Opinion
14531, 14530, 14529, 14528, 14527
03-17-2015
In re VIVIENNE BOBBI–HADIYA S., A Dependent Child Under the Age of Eighteen Years, etc., Makena Asanta Malika McK., et al., Respondents–Appellants, Administration for Children's Services, Petitioner–Respondent. In re Vivienne Bobbi–Hadiya S., A Dependent Child Under the Age of Eighteen Years, etc., Makena Asanta Malika McK., et al., Respondents–Appellants, Catholic Guardian Society and Home Bureau, Petitioner–Respondent.
Larry S. Bachner, Jamaica (Larry S. Bachner of counsel), for Makena Asanta Malika McK, appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for Charles Bernard S., appellant. Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for Administration For Children's Services, respondent. MaGovern & Sclafani, Mineola (Joanna M. Roberson of counsel), for Catholic Guardian Society and Home Bureau, respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Larry S. Bachner, Jamaica (Larry S. Bachner of counsel), for Makena Asanta Malika McK, appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for Charles Bernard S., appellant.
Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for Administration For Children's Services, respondent.MaGovern & Sclafani, Mineola (Joanna M. Roberson of counsel), for Catholic Guardian Society and Home Bureau, respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
SWEENY, J.P., RENWICK, SAXE, MANZANET–DANIELS, GISCHE, JJ.
Opinion Final order of disposition, Family Court, New York County (Stewart H. Weinstein, J.), entered on or about July 9, 2013, which permanently terminated the mother's and father's parental rights, and committed the subject child to the joint custody of the Commissioner of Social Services and Catholic Guardian Society and Home Bureau (Catholic Guardian) for the purpose of adoption, and order of fact-finding, same court (Rhoda J. Cohen, J.), entered on or about November 4, 2011, which found that the mother and father severely abused, and abused and neglected, their child, unanimously affirmed, without costs. Appeals from orders entered on or about August 3, 2012, and on or about August 7, 2012, unanimously dismissed, without costs, as superseded by the appeal from the final order, and as abandoned, respectively.
The record supports Family Court's determination that there was clear and convincing evidence that both parents severely abused the subject child on the basis that the father recklessly caused her injuries under circumstances evincing a depraved indifference to human life, and the mother recklessly allowed such injuries to be inflicted under circumstances evincing a depraved indifference to human life (Family Ct. Act § 1051[e] ; Social Services Law § 384–b[8][a] ).Expert testimony established that the then three-month-old infant's four fractured ribs, fractured collarbone, fractured femur, and subdural hematomas resulted from being squeezed, shaken, and possibly thrown. It is undisputed that the father was her primary caretaker, as the mother worked outside the home, and that the child twice needed emergency assistance while in his sole care. Moreover, the father's failure to testify warranted drawing the strongest adverse inference against him (Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ). Other accidental causes and diseases were ruled out as explanations for the child's severe injuries, and no other explanation was provided by the parents. The father's prior plea to manslaughter for recklessly killing his two-month-old son under similar circumstances established that he was aware of and consciously disregarded the risk that shaking the subject child could seriously injure her (Matter of Dashawn W. [Antoine N.], 21 N.Y.3d 36, 49, 970 N.Y.S.2d 474, 992 N.E.2d 402 [2013] ).
The mother knew of the father's earlier manslaughter conviction but left the child in his care. Even if she could have initially reasonably believed that he was innocent, or have placed little weight on a much earlier manslaughter conviction, she never reevaluated her beliefs, even when he was convicted of a violent assault, and a related perjury conviction, which demonstrated his ability to misstate material facts. Nor did she reevaluate his suitability as a caregiver when the subject child twice required emergency assistance within months, while in his care, and repeatedly appeared lethargic and vomited when in his care. She thus acted recklessly by leaving the child in the father's care and allowing the abuse to be inflicted. Moreover, the Family Court properly based its findings on indirect evidence, and the parents' inability to explain the child's injuries, which were deemed nonaccidental by the expert (see Matter of Dashawn W., 21 N.Y.3d at 49, 970 N.Y.S.2d 474, 992 N.E.2d 402 ; Matter of Amirah L. [Candice J.], 118 A.D.3d 792, 988 N.Y.S.2d 200 [2d Dept.2014] ).
Where the child was already examined and her injuries documented by x-rays, an MRI, and skeletal exams, where other causes of her injuries were ruled out by tests and exams, and where she even had a hole drilled in her skull to alleviate her head injuries, the Family Court providently exercised its discretion in denying the mother's motion for yet another independent medical examination of the child (Family Ct Act. § 1038[c] ; Matter of Jessica R., 78 N.Y.2d 1031, 1033, 576 N.Y.S.2d 77, 581 N.E.2d 1332 [1991] ; see also Family Ct. Act § 1027[g] ; Matter of Shernise C. [Rhonda R.], 91 A.D.3d 26, 32–33, 934 N.Y.S.2d 171 [2d Dept.2011] ).
In connection with its finding of severe abuse, the Family Court properly found that diligent efforts should be excused as to the father, in light of his manslaughter conviction and inability to explain or otherwise accept responsibility for the injuries to the subject child (Social Services Law § 384–b[8][a][iv] ; Dashawn W., 21 N.Y.3d at 54, 970 N.Y.S.2d 474, 992 N.E.2d 402 ).
The Family Court also properly concluded that diligent efforts to reunite the mother and subject child were no longer required because the mother refused to believe the father posed any risk to the child, and she continued to leave her in his sole care, which posed a threat to the child's health and safety (Family Ct. Act § 1039–b[a] ; Matter of Marino S., 100 N.Y.2d 361, 372, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert. denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ; Matter of Rayshawn F., 36 A.D.3d 429, 429–430, 827 N.Y.S.2d 52 [1st Dept.2007] ).
Finally, in the termination of parental rights proceeding, the Family Court properly granted the agency's summary judgment motion based on the prior finding of severe abuse. Such a finding is expressly admissible in a proceeding to terminate parental rights pursuant to Social Services Law § 384–b, as long as the Family Court states the grounds for its determination and makes such a finding by clear and convincing evidence, which it did here (Family Ct. Act § 1051[e] ). The mother identifies no unresolved or triable issues that would have warranted denial of summary judgment on the issue of severe abuse.
Nor was a suspended judgment warranted as to the mother, as she refused to acknowledge that the father posed a threat to the child, denied any responsibility for her own role in the abuse, and testified equivocally regarding her long term intention to remain separated from him, whereas the child was placed in a stable home with the maternal grandfather (see Matter of Jayvon Nathaniel L. [Natasha A.], 70 A.D.3d 580, 895 N.Y.S.2d 90 [1st Dept.2010] ; see also Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992] ).