
In the instant case, this court finds that the parental defects that led to Respondent Mother’s heinous acts against infant continue to exist and her impaired parental judgment create a substantial risk of harm for the surviving sibling in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the child. The final element of the charge of severe abuse, set forth in Social Services Law § 384-b (8) (a) (iv), requires Petitioner ACS to submit proof that “the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and such efforts have been unsuccessful and are unlikely to be successful in the foreseeable future”. Based on the numerous reports submitted to the court throughout this proceeding from ACS and Cardinal McCloskey Services and the report from the subject child’s therapist, dated March 18, 2011, in evidence as Attorney for the Child’s Exhibit a, the court finds that ACS and Cardinal McCloskey Services have made diligent efforts to encourage the mother-child relationship.
The court finds that continued reunification efforts are unlikely to be successful in the foreseeable future and that such efforts will be detrimental to the best interests of the child. Therefore, based on the clear and convincing evidence of the heinous nature of infant’s death caused by Respondent Mother, which supports a finding of aggravated circumstances of “severe abuse” of the infant, and a derivative finding of the severe abuse of the subject child, the Court terminates the requirement that the agency make further diligent efforts toward reunification of the child and Respondent Mother. The court relieves ACS and the foster care agency of the duty to continue such efforts. Accordingly, for all the reasons stated herein, the court finds that Petitioner ACS has met its evidentiary burden of proving by clear and convincing evidence that Respondent Mother subjected the infant to the aggravated circumstance of severe abuse pursuant to Family Court Act § 1012 (j), and, as such, the infant was a severely abused child as defined in Social Services Law § 384-b (8) (a) (i) and, by clear and convincing evidence, finds that ACS has demonstrated that his surviving sibling, subject child is, derivatively, a severely abused child. The court grants Petitioner ACS’s motion and orders that reasonable efforts to reunify the child with Respondent Mother are no longer required.
Abuse is a ground for termination of parental rights. If a child is a victim of abuse and neglect, seek the assistance of a Bronx Abuse and Neglect Attorney or Bronx Family Attorney in order to divest the custody of the subject child to its abusive parents. Call us at Stephen Bilkis and Associates for free legal advice.