The opinion of the court was delivered by: Jeanette Ruiz, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This child fatality case involves the death of 19 month old Hailey G. on August 10, 2007. Following the plea convictions of Marlene M., the respondent mother (hereinafter "RM") and Edwin G., the person legally responsible for Hailey G. and the biological father (hereinafter "PLR/RF") of Yamillette G.,*fn1 of Manslaughter in the 2nd and 1st degrees respectively, the Administration for Children's Services (hereinafter "Petitioner") filed the instant motion on August 6, 2008, for an order of summary judgment pursuant to Civil Practice Law and Rules (hereinafter "CPLR") section 3212. Based upon the criminal convictions of the respondents, Petitioner's motion seeks findings of abuse and severe abuse of the subject children, Yamillette and Hailey, within the meaning of the Family Court Act (hereinafter "FCA") sections 1012(e), 1051(e) and Social Service Law (hereinafter "SSL") section 384-b (8)(a)(iii) and (b).*fn2The issue presented by Petitioner's motion for summary judgment is whether findings of severe abuse and derivative severe abuse, pursuant to SSL section 384-b(8), can be entered as to PLR/RF whereas here, he is not the "parent" of the child whose death he has been criminally convicted of causing, though he is the "parent" of the deceased child's half-sibling.
On August 7, 2007, Petitioner filed a severe abuse petition against RM and PLR/RF on behalf of Hailey and her two (2) month old half-sibling, Yamillette.*fn3The petition alleged Hailey was admitted to the Richmond University Medical Center with a diagnosis of severe trauma to the head (i.e., fractured skull and bleeding of the brain), a punctured right lung and bruising to her left eye, and that she had to undergo emergency surgery to drain the blood from her brain and fluid from her lungs. It further alleged the likelihood of her survival was very low and that respondents were unable to provide the medical staff with an explanation consistent with the nature and extent of her injuries. The petition included an allegation of derivative abuse as to Hailey's half-sibling, Yamillette.*fn4
PETITIONER'S MOTION FOR SUMMARY JUDGMENT
In support of the motion for summary judgment, Petitioner attached the following documentary proof:
A. An Oral Report Transmittal (hereinafter "ORT") dated August 7, 2007, from a mandated reporter, an EMS/EMT worker, and an ORT dated August 13, 2007, from another mandated reporter, a Richmond University Medical Center social worker;
B .A copy of the Severe Abuse Petition, dated August 7, 2007, filed against RM and PLR/RF;
C.A duly certified and delegated medical record for Hailey from Richmond
University Medical Center;
D.A certified Report of Autopsy, dated August 13, 2007;
E.Certified copies of the indictments of respondents;
F.Certificate of disposition indictment in the Matter of People v. M. Medina (RM);
G.Certified transcript of Supreme Court, County of Richmond, plea proceeding, dated March 27, 2008;
H. Certificate of disposition indictment in the Matter of People v. E. Garcia
I.Certified transcript of Supreme Court, County of Richmond, plea proceeding, dated March 28, 2008.
The attorney for the children filed an Affirmation in Support of Petitioner's motion for summary judgment, dated October 21, 2008. RM filed a Reply Affirmation to the motion, dated October 26, 2008, and PLR/RF filed an Affirmation in Opposition to the motion, dated November 13, 2008. Petitioner filed a Reply to PLR/RF's Affirmation in Opposition, dated December 5, 2008.
In her Reply Affirmation to the motion for summary judgment, RM does not dispute that FCA section 1012, supports a finding of abuse against her with respect to the deceased child, Hailey, based upon her plea conviction of Manslaughter in the 2nd degree. Nor does RM contest that the court has authority to enter a derivative finding against her as to the surviving child Yamillette. RM does, however, maintain that the court should enter a finding of derivative neglect against her as to the child Yamillette and not a finding of derivative abuse. Finally, RM asserts Petitioner's application for a finding of severe abuse pursuant to SSL section 384-b (8) as to both subject children should be denied.
In his Affirmation in Opposition, PLR/RF admits he recklessly caused the death of Hailey and does not contest that he was a "person legally responsible" of the deceased child. Further, he concedes that as a PLR, and based upon his plea conviction of Manslaughter in the 1st degree, a finding of abuse against him for the death of Hailey, pursuant to FCA section 1012(e)(ii), is warranted.
PLR/RF contends, however, that the portion of Petitioner's motion that seeks a finding of severe abuse and derivative severe abuse against him under SSL section 384-b(8) is without merit. He argues that a finding of severe abuse as set forth in SSL section 384-b(8)(a)(i) is explicitly limited to the "parent" of an abused child and that unlike the more expansive definition of an abused child as set forth in the FCA, which is explicitly applicable to a "parent or other person legally responsible", a finding of severe abuse under SSL cannot be entered against him because he is not a parent of the deceased child. Relying on the Court of Appeals decision In the Matter of Alijah C., 1 NY 375 (2004), PLR/RF argues that the omission of the language "person legally responsible" within SSL section 384-b is not an oversight but rather reflects the clear ...