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In re Yamillette G.

New York Family Court, Kings County


February 6, 2009

IN THE MATTER OF YAMILLETTE G. HAILEY G. A CHILD UNDER EIGHTEEN YEARS OF AGE ALLEGED TO BE SEVERELY ABUSED BY EDWIN G., MARLENE M., RESPONDENTS.

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.

BACKGROUND

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

(PLR/RF);

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 legislative intent to limit the scope of the statute to parents of abused children in relation to termination of parental rights proceedings and not to individuals who are not the biological parent of the abused child.

In their reply, Petitioner asserts that there is well developed case law involving Family Court, Appellate Court and Court of Appeals decisions which clearly establish and support a finding of derivative abuse in factually similar circumstances as presented in this case. Specifically, Petitioner relies in the Court of Appeals decision in Matter of Marino, 100 NY2d 361 (2003), in support of the proposition that where a derivative finding of abuse of a child is closely connected with the care of another child indicating that the second child is equally at risk, such derivative findings have been consistently sustained by the courts.

Moreover, Petitioner argues that the plain language of SSL section 384-b(8)(a)(iii) clearly refutes PLR/RF's assertion that a finding of severe abuse against him in relation to his biological child (the surviving half sibling of the deceased child) is improper. Petitioner points out that the definition of severe abuse contained in SSL section 384-b(8)(a)(iii) supports a finding of derivative severe abuse as to PLR/RF for precisely the same reasons it supports such a finding as to RM with the respect to her surviving child, Yamillette, who is the biological child of both respondents. Petitioner argues that it would be incomprehensible and absurd to conclude that SSL section 384-b(8) supports a finding of derivative severe abuse as to RM in connection to her surviving biological child, Yamillette, but not as to PLR/RF, who is the biological father of the same child.

ANALYSIS

As an initial matter, Petitioner's motion for an order of summary judgment in this child fatality case based upon documentary proof submitted, including proof of respondents' criminal convictions, is properly before this court. It is well settled law that a motion for summary judgment is appropriate in neglect and abuse proceedings and should be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing summary judgment in favor of any party. Suffolk County DSS v. James M., 83 NY2d 178 (1994). Here, there are no factual issues presented that require a trial.

The question before this court is whether a respondent, who is a "person legally responsible" as defined by the FCA and who causes the death of a child permitting a finding of abuse to be entered against him pursuant to FCA section 1012(e)(i), can also be found to have severely abused the child whose death he caused as well as derivatively severely abused the surviving child who is both the half-sibling of the deceased child and the biological child of the respondent pursuant to SSL section 384-b(8).*fn5 For the reasons set forth below, this court finds that SSL section 384-b (8)(a)(i) does not permit this court to enter a finding of severe abuse against the PLR/RF as to Hailey, but does permit this court to enter a finding of derivative severe abuse against him since he is the parent of the surviving child, Yamillette, the deceased child's half-sibling, pursuant to SSL section 384-b (8)(a)(iii).

The relevant facts in this child fatality case are not in dispute. Based on Petitioner's motion for summary judgment and the documentary evidence attached thereto, as well as the affirmation filed in support and the affirmations filed in reply and opposition to the motion, the facts are briefly summarized as follows:

A.

On August 6, 2007, PLR/RF shook Hailey and threw her in the playpen. He admitted to RM that he didn't mean to do it, that she (the child) got him upset and he could not control himself.

B.

Between August 6, 2007 and August 7, 2007 respondents failed to seek timely, professional medical attention for the child who was exhibiting significant symptoms of illness which ultimately caused her death.

C.

On August 7, 2007, respondents took Hailey to Richmond University Medical Center where she was admitted and diagnosed with severe head trauma, a punctured right lung, and bruising to her left eye. Unable to provide an explanation to hospital personnel consistent with Hailey's injuries, both respondents were arrested and charged criminally.

D.

That same day, Petitioner filed severe abuse petitions in Kings County Family Court onbehalf of the target child, Hailey, and her surviving half sister, Yamillette, as to both respondents.

E.

Hailey died of her injuries on August 10, 2007.

F.

The Medical Examiner's Report of Autopsy dated August 13, 2007, established Hailey's cause of death as "blunt impact head trauma and shaking with subdural and bilateral retinal hemorrhages, diffuse axonal injury and cerebral edema and the manner of death as homicide."

G.

On August 28, 2007, respondents were indicted in Supreme Court, County of Richmond, of various charges of Murder in the 2nd degree; Manslaughter in the 1st and 2nd degrees; Reckless Endangerment in the 1st degree; Criminally Negligent Homicide; and Endangering the Welfare of a child.

H.

On March 27, 2008, RM was convicted by a plea of guilty to the crime of Manslaughter in the 2nd degree. In her allocution, respondent mother admitted to recklessly causing Hailey's death in that between August 6th and August 7th she failed to seek timely medical attention for the child.

I.

On May 28, 2008, PLR/RF was convicted in Supreme Court, County of Richmond, by plea of guilty to the crime of Manslaughter in the 1st degree. In his allocution he admitted to recklessly causing the death of Hailey in that between August 6th, 2007 and August 7th, 2007, he created a grave risk of physical injury to the child by shaking and throwing her, thereby causing her brain injury and death.

J.

On May 15, 2008, RM was sentenced to an indeterminate period of imprisonment of two (2) to six (6) years in state prison.

K .

On June 11, 2008, PLR/RF was sentenced to a period of imprisonment of twenty-five (25) years in a state correctional facility with five (5) years of post-release parole supervision.*fn6

FCA - ABUSE/DERIVATIVE ABUSE FINDINGS

Both respondents concede that their respective criminal convictions provide this court the legal basis pursuant to the FCA to enter findings of abuse against each of them for the death of Hailey. The FCA definition of an abused child, states in relevant part, that a child is abused if the parent or other person legally responsible for the child's care 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 loss or impairment of the function of any bodily organ. FCA § 1012 (e)(i). In this case, the facts establish that both respondents are responsible for the death of the subject child, Hailey. Both were criminally convicted of Manslaughter in the 1st and 2nd degrees, respectively, and both admitted during their pleas conviction allocution their role in causing the child's death. Hence, pursuant to FCA section1012 (e)(i) this court concludes that a finding of abuse as to each respondent for the death of the subject child based on a preponderance of the evidence, is warranted. FCA § 1051(e); See FCA § 1046.

Moreover, neither respondent contests findings of derivative abuse as to their surviving child, Yamillette, based upon the FCA and existing case law. While the FCA is silent on the question of derivative neglect and abuse in a child protective proceeding, FCA section 1046(a)(i) makes clear that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect or any other child of, or the legal responsibility of, the respondent." Derivative findings in Article 10 proceedings are predicated upon a common understanding that a parent or PLR whose judgment and impulse control are so defective as to harm one child is likely to harm another child in his/her care. Matter of Custody and Guardianship of Marino S., Jr., 181 Misc 2d 264 at 276 (NY County 1999) citing Matter of Dutchess County Dept. of Social Servs. 191 AD2d 694 (2nd Dept. 1993). As such, a well developed body of case law exists outlining under what circumstances a finding of neglect or abuse of a child in a child protective proceeding may also warrant a finding of derivative neglect or abuse involving a sibling or a half-sibling of a target child. Matter of Marino S., 100 NY2d, 361 at 373 (2003); See also In Matter of Alijah C., 1N.Y. 3d 375 at 378 (2004).

It is, therefore, well settled law that whereas here, the behavior of a parent or PLR demonstrates such a fundamental flaw in her/his understanding of their parental duties and responsibilities such that any other child in their care would be at risk of harm, a finding of derivative abuse is appropriate to protect the non-target child. Matter of Dutchess County Dept. of Social Svcs. 191 A.D. 694 (1993); See also Matter of Amber C. 38 AD3d 538 (2d. Dept. 2007) and Matter of Brian T., 51 AD3d 79(2d Dept. 2008). Thus, in this case, respondents' intentional and direct actions in causing Hailey's injuries and resulting death, as well as their callousness in failing to obtain immediate medical attention for her, leaves no doubt of the extent to which their understanding of their parental duties is utterly flawed and deficient so as to render their surviving child at great risk of harm if placed in their care. Hence, this court concludes that a finding of derivative abuse against each respondent as to their surviving child, Yamillette, is fully supported by the FCA and existing case law.

SSL - SEVERE ABUSE/DERIVATIVE SEVERE ABUSE FINDINGS

Having determined that findings of abuse as to the deceased child, Hailey, and derivative abuse findings as to their surviving child, Yamillette, as to each respondent under Article 10 of the FCA are warranted in this case, the court next addresses the question of whether findings of severe abuse and derivative severe abuse under SSL section 384-b also lie as to one or both respondents herein.

The FCA statute explicitly permits the court to enter a finding of severe abuse, as defined in SSL, based on clear and convincing evidence, which shall be admissible in a proceeding to terminate parental rights. See FCA § 1051 (e) and SSL § 384-b (8 )(a) and (b). By incorporating SSL into the FCA, the legislature has made clear its intent to create a child protective system where the adjudication of a deceased child as abused or severely abused is a critical factor in the termination of parental rights proceeding as to a surviving child. Matter Alijah C., NY3d, 375 at 378. This statutory child protective framework demonstrates a legislative intent to bring deceased children within the scope of the FCA to protect the health and safety of children whose siblings have died at the hands of a parent or caretaker. Id.

SSL section 384-b (8)(a)(i) states in relevant part that a child is "severely abused" by his or her parent if the child is found to be an abused child as a result of reckless or intentional acts of the parent committed under circumstances evincing depraved indifference to human life, which results in the serious physical injury to the child as defined in subdivision ten of section 10.00 of the penal law. Here, RM's intentional act of failing to obtain needed medical care for her 19 month old daughter, knowing that her paramour had shaken and thrown the child into a playpen, demonstrates recklessness and depravity towards her child's life. On the basis of these facts, coupled with RM's felony conviction of Manslaughter in the 2nd degree conclusively establishing her culpability in the child's death, this court concludes that a finding of severe abuse pursuant to SSL section 384-b (8)(a)(i) against RM as to her deceased child by clear and convincing evidence, is warranted. Further, for these reasons as well as based upon the prior finding of neglect entered against RM in New York County Family Court regarding a non-subject child in this case, this court also concludes that a finding of derivative severe abuse as to her surviving child pursuant to SSL section 384-b (8)(a)(iii) by clear and convincing evidence, also lies.

PLR/RF argues that no authority exists to permit this court to enter a finding of severe abuse against him pursuant to SSL section 384-b (8)(a)(i) because he is not the parent of the abused child. Implicitly, he relies on the argument that he is not the parent of the abused child to support the position that a finding of derivative severe abuse cannot be entered against him pursuant to SSL section 384-b (8)(a)(i) as to the surviving child, Yamillette, who is his biological child.

It is noteworthy that "parent" is not specifically defined in SSL section 384-b with the exception to the reference in the statute that parent includes "an incarcerated parent." In Matter of Meredith DD, 13 Misc 3d 894 (2006). Additionally, in relation to the provisions of SSL pertaining to severe or repeated abuse, the term "parent" or "parents" refers to those whose consent to an adoption of the child is required pursuant to Domestic Relations Law (hereinafter "DRL"), section 111. Id. at 897; See SSL § 384-b (4)(c). Further, the existing case law that has addressed whether a finding of severe abuse pursuant to SSL section 384-b (8) lies against a respondent who is not the parent of the abuse child has held that severe abuse does not lie because there is no issue raised regarding the termination of parental rights. Id. citing Matter of K.W. v. J.D.M., 8 Misc 3d 1013; See also Matter of William S., 12 Misc 3d 1157 (2006). As such, based on the plain language of the statute and the existing case law, this court concludes that no finding of severe abuse lies against PLR/RF as to the deceased child because SSL section 384-b (8)(a)(i) defines a severely abused child as one whose "parent's" reckless or intentional acts results in serious physical injury to the child. Here, respondent is not the "parent" of the abused child.

In contrast, however, SSL section 384-b (8)(a)(iii)(A) explicitly includes in its definition of an abused child the parent of a sibling who has been convicted of homicide where the victim was another child for whose care such parent is or has been legally responsible. Specifically, the statute states, in relevant part:

"For the purposes of this section a child is "severely abused" by his or her parent if: (A) the parent of such child has been convicted of murder in the first degree as defined in section 125.27, murder in the second degree as defined in section 125.25, manslaughter in the first degree as defined in section 125.20, or manslaughter in the second degree as defined in section 125.15, and the victim of any such crime was another child of the parent; or has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child of the parent or another child for whose care such parent is or has been legally responsible " SSL § 384-b (8)(a)(iii)(A).

This particular subparagraph of SSL is but one of several that implements the legislative intent of incorporating SSL into the FCA to create a child protection framework that: 1) brings deceased children within the scope of the FCA to protect the health and safety of children whose siblings have died at the hands of a parent or caretaker, and 2) renders as a critical factor, the adjudication of a deceased child as abused or severely abused, in a subsequent termination of parental rights proceeding. Matter of Alijah C., 1 NY3d at 378. Moreover, as the Court of Appeals concluded in Marino,this subparagraph "plainly contemplates derivative findings as to a sibling." Matter of Marino, 100 NY2d at 373.

Therefore, PLR/RF's reliance on Alijah for the proposition that a finding of derivative severe abuse against him is not permitted by SSL 384-b (8), is misplaced. The plain language of the statute and the Court of Appeals' decision in Marino, which upheld the trial court's finding of derivative severe abuse against a respondent PLR based upon an abuse finding coupled with a felony sex offense against his children's sibling, fully supports a finding of derivative severe abuse against PLR/RF in this case.

Here, respondent recklessly caused the death of an innocent and helpless 19 month old child. After shaking and throwing her into a playpen, he and RM failed to seek immediate medical attention for the child and waited until the next day before taking her to the hospital. Once at the hospital, the child had to undergo emergency surgery to drain the blood from her brain and the fluid from her lungs - only to die three days later. The reprehensible nature of respondent's actions and his depraved indifference to the life of this now deceased child makes clear to this court that a finding of derivative severe abuse in connection with his biological child, Yamillette, is warranted. Based on this court's finding of abuse as to Hailey, the deceased child under the FCA, and his criminal felony plea as to her death, this court concludes that a finding of derivative severe abuse against PLR/RF as to Yamillette by clear and convincing evidence is fully supported by the FCA and SSL.

CONCLUSION

For the reasons set forth above, this court grants Petitioner's motion for summary judgment in part and enters the following orders:

A .

It is ordered that pursuant to FCA, section 1051(b), the petition filed in this child protective proceeding is amended to conform to the proof establishing RM's criminal plea of Manslaughter in the 2nd degree and PRL/RF's criminal plea of Manslaughter in the 1st degree of the subject child Hailey, and, establishing the child's cause of death as "blunt impact head trauma and shaking with subdural and bilateral retinal hemorrhages, diffuse axonal injury and cerebral edema and the manner of death as homicide."

2.

It is ordered the deceased child, Hailey, is an abused child as defined by the FCA section1012 and a finding of abuse is hereby entered as to each respondent for their reckless and intentional acts that resulted in the child's death and derivative abuse as to their surviving child, Yamillette, by a preponderance of the evidence pursuant to FCA sections 1012(e)(i), 1046(b)(i) and 1051(e).

A .

It is ordered the deceased child, Hailey, is a severely abused child as defined by SSL section 384-b(8)(a)(i) and a finding of severe abuse is hereby entered against RM as to her deceased child, Hailey, and derivative severe abuse is entered against each respondent as to their surviving child, Yamillette, by clear and convincing evidence pursuant to SSL sections 384-b(8)(a)(i) and (iii) and 384-b(8)(f)(ii)..


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