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Court Rules on Heartbreaking Child Abuse Case

A New York Criminal Lawyer said there was a child under the age of eighteen whose parent 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 impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ, or ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function or any bodily organ, and; The child was less than eighteen years of age whose physical, mental or emotional conditions has been impaired or is in imminent danger of becoming impaired as a result of the failure of her mother, and a person legally responsible for her care, to exercise a minimum degree of care in supplying them with adequate food, clothing, shelter, or medical care or providing her with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the Court within the purview of the FCA in that: 1.On June 8, 2009, a physician reported that the child was brought to the hospital after Respondent found the child in an abnormal sleeping position and when he repositioned the child he had an abnormal pulse. The child was brought to the hospital at 4:53 p.m. at which time he was pulse-less and all attempts to revive the child were unsuccessful; the child was pronounced dead at 6:30 p.m.

A New York Criminal Lawyer said that a medical Examiner reported that the official cause of death for the child is whiplash, shaking and blunt impacts of the head with subarachnoid and subdural hemorrhages. The child’s death has been ruled a homicide. A physician told that a CAT scan and retina exam had been completed on the deceased child. The retina exam indicated a bilateral hemorrhage and the CAT scan indicated hemorrhaging and a subdural hematoma which could be related to shaken baby syndrome. Later, the Respondent-mother admitted that the child, woke up around 1:00 p.m. and was fussing and crying and didn’t want to sleep. The Respondent mother admitted that she was stressed out and tired and that the Respondent-mother shook the baby forcefully, several times at which point the baby stopped crying and the Respondent mother put him back in bed to sleep. The Respondent told the Police that the Respondent-mother went to work and left the child in his care at which time he left the child in the apartment to go outside and play basketball. Respondent admitted it was not until when he went back in to the apartment that he found the child to be unresponsive. Thereafter, it was observed that the subject child to be disheveled and dirty and the subject child to have dirt under her finger nails and toe nails. ACS CPS also observed the subject child to have a large bald spot on the left side of the back of her head and her hair appeared dirty and unkempt.

A Nassau County Criminal Lawyer said that plaintiff stated that it has presented clear and convincing evidence that Respondent Mother acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. Likewise, it stated that it had proven “aggravated circumstances” and that the infant was a severely abused child as defined in Family Court Act and Social Services Law, and that Respondent Mother failed to rebut any of the evidence presented. Urging the court further to make a derivative finding of severe abuse as defined in Social Services Law as to the subject child. Further, based on the clear and convincing evidence of the heinous nature of Respondent Mother’s abuse of the infant, and stated that the court should terminate its duty to provide reasonable efforts to assist Respondent Mother in reunification with the surviving child.

The issues to be determined in this matter are whether the subject child is a derivatively severely abused child based on the aggravated circumstances of the events that led to the death of her sibling infant, as defined in Family Court Act and Social Services Law, and whether reasonable efforts to reunite the surviving child with Respondent Mother are required or can be terminated in accordance with Family Court Act.

A Queens Criminal Lawyer said the Court decides the case by defining the term “severely abused” as a ground for the termination of parental rights. The legislature expressly incorporated this term in the definition of “aggravated circumstances” and made it applicable to child protective proceedings. The legislature acted “to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramount in termination of parental rights proceedings as to surviving children” The legislature amended Article 10 of the Family Court Act to permit the court to make a finding of “severe abuse” in a child abuse proceeding, based on the standard of clear and convincing evidence, and made such a finding admissible in a proceeding to terminate parental rights. The legislature also authorized the court to determine whether “reasonable efforts” to reunite the child and parent should continue to be required. Moreover, “[w]here a court has previously determined in accordance with this chapter or the family court act that reasonable efforts to make it possible for the child to return safely to his or her home are not required, the agency shall not be required to demonstrate diligent efforts as set forth in this section”

Respondent Mother has argued that the petition fails to state a cause of action as to the derivative abuse and severe abuse of the child and should be dismissed. Respondent Mother contended that Plaintiff failed to include the allegation of derivative abuse and derivative severe abuse as to the child and never sought leave to amend the petition to add that allegation or to add the infant as a subject child. The court notified counsel and parties on more than one occasion that the standard of clear and convincing evidence would be applied in this matter and the court would consider a finding of severe abuse as to the subject child based on the allegations in the petition. Therefore, the court finds Respondent Mother’s argument to be without merit.

Moreover, the Court of Appeals in case law has upheld the family court standard that “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.

In the instant case, this court finds that the parental defects that led to Respondent Mother’s heinous acts against infant continue to exist and her impaired parental judgment create a substantial risk of harm for the surviving sibling in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the child.

Although Respondent Mother has been incarcerated since the filing of this case, petitioner attempted to work with her and ensure she has access to and information about the child. Further, the Agency has arranged for Respondent Mother to have visits through a program one to two times a month with the child while incarcerated. Respondent Mother has also enrolled in services through the New York City Department of Corrections.

In view of the aggravated circumstances that led to the death of infant, continuation of such efforts in this matter would be improper and detrimental to the best interests of the surviving child. At this point, the child has spent almost half of her young life in the care of her pre-adoptive foster mother with whom she has developed a strong bond and under whose care she has flourished. The court recognizes the public policy to keep families together and to require foster care agencies to make diligent efforts to reunite neglected and/or abused children with their families. The Court of Appeals has recognized that 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.

The child is in a non-kinship pre-adoptive foster home and her permanency goal is adoption. She was referred for and has consistently attended therapies. The report from the physician indicated that the child has been in therapy for years and that she has been consistently brought to weekly therapy sessions by her foster mother. The therapist noted the “loving” and “consistent care” the child receives in the home of the foster mother. The report stated that the child had made enormous progress during this time, moving from a severely traumatized child with severe sleep, eating and regulatory difficulties. The child displayed many significant symptoms of a child who experienced severe trauma, she was initially difficult to console, then became quiet, sullen and remote. She refused to speak or engage in appropriate activity for sometime. At this time the child is a lively, developmentally appropriate 46 month old child.

The court finds that continued reunification efforts are unlikely to be successful in the foreseeable future and that such efforts will be detrimental to the best interests of the child.

Therefore, based on the clear and convincing evidence of the heinous nature of infant’s death caused by Respondent Mother, which supports a finding of aggravated circumstances of “severe abuse” of the infant, and a derivative finding of the severe abuse of the subject child, the Court terminates the requirement that the agency make further diligent efforts toward reunification of the child and Respondent Mother. The court relieves plaintiff and the foster care agency of the duty to continue such efforts.

Accordingly, for all the reasons stated herein, the court finds that Petitioner ACS has met its evidentiary burden of proving by clear and convincing evidence that Respondent Mother subjected the infant Casimir to the aggravated circumstance of severe abuse pursuant to Family Court Act § 1012 (j), and, as such, the infant Casimir was a severely abused child as defined in Social Services Law § 384-b (8) (a) (i) and, by clear and convincing evidence, finds that ACS has demonstrated that his surviving sibling, subject child Ne-Ashia, is, derivatively, a severely abused child. The court grants Petitioner ACS’s motion and orders that reasonable efforts to reunify the child Ne-Ashia with Respondent Mother are no longer required.

It is unlikely for a mother to hurt her own child especially when the child was still in his tender years. Here in Stephen Bilkis and Associates, we protect the rights of these innocent, helpless, and unfortunate children. Our Bronx County injury Lawyers defends the rights of these children and make a person answerable for the injuries inflicted to the chlild.

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