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On July 31, 1997, Raquel was asleep with her son in the living room of her apartment

On July 31, 1997, Raquel was asleep with her son in the living room of her apartment, when Marino went into the bedroom and raped Shaina, Raquel’s eight year old daughter while sleeping with Vivian, a four year old daughter of Raquel and Marino. Thereafter, Raquel awoke when Shaina emerged from the bedroom holding herself tightly and bleeding from her vagina. Raquel watched as her daughter took a shower, then wrapped her in two towels and placed her on the bed. Raquel put a sanitary pad on her but the bleeding continued. Instead of seeking immediate medical attention, Raquel acquiesced in Marino’s suggestion that they wait. Before long, however, Shaina, complaining of stomach cramps and continuing to bleed through the towels, began to vomit.

A Lawyer said that after finally deciding to seek medical treatment, Raquel and Marino began to fabricate the story that the child, while getting out of bed, sustained the injury by falling over a chair and being struck between the legs. In addition, the couple concocted a story to conceal Marino’s presence in the apartment. Raquel 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 Marino of sexually abusing Raquel’s young sister, resulting in his arrest. Raquel agreed to report falsely that Marino had been at his mother’s house when Shaina was injured, and not in the apartment with her.

Raquel next spent a period of time putting away the mattress on which Marino slept, mopping the floor and washing up the blood. Approximately two hours after she first became aware of Shaina’s injury, Raquel called for a taxicab, left with her children and brought Shaina to a clinic which is far from the hospital where she usually brings her children. Suffering from severe internal injuries and extensive blood loss, Shaina was rushed from the clinic to a hospital, where, listed as “likely to die,” she underwent surgery to repair the lacerations to her vaginal wall. Shaina remained hospitalized for nine days.

Informed by the police that Marino had confessed to raping Shaina, Raquel seated in a police car with Marino to be transported to court leaned over and kissed him, telling him that she would meet him later at his mother’s house. The three children were placed in foster care, the day after the rape. Marino ultimately pleaded guilty to the crime of rape and was sentenced to 15 years in prison. Raquel pleaded guilty to reckless endangerment based on her failure to seek help for Shaina and her false statements about the cause of the injuries, and was sentenced to one-to-three years in prison.

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

The Court, in deciding the foregoing case pronounced that it has long been the public policy of this State to keep biological families together and to require foster care agencies to exercise diligent efforts to reunite abused and neglected children with their birth parents, once rehabilitated. That critical goal remains, and careful attention must be paid to ensure it is achieved where possible. But when a child’s best interests are endangered, such objectives must yield to the State’s paramount concern for the health and safety of the child. In such extreme cases, the State’s strong interest in avoiding extended foster care limbo and expediting permanency planning may properly excuse the futile exercise of making efforts toward reuniting a family that, in the end, should not and will not be reunited. Despite respondents’ claim to the contrary, the admissible evidence adduced before the Family Court clearly and convincingly established that diligent efforts to reunite this family were not required.

In light of the heinous acts perpetrated by Marino on Shaina, and the utter disregard for the child’s life exhibited by both respondents, the contention that the Family Court erred is devoid of merit. The affirmed findings that Shaina’s health and safety have been-and would continue to be-jeopardized by respondents’ abuse are amply supported by the record, including evidence of delay in getting help and lies about the cause of injury, which placed the child’s life in grave danger.

Respondents additionally challenge Family Court’s authority to make derivative findings of severe abuse as to the two children who were not victims of the rape. According to the Court, Article 10 of the Family Court Act, which pertains to child protective proceedings, is silent with respect to derivative findings of abuse. Respondents concede, however, that indirect support for derivative findings in article 10 proceedings may be found in the evidentiary rule set forth in Family Court Act which provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.

Over the years, courts have consistently sustained derivative findings where a 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. As Family Court articulated the standard, with which we agree, derivative findings of 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”. It is additionally clear that children who are not themselves the direct targets of abuse may, in accordance with the proof, suffer damage from witnessing the severe abuse of their siblings or their nonoffending parent. Here, the four-year-old sibling was in the same bed while Marino raped Shaina.

Respondents insist that there is no statutory authority for derivative findings because, while siblings are mentioned in some of the Social Services Law subparagraphs, they are not explicitly mentioned in the particular statutory subparagraphs at issue here.

The Court likewise held that the underlying finding that a child was abused may itself be derivative, even in cases other than those involving homicide or assault. Social Services Law defines a severely abused child to include a child who has been found to be abused as a result of the parent’s actions, provided that the respondent must have committed a felony sex offense. The statute does not specify the person against whom the felony sex offense must have been committed. It does not explicitly state that the sex offense may have been committed against a sibling. But neither does it state that the sex offense must have been committed against the abused child herself. In making its derivative findings, Family Court properly construed the Social Services Law to permit a finding of severe abuse based on an abuse finding coupled with a felony sex offense against a sibling.

Lastly, the Court likewise held that the Family Court properly recognized that without derivative findings, a child who was severely abused (such that the foster care agency would thereby be relieved of its obligation to undertake diligent efforts at reunification) would be on a different permanency planning track from his or her sibling. Accordingly, the Court ordered the affirmation of the order of the Appellate Division without costs.

Sexual intercourse with a child is a form of sexual assault which is condemned. Kings Injury Attorney is here to explain your rights in case you know a child of tender age being raped by an adult. In times like this, don’t hesitate to call Stephen Bilkis and Associates.

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