Opinion
07-07-2016
In the Matter of MASON F. and Another, Alleged to be Severely Abused Children. Ulster County Department of Social Services, Respondent–Appellant; Katlin G., Appellant–Respondent. Louis F., Appellant. (Proceeding No. 1.). In the Matter of Mason F. and Another, Alleged to be Neglected Children. Ulster County Department of Social Services, Respondent–Appellant; Katlin G., Appellant–Respondent. Louis F., Appellant. (Proceeding No. 2.).
Theodore J. Stein, Woodstock, for appellant-respondent. Diana L. Kidd, New Paltz, for appellant. Daniel Gartenstein, Ulster County Department of Social Services, Kingston, for respondent-appellant. Lawrence Shelton, Kingston, attorney for the child.
Theodore J. Stein, Woodstock, for appellant-respondent.
Diana L. Kidd, New Paltz, for appellant.
Daniel Gartenstein, Ulster County Department of Social Services, Kingston, for respondent-appellant.
Lawrence Shelton, Kingston, attorney for the child.
Before: PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ.
AARONS, J. Cross appeal from an order of the Family Court of Ulster County (McGinty, J.), entered May 6, 2015, which partially granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 10, to adjudicate the subject children to be severely abused and/or neglected.
Respondent and Louis F. (hereinafter the father) are the parents of two boys (born in 2011 and 2013). In August 2014, while living with respondent and her boyfriend, the older child died due to blunt- impact injuries to his head, torso and extremities. The younger child was temporarily removed from respondent's home, and petitioner commenced these two Family Ct. Act article 10 proceedings against respondent, alleging that she neglected the children and that she severely abused the older child and derivatively severely abused the younger child by, among other things, failing to get medical attention for the older child when she was aware that he was covered in bruises and in need of medical care.
As a result of the death of the older child, the boyfriend was convicted of murder in the second degree.
Following a fact-finding hearing, Family Court determined that respondent neglected and abused the older child and derivatively neglected and abused the younger child. Family Court, however, dismissed the petition alleging severe abuse, finding that the evidence did not establish that respondent displayed an utter disregard for human life resulting in the older child's death. After a dispositional hearing, Family Court entered an order of fact-finding and disposition, which, among other things, granted custody of the younger child to the father. Respondent appeals from Family Court's order to the extent that it found that she abused the children. Petitioner and the father cross-appeal from that part of Family Court's order which dismissed petitioner's severe abuse petition.
Respondent has abandoned any claim regarding Family Court's finding of neglect and derivative neglect by not raising it in her brief (see Matter of Wendy Q. v. Jason Q., 94 A.D.3d 1371, 1372 n. 2, 943 N.Y.S.2d 255 [2012] ).
Because the father advances the same arguments as petitioner, it is unnecessary to decide whether the father has standing in this appeal (see Social Services Law § 384–b [3 ][b]; cf. Matter of Cadence SS. [Amy RR.-Joshua SS.], 103 A.D.3d 126, 127–129, 956 N.Y.S.2d 639 [2012], lv. denied 21 N.Y.3d 853, 2013 WL 1800520 [2013] ).
Addressing first the allegations of severe abuse, petitioner contends that Family Court erred in dismissing the severe abuse petition. We agree. A determination of severe abuse requires that “ ‘the child [is] 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 [Penal Law § 10.00(10) ]’ ” (Matter of Nicholas S. [John T.], 107 A.D.3d 1307, 1311, 968 N.Y.S.2d 654 [2013], lv. denied 22 N.Y.3d 854, 2013 WL 5716180 [2013], quoting Social Services Law § 384–b [8 ][a][i] ). A depraved indifference is “ ‘best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply [does not] care whether grievous harm results or not[, and which reflects] wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts' ” (Matter of Dashawn W. [Antoine N.], 21 N.Y.3d 36, 48, 970 N.Y.S.2d 474, 992 N.E.2d 402 [2013], quoting People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005] ). A finding of severe abuse must be based upon clear and convincing evidence (see Family Ct. Act §§ 1046[b] [ii] ; 1051[e]; Matter of Rebecca KK., 61 A.D.3d 1035, 1037, 876 N.Y.S.2d 217 [2009] ; Matter of Julia BB. [Diana BB.], 42 A.D.3d 208, 216, 837 N.Y.S.2d 398 [2007], lvs. denied 9 N.Y.3d 815, 849 N.Y.S.2d 31, 879 N.E.2d 171 [2007] ), and issues of credibility are “ ‘entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record’ ” (Matter of Tiarra D. [Philip C.], 124 A.D.3d 973, 974, 1 N.Y.S.3d 492 [2015], quoting Matter of Justin CC. [Tina CC.], 77 A.D.3d 1056, 1057, 909 N.Y.S.2d 771 [2010], lv. denied 16 N.Y.3d 702, 2011 WL 135182 [2011] ).
A deceased child may be the subject of a severe abuse petition (see Matter of Alijah C., 1 N.Y.3d 375, 379–380, 774 N.Y.S.2d 483, 806 N.E.2d 491 [2004] ).
In 2013, the Legislature amended Family Ct. Act § 1051(e) so that a “diligent efforts” finding is no longer a required element of a finding of severe abuse in the context of a Family Ct. Act article 10 proceeding (see L 2013, ch 430, § 1; Matter of Amirah L. [Candice J.], 118 A.D.3d 792, 794, 988 N.Y.S.2d 200 [2014] ).
The evidence from the fact-finding hearing establishes that approximately two weeks after respondent and her boyfriend started dating, the boyfriend moved in with respondent and her children. The boyfriend took care of the children during the day while respondent worked. Respondent testified that the boyfriend “looked like a good father with [the children],” but she also admitted that the extent of the older child's bruising was abnormal once they started living together. More critically, in the days before the older child's death, respondent acknowledged that it looked as though the older child had a “stick up his ass” when he walked. Respondent was aware that the older child's eating was abnormal and that he was sleeping more. She even posted on her social media account that he was “horribly sick.” Respondent was likewise aware of bruises on the older child's eye, stomach, groin and back and that he had vomit of a black color and a bowel movement that consisted of a blood clot.
Other witnesses also testified to the extensive and serious injuries that the older child sustained prior to his death. One witness, who has a child with the boyfriend, testified that she met with the boyfriend two days prior to the older child's death, at which time the boyfriend told her that the older child looked like he had been hit by a bus. This witness testified that upon seeing the older child, he was pale, had a black eye, had three bruises on one cheek and one bruise on the other, had a cut lip, and had bruises on his arms and legs. The police officer and paramedic, each of whom responded to the emergency call regarding the older child, observed that, at the time of the child's death, the older child had dried blood on his lips and had bruises all over his body, including on his back, right gluteus, arms, legs, torso, chest and abdominal area, genital and pelvic area, head and face. The paramedic observed that the older child was found with a clenched fist and constricted eyes suggesting that he had experienced pain in the moments prior to his death. She also testified that the newer bruises did not appear to be accidental, and that the bruise on the older child's rib cage was in the shape of a hand. The chief medical examiner who performed the autopsy of the older child testified that, at the time of the older child's death, there were over 60 bruises on his body and the bruises had been inflicted at different times. The chief medical examiner also explained that the older child had sustained, among other things, a fractured rib and a severed pancreas. He further noted an older abdominal injury that had caused blood to accumulate in the older child's abdominal cavity and that would have manifested symptoms similar to a stomach virus and produced blackish-colored blood in his vomit.
In view of the foregoing evidence presented at the fact-finding hearing, we conclude that Family Court erred in dismissing the severe abuse petition. Respondent demonstrated reckless judgment and disregard for the safety and well-being of the older child by allowing the boyfriend—who she had dated for only a very brief period of time and knew went out at night to procure illegal drugs—to care for her children and, significantly, by permitting him to continue to care for her children and inflict further abuse after the older child had sustained serious and an abnormal degree of bruising, which she unreasonably attributed to accidental causes and the explanations provided by the boyfriend (see Matter of Nyheem E. [Jamila G.], 134 A.D.3d 517, 518, 23 N.Y.S.3d 9 [2015] ; Matter of Vivienne Bobbi–Hadiya S. [Makena Asanta Malika McK.], 126 A.D.3d 545, 546, 5 N.Y.S.3d 418 [2015], lvs. denied 25 N.Y.3d 909, 1064, 2015 WL 3555575 [2015] ; Matter of Kayden E. [Luis E.], 88 A.D.3d 1205, 1206–1207, 931 N.Y.S.2d 744 [2011], lv. denied 18 N.Y.3d 803, 2012 WL 16246 [2012] ). To that end, respondent was aware, or should have been aware, of the older child's numerous injuries indicative of extensive, repeated and accumulating abuse.
Equally troubling is respondent's failure to seek professional medical treatment for the older child notwithstanding her knowledge of numerous visible injuries. Even when respondent observed the older child having a bowel movement that consisted of a blood clot, combined with her observation of black fluid in his vomit, she still did not seek any medical attention for him, which the chief medical examiner explained was necessary with the presentation of those symptoms. Notably, respondent's coworker, grandmother and even the boyfriend had discussions with respondent about bringing the older child to a doctor, but respondent, at most, only contemplated doing so. She ultimately refused because of her concern that child protective services was actively investigating her in an open case (see Matter of George S. [Hilton A.], 135 A.D.3d 563, 564, 24 N.Y.S.3d 585 [2016] ; Matter of Nyheem E. [Jamila G.], 134 A.D.3d at 518, 23 N.Y.S.3d 9 ; Matter of Amirah L. [Candice J.], 118 A.D.3d 792, 794, 988 N.Y.S.2d 200 [2014] ). In other words, any failure of respondent, as a layperson, to realize the extent of the older child's injuries played no role in her choice not to seek medical attention for him. Rather, the driving force behind her decision was to protect herself and avoid further scrutiny from child protective services. While respondent justified her reluctance to seek medical attention due to her belief that the older child was anemic and that he bruised easily, the record is devoid of any evidence to substantiate that claim. By placing her interests above the health, well-being and medical needs of the older child, who, at that young age, depended and relied on respondent for care, we conclude that there was clear and convincing evidence to support a finding that respondent acted with a disregard for human life that resulted in serious injury to the child and that the older child was severely abused by respondent (see Matter of Dashawn W. [Antoine N.], 21 N.Y.3d at 49, 970 N.Y.S.2d 474, 992 N.E.2d 402 ;
Matter of George S. [Hilton A.], 135 A.D.3d at 564, 24 N.Y.S.3d 585 ; Matter of Amirah L. [Candice J.], 118 A.D.3d at 794, 988 N.Y.S.2d 200 ).
We also agree with petitioner's allegation that the younger child was derivatively severely abused. A finding of derivative severe abuse “may be 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” (Matter of Marino S., 100 N.Y.2d 361, 374, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003] [internal quotation marks and citation omitted], cert. denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ). The evidence, including testimony from a pediatrician who examined the younger child three days after the older child died, reflects that the younger child had a severe ear infection that required medical care, in addition to “very inflamed nipples” and a “suction injury or hickey” below the right nipple, each of which were patently severe enough to be indicative of trauma and possible sexual abuse. In view of this evidence, the severity and extent of the older child's injuries and respondent's failure to obtain medical care for the older child, we find that the record as a whole demonstrates by clear and convincing evidence fundamental flaws in respondent's understanding of the duties of parenthood that are so profound as to place any child in her care at substantial risk of harm (see Matter of Marino S., 100 N.Y.2d at 374–375, 763 N.Y.S.2d 796, 795 N.E.2d 21 ; Matter of Dawn M. [Michael M.], 134 A.D.3d 1197, 1198, 21 N.Y.S.3d 436 [2015] ; Matter of Brayden UU. [Amanda UU.], 116 A.D.3d 1179, 1182, 984 N.Y.S.2d 434 [2014] ).
Finally, in light of our findings of severe abuse and derivative severe abuse, which, under the circumstances of this case do not require remittal for a new dispositional hearing (cf. Matter of Dashawn Q., 112 A.D.3d 1250, 1253, 976 N.Y.S.2d 742 [2013] ), we conclude that Family Court's determination that the older child was abused and the younger child was derivatively abused was amply supported by a preponderance of the evidence and, thus, we see no basis to disturb such determination (see Matter of Nyheem E. [Jamila G.], 134 A.D.3d at 519, 23 N.Y.S.3d 9 ; Matter of Ashlyn Q. [Talia R.], 130 A.D.3d 1166, 1169, 13 N.Y.S.3d 630 [2015] ; Matter of Loraida R. [Lori S.], 97 A.D.3d 925, 927, 948 N.Y.S.2d 733 [2012] ).
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as dismissed that part of the petition in proceeding No. 1 as failed to find that respondent severely abused the subject children; petition granted to that extent; and, as so modified, affirmed.
PETERS, P.J., GARRY, ROSE and MULVEY, JJ., concur.