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Respondent mother

Respondent mother and respondent father have two minor children, a boy and a girl. Respondent mother has an eight year old girl born from another man. Respondents were not married but lived together with the three children.

One day, while respondent mother was asleep with her son in the living room of her apartment, respondent father went into the bedroom and raped the eight year old child of respondent mother, while their child, then four, slept in the same bed. Respondent mother awoke when the raped child emerged from the bedroom holding herself tightly and bleeding from her vagina. Respondent mother watched as her daughter took a shower, then wrapped the child in two towels and placed her on the bed. Instead of seeking immediate medical attention, respondent mother acquiesced in respondent father’s suggestion that they wait. Before long, however, the raped child, complaining of stomach cramps and continuing to bleed through the towels, began to vomit. After finally deciding to seek medical treatment, respondent parents began to fabricate the story that the child, while getting out of bed, had been injured by falling over a chair and being struck between the legs. As the child continued to bleed profusely, the couple concocted a story to conceal that respondent father had been present in the apartment. Respondent mother knew of a previous allegation that he had sodomized the child, resulting in an investigation by the Administration for Children’s Services (ACS). She also knew that her own mother had previously accused respondent father of sexually abusing respondent’s young sister, resulting in his arrest. Respondent mother agreed to report falsely that respondent father had been at his mother’s house when the raped child was injured, not in the apartment with her.

An action was instituted to terminate the parental rights and revoke the children’s custody from the respondents in connection with New York’s implementation of the Adoption and Safe Families Act.

Under the Social Services Law, in termination of parental rights proceedings, a foster care agency generally must demonstrate that diligent efforts at reunification have been undertaken. These provisions implement New York’s strong public policy of both keeping families together and protecting the health and safety of children.

The central issue is whether diligent efforts to reunite respondents with the children, concededly not undertaken by the foster care agency, were required.

The Court stated that New York passed the Adoption and Safe Families Act (ASFA) into conformity with a 1997 federal law of the same name, maintaining the State’s eligibility for federal funding for foster care services. New York’s ASFA overlays numerous provisions of the Social Services Law, Family Court Act and Domestic Relations Law, adding to the tangle of cross-referenced provisions. In addition to particular amendments, ASFA made explicit the law’s constant concern for prompt permanency in a child’s life, going so far as to set time frames for termination

Soon after New York’s passage of ASFA, the petitions to terminate respondents’ parental rights were amended to add causes of action for “severe abuse” pursuant to newly amended Social Services Law. The finding of aggravated circumstances dispenses with the requirement that an agency responsible for having placed the children in foster care or seeking to terminate parental rights exercise diligent or reasonable efforts to reunite the respondent with the children.

According to the court, the health and safety of the child were always the paramount concern in providing reasonable efforts to prevent placement and promote reunification. It does not represent a change in law, policy or emphasis in New York. Rather, as the Appellate Division explained, ASFA serves simply 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 in preparing an obviously unfit parent for permanent placement until a ruling can finally be sought in the subsequent termination proceeding.

The court sustained derivative findings that the respondent’s abuse of the subject child is so closely connected with the care of another child as to indicate that the second child is equally at risk.

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