On February 23, 2007, the Commissioner of the New York City Administration for Children’s Services (the Commissioner or ACS) filed related petitions under article 10 of the Family Court Act against respondents AN. and RB with respect to the four children who resided with them: five-month old J., five-year old JS N., five-year old D B., and two-year old DW. AN and RB are J’s parents, while AN is JS’s father and RB is the mother of D and DW. ACS had carried out an emergency removal pursuant to Family Court Act § 1024 the previous day, after social workers at Bellevue Hospital Center reported suspected child abuse to the Statewide Central Register of Child Abuse and Maltreatment.
The petitions in these child protective proceedings alleged that J, whom AN brought to Bellevue on the evening of February 21, 2007 – hours after he claimed that the baby screamed in a way unlike ever before – had been admitted with a “shifted and fractured collar-bone with swelling”; and that, upon further examination, hospital personnel discovered four partially healed fractured ribs. The petitions also asserted that AN “inflicted excessive corporal punishment” on JS by hitting him with a “black wire,” thereby causing “excessive welts to his body”; and that RB failed to intervene to protect him. The Commissioner sought orders determining, upon clear and convincing evidence, that these four children were severely or repeatedly abused, and, upon a preponderance of the evidence, that they were victims of abuse and neglect.
At the conclusion of the hearing, Family Court determined that AN and RB abused J “in that, while in the care of AN and RB, the child sustained fractures of the clavicle and of the left 4-7 ribs and AN and RB have not offered any credible explanation for any of these injuries and that they neglected and derivatively abused JS, and derivatively abused and neglected DW and D.
While finding that J sustained “serious physical injury, protracted, painful, and horrible injuries, Family Court nonetheless dismissed the petition insofar as it alleged severe abuse against AN. The judge believed that, in view of our decision in People v Suarez (6 NY3d 202 [2005]), severe abuse under Social Services Law § 384-b (8) (a) (i) – which requires a finding that AN acted “under circumstances evincing a depraved indifference to human life” could almost never be established unless an eyewitness testified to the manner in which the harm was inflicted. Supported by the attorney for the children, ACS appealed from Family Court’s dismissal of the claim of severe abuse; AN did not cross-appeal the judge’s findings of serious physical injury and abuse.
At the conclusion of the fact-finding phase in an article 10 proceeding, Family Court may, in addition to a finding of abuse, enter a finding of severe abuse as defined in [Social Services Law § 384-b (8) (a)], which shall be admissible in a proceeding to terminate parental rights pursuant to Social Services Law § 384-b. If the court makes such additional finding of severe abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.
Section 384-b (8) (a) of the Social Services Law, in turn, specifies that for purposes of this section [384-b], which governs termination of parental rights, a child is “severely abused” 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 or (ii) the child has been found to be a sexually abused child; provided, however, the parent must have committed or knowingly allowed to be committed one of 11 enumerated felony sex offenses; or (iii) the child’s parent has been convicted of certain felony offenses under the Penal Law, and the victim or intended victim was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or the parent of such child has been convicted under the law in any other jurisdiction of an offense which includes all of the essential elements of these crimes; and (iv) 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. 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.
In this appeal, the parties differ as to what is required to establish “circumstances evincing a depraved indifference to human life” within the meaning of Social Services Law 384-b (8) (a) (i); and whether the diligent efforts specified by subparagraph (iv) of this provision are prerequisite to a finding of severe abuse under Family Court Act § 1051 (e), or may be excused under Family Court Act §§ 1039-b and 1012 (j) or, alternatively, Social Services Law § 384-b (8) (a) (iv) itself.
ACS, joined by the attorney for the children, argues that our cases discussing “circumstances evincing a depraved indifference to human life” within the meaning of the Penal Law do not control the interpretation of the same phrase in Social Services Law § 384-b (8) (a) (i). AN, by contrast, considers “depraved indifference” to require the same showing under both statutes.
Here, AN beat or struck a baby – an especially vulnerable victim because so tiny, defenseless and unformed. And Dr. L’s testimony about the age of J’s injuries established that AN must have attacked him on at least two different occasions, separated by at least two weeks. Further, AN had to have been aware of the life-threatening risks he created when he applied brute force to J’s chest and shoulder. After all, he knew that devastating injuries ensued when he brutalized his then four-month old namesake, AN, Jr. While this prior instance of abuse was too remote in time to support a finding of repeated abuse, it reflects AN’s utter disregard for J’s life, health and well-being. Finally, AN offered unbelievable explanations for J’s injuries to medical personnel and social workers, and he did not testify at the fact-finding hearing. Thus, there is record support for the Appellate Division’s finding, based on clear and convincing evidence, that AN, acting under circumstances evincing a depraved indifference to human life, severely abused J.
At no time did ACS make diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate AN. This is undisputed. What the parties instead contest is whether this omission was permissible. The attorney for the children, joined by ACS, urges that a showing of diligent efforts is not required for a finding of severe abuse under Family Court Act § 1051 (e), while AN naturally insists otherwise. But AN also maintains that diligent efforts are incapable of being excused on the basis of severe abuse. So for very different reasons leading to diametrically opposite practical outcomes, the attorney for the children and AN both take the position that the Appellate
The attorney for the children objects that AN’s view of the interplay of the Family Court Act and the Social Services Law, which negates severe abuse as an independent basis under Family Court Act § 1039-b (b) (1) for excusing reasonable efforts, runs counter to expedite permanency for children who suffer the aggravated circumstance of severe abuse. We agree. First, we conclude that Family Court Act §§ 1051 (e) and 1012 (j) necessarily import Social Services Law § 384-b (8) (a) in its entirety.
To recapitulate, Social Services Law § 384-b (8) (a) defines a child as “severely abused” if the victim of depraved indifference abuse, or felony sex offense abuse, or other felony offense abuse and 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. 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.
Thus, for a court to find severe abuse under Family Court Act § 1051 (e), the presentment agency must demonstrate by clear and convincing evidence that the parent committed an abusive act specified in subparagraphs (i), (ii) or (iii) of section 384-b (8) (a); and diligent efforts to reunite the family were not made because detrimental to the child’s best interests; or such efforts were made but were unsuccessful and unlikely to succeed in the near term; or such efforts were not required because a court had previously determined that reasonable efforts to reunite the family were unnecessary.
The attorney for the children is surely correct that the Legislature adopted Family Court Act § 1039-b to expedite permanency planning for abused children by enabling the agency to obtain an immediate determination – during the underlying abuse proceeding – of whether it must exercise diligent efforts, without first having to expend considerable effort until a ruling [could] finally be sought in the subsequent termination proceeding.
Finally, Family Court in this case properly found that diligent efforts to encourage and strengthen the parental relationship would be detrimental to J’s best interests, in accordance with Social Services Law § 384-b (8) (a) (iv). The judge determined that, in light of AN’s abuse of AN, Jr., followed by his severe abuse of J some 14 years later, there was little prospect that AN’s chronic, long-standing violent behavior would improve anytime soon, if ever, and it was not in J’s best interests to languish in foster care in the meantime.
In situations when the parent of a child failed to exercise due diligence to advance the care and protection of the child, the state has the power to terminate parental rights upon filing the proper petition in courts on behalf of the child.
This is also true in cases where a child is a victim of abuse and/or neglected by his/her parents. The state will always be vigilant in safeguarding the rights of these fragile little children.
If you know of any incident as in the case at bar, seek the guidance of Stephen Bilkis & Associates. You may also contact us for any family related issues you have. Call us now.