New York Family Law Blog
On June 20, 2011, the Administration for Children’s Services (ACS) filed a petition against respondent mother alleging that she derivatively severely abused the subject child by committing reckless or intentional acts that evinced a depraved indifference to human life and caused serious physical injury to the subject child’s five-year-old sibling Jamar resulting in his death.
The subject child under the age of eighteen whose parent subjected the child to reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, which resulted in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law:
The fact-finding hearing commenced on November 29, 2011 and continued on December 2, 2011, December 9, 2011, December 13, 2011, March 15, 2012, March 20, 2012, March 21, 2012, April 13, 2012, and July 9, 2012.
Neither Respondent Mother nor the Attorney for the Child called any witnesses.
The doctor testified that she had been with the hospital’s medical examiner’s Office for fourteen years. On June 18, 2011, she performed an autopsy on the five years old. He did an external and an internal examination of the child’s body. The child’s body was sent to her office directly from the hospital. She received a two page report prepared by the investigator in her office.
The doctor testified that the child had over 30 contusions throughout his body. He had eight internal hemorrhages in the distal portion of the intestine including the bowel, which was lacerated, the kidney, pancreas and stomach. These hemorrhages were caused by blunt impact injury. There was a laceration to his small intestine caused by a forceful and fatal blow. The laceration caused a hemorrhage in the intestine and the contents of the intestine, including green/yellow turbid purulent fecal fluid and pus, spilled into the abdominal cavity resulting in the inflamation and peritonitis that caused the child’s death.
On June 18, 2011, Respondent Mother telephoned the doctor. He questioned Respondent Mother about the large number of recent injuries and scars she found on Jamar’s body. Respondent Mother responded that Jamar was an “active child” and he had fallen in the park the previous Tuesday which caused the injury to his cheek. He testified that the Respondent Mother’s explanation for the injury to the child’s cheek was inconsistent with the injury. The injury was a deep abrasion in a soft, recessed area and not a scrape, and therefore, was unlikely to have been caused by a child’s fall.
The issues to be determined in this matter are whether Petitioner ACS has met its burden of proving by clear and convincing evidence that the subject child Heaven is a derivatively severely abused child based on the aggravated circumstances that led to the death of her sibling, five-year-old Jamar, as defined in Family Court Act §§ 1012(j) and 1051(e) and Social Services Law § 384–b (8)(a)(i). Respondent Mother failed to testify in this matter and the court draws a strong inference against her.
The threshold inquiry in this matter is whether the deceased child is an “abused child,” and whether aggravated circumstances of “severe abuse” were present.
The Family Court Act defines an abused child, in pertinent part, as follows:
“(e) 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, or …”.
Social Services Law § 384–b defines a severely abused child as one who has been found to be abused “by his or her parent if (i) the child has been found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law” (Social Services Law § 384–b [8] [a][i] ).1Penal Law § 10.00(10) defines “serious physical injury” as a physical injury “which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” If the family court makes an additional finding of severe abuse, “the court shall state the grounds for its determination, which shall be based upon clear and convincing
“In drafting these sections [Social Services Law 384–b (8)(a) and (b) ], the Legislature clearly demonstrated an intent to bring deceased children within the ambit of the Family Court Act in order to protect the health and safety of children whose siblings have died at the hands of a parent or caretake. Clearly siblings of a child killed by abuse are within the class of children the Legislature sought to protect in enacting Social Services Law § 384–b, enhancing the protective purposes of Article 10 of the Family Court Act”
A derivative finding of severe abuse is “predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well’ “. The First Department, in reversing the family court, has held that “[a] finding of derivative abuse must be sustained where” [e]vidence of the physical abuse of one child logically supports the conclusion that the parents have a faulty understanding of the duties of parenthood’ sufficient to infer an ongoing danger to their other children”.
In the instant case, this court finds that the parental defects that led to Respondent Mother’s heinous acts against the child Jamar continue to exist and her impaired parental judgment creates a substantial risk of harm for the surviving sibling Heaven in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the child finding that respondent parent caused two-month-old infant to sustain three non-accidental bone fractures, which showed an “impaired level of parental judgment as to create a substantial risk of harm for any child” in the parent’s care). Based on the court’s finding that Respondent Mother recklessly and viciously assaulted Jamar and then took no action to relieve his suffering and obtain medical care to save his life, and, further, that she abused the child causing over 30 acute, healed and partially healed abrasions, scars and injuries all over his body, the court finds by clear and convincing evidence that Respondent Mother’s parental judgment is so defective and that she exhibits such an inability to control her angry and violent behavior that the child Heaven is likely to be severely abused by Respondent Mother. Therefore, the court makes a finding of derivative severe abuse as to the subject child Heaven based on the clear and convincing evidence of the heinous and serious physical injuries that led to the death of her sibling. These injuries were caused by the reckless acts and omissions of Respondent Mother, which evinced a depraved indifference to human life, and which continue to exist and pose an imminent and substantial risk of harm to the subject child and any child in Respondent’s care.
The Legislature expressly incorporated the definition of “severely abused” set forth in Social Service § 384–b 8(a) in the Article 10 definition of “aggravated circumstances”. In addition, the Legislature amended Article 10 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 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”.
A child of tender age should be under the custody of a parent who is able qualified to have the rightful custody. Here in Stephen Bilkis and Associates, our experienced lawyers will help you obtain custody over your children. We will represent you during the commencement until the final determination of the case.