On 20 February 2001, the subject child who was at that time 10 months old, had been hospitalized with a burn mark to her right eye, burn marks below her right cheek, a one-inch burn mark across the back of her neck, bruises and burn marks below her nose, three fractured ribs, cuts and scab marks on her hands and arms, cuts behind and inside her ears, cuts and scabs on both the soles of her feet, a circular mark on the top of her head, bruises to the left side of her face and swollen hands. A New York Family Lawyer said respondents failed to provide a reasonable explanation for the child’s injuries. The petition also noted that, in November 2000, when she was only six months old, she had sustained a dislocated and fractured elbow, and respondents failed to seek medical attention for her until two days after the injury had been sustained.
On 30 April 2002, the child was adjudicated abused under the Family Court Act after a fact-finding hearing and custody of the subject child has been removed from the parents. A Nassau County Family Lawyer said as a result, her three siblings were adjudicated derivatively abused and parental custody was also removed.
Respondents cooperated with services to reunify the family. One of the children returned home in November 2003. Thereafter, the other children returned, including the subject child, in April 2004. It was on a trial discharge after spending almost three years in foster care following findings of abuse entered against the parents.
On 9 June 2004, the Administration for Children’s Services (ACS) filed a new petition alleging that the subject child, then four-year-old, had sustained a second degree burn on her elbow, a bruise above her eye, a laceration to her lip, a bite mark to her foot, and numerous scars and scratch marks over her body; that she had been in the care of respondents who are her biological parents; and that they had no reasonable explanation for how she had sustained these injuries.
On the finding of Abuse under the Family Court Act:
Here, it was established by clear and convincing evidence that the subject child suffered injuries while in the care of her mother and father, to wit: the partial thickness burn to her elbow, bruise to her eye, scar to her foot and scratches and scars about her body. Neither of the respondents, the parents, contested that the subject child was in their care when she suffered the injuries that brought the case to court. In addition, the fact that these injuries occurred merely weeks after the subject child had been returned to her parents after suffering multiple serious injuries as an infant multiplies the seriousness of the injuries.
As a rule, risk of injury is evaluated by looking at past behavior. The subject child was removed from her parents prior to her first birthday based upon multiple fractures, burns and bruises suffered by the time she was 10 months old. At age four, in the care of respondents just a few weeks, she has suffered a partial thickness burn to her elbow, a bruise to her eye and scratches and scars over a good portion of her body. A Queens Family Lawyer said clearly, she was targeted for abuse, and is at risk for further, future abuse. And this is without mentioning the serious impact these injuries must have upon her emotional health.
Thus, by clear and convincing evidence, the subject child has suffered injuries that created a substantial risk of serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of any bodily organ. Based upon the lack of any reasonable or accidental explanation by the parents, the court finds that the parents abused the subject child; the explanations provided were not credible enough for the court to believe them.
On the findings of Derivative Abuse as to the Siblings:
Under the rules, proof of abuse of one child is admissible upon the issue of abuse or neglect of the siblings. The court finds that respondents, by virtue of the physical and emotional injuries inflicted upon the subject child, created an environment in which there was a substantial risk of physical injury 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 as to the other children in respondents’ care. The lack of parenting judgment that caused respondents to target the subject child so that she suffered the multiple injuries that brought the case before the court created a substantial risk that the other children who were in the home, as well as the after-born infants who are also before the court, could be similarly targeted or suffer the emotional trauma of watching a sibling targeted for serious physical injury. Evidence of fundamental flaws in a respondent’s understanding of the duties of parenthood such as the continuing nature of the abuse or the fact that it was accomplished by physical violence when other children were in the room can affirmatively create a substantial risk of physical injury which would likely cause protracted impairment of a non-target child’s physical and/or emotional health within the meaning of Family Court Act, thus, rendering it reasonable to conclude that the child was derivatively abused.
Henceforth, the court finds that respondents derivatively abused the subject child’s siblings.
On the findings of Repeated Abuse under the Social Services Law:
The Social Services Law provides for three requirements.
First, as stated above, the court found that respondents abused the subject child and has entered a finding of abuse pursuant to Family Court Act; as to the instant petition. Thus, the first requirement of Social Services Law is satisfied.
Second, the court took judicial notice of prior proceedings in the court with respect to respondents, that is, the finding of abuse on 30 April 2002; and the instant petition filed on 9 June 2004. This establishes by clear and convincing evidence that the subject child was adjudicated an abused child under Family Court Act within five years of the filing of the instant petition. Thus, the second requirement of Social Services Law is satisfied.
And third, judicial notice of prior proceedings in this court with respect to respondents further established that within mere weeks of the subject child’s return to the family after an extended absence during which services allegedly rehabilitated the parents to ensure that they would not abuse the subject child or any of the other children in the future, the subject child was again abused. While the government agency engaged in diligent efforts to rehabilitate respondents and strengthen the parent/child relationship, those efforts have been unsuccessful and are unlikely to be successful in the foreseeable future. Thus, the third and last requirement of Social Services Law is satisfied.
Therefore, all criteria as outlined in the Social Services Law have been satisfied and a finding that the subject child has been repeatedly abused is warranted.
On the findings of Repeated Abuse as to the Other Children:
The court finds that the Social Services Law will not permit derivative findings of repeated abuse under the terms of that statute. Thus, the court makes no findings of repeated abuse as to the other children based on a plain reading of the statute.For assistance on similar matters, contact
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