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On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse

On June 16, 2003, the Administration for Children’s Services (“ACS”) filed an abuse petition against the respondent mother, and the respondent father, with regard to their infant childEdwin.

The petition was amended against both respondents, alleging that the infant child was also a severely abused child. The petition alleged that the infant suffered rib fractures and intracranial bleeding as result of the respondent mother repeatedly grabbing him by the torso, squeezing the infant’s ribcage and shaking him violently, and dropping him, beginning in March 2003 and extending over the course of approximately three months.

On June 25, 2003, the respondent mother pleaded guilty in assaulting her infant child. A Kings Injury Lawyer said that ACS filed a motion for summary judgment, affirmations and arguments in relation thereto, the Court found, by clear and convincing evidence, that the respondent mother abused and severely abused her infant, Edwin, pursuant to the Family Court Act and Social Services Law respectively.

On January 25, 2004, the respondent mother gave birth to the subject child, Makailia C. (hereinafter called the “subject child”). ACS filed a child protective proceeding, alleging that the respondent mother derivatively abused and severely abused the subject child, whereupon the subject child was remanded to the Commissioner of ACS and a warrant was issued for the respondent mother to produce subject child.

Thereafter, the respondent mother was involuntarily returned on the warrant, a Lawyer said that ACS gave her notice that it intended to prove that the subject child was a severely abused child, by clear and convincing evidence, and that such a finding could constitute a basis to her terminate parental rights pursuant to the Social Services Law.

Pursuant to ACS’s motion to terminate reasonable efforts, affirmations, an evidentiary hearing held thereupon, the Court entered a finding that no reasonable efforts were required to be made to return Edwin to respondent mother. The Court determined that reasonable efforts would not be in the best interests of Edwin, would not be likely to result in reunification with his mother in the foreseeable future and would be contrary to his health and safety. Moreover, the Court found, in light of Edwin’s age and the severity of his injuries sustained while in his mother’s care, in conjunction with the mother’s obvious parental deficiencies, the danger of any reunification efforts clearly outweighed any potential benefits.

In so finding, the Court found Edwin, at five months old, suffered rib fractures, shortness of breath, all requiring hospitalization and intensive medical care. His diagnosis ultimately included bilateral retinal hemorrhages, skull fracture, old rib fractures and traumatic subdural hematomas. He was intubated, placed on a respirator, and given a blood transfusion.

This Court further found that the respondent mother, who was only twenty-one years old, suffered from depression, a seizure disorder, poor parental judgment, and lacked insight into her parental deficiencies. According to her own admission in criminal court, she intended to injure Edwin, who was only months old and completely dependent upon her for his very survival. Despite having been engaged in various services since 2001, she caused serious physical injury to her infant in the spring of 2003. Further, she had failed thus far to follow through with appropriate and reasonable services, make any meaningful progress in her psychiatric treatment, and take her antidepressant and anticonvulsant medications regularly.
The issue in this case is whether derivative findings of abuse and severe abuse should be entered against the respondent mother with respect to the after born infant child, Makailia C, via summary judgment, because there is no genuine issue to be resolved at the trial.

The respondent argues that summary judgment should not be entered because the respondent’s conduct which established the abuse and severe abuse of Edwin was not sufficiently contemporaneous with the petition regarding the subject child, Makaila C. Respondent further argued that, seven months cannot be proximate enough in time to support a derivative finding.

In one case, the Court set-forth a three prong test to determine whether a finding of derivative abuse or neglect would be proper: (1) the offensive conduct proven as to one child was not remote in time; (2) the conduct was serious or involved a course of abusive or neglectful behavior; and (3) the conduct demonstrated a fundamental defect in respondent’s understanding of the duties and obligations of parenthood.
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In view of the foregoing, the Court finds that the respondent mother’s previous abusive conduct towards her infant, Edwin, is so proximate in time to this derivative proceeding that a finding of abuse is warranted. The respondent’s abusive conduct, repeatedly violently shaking and dropping him over a three month period, ended a mere seven months before the subject child was born. Furthermore, the mother did not seek medical attention for Edwin despite knowing he was injured.

In addressing derivative findings it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child. Rather, the petitioner’s burden is to show only proximity in time, after which showing the burden shifts to the respondent to show any circumstances that may differentiate the target child from the other children.

The mother’s criminal conviction and the Court’s prior findings establish a prima facie case of abuse. Under the Family Court Act which is followed in Queens and Staten Island, 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.

In one case, the Court held that: “Such evidence, standing alone, does not necessarily constitute a prima facie case, but may, in appropriate circumstances, be sufficient to sustain a finding of abuse or neglect.” The determinative factor is “whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists.”

Based upon the proximity in time, the duration and nature of the mother’s conduct, and a fundamental defect in her understanding of her parental duties and obligations, the Court finds that the conditions which led to the severe abuse of Edwin still exist. Accordingly, the Court enters findings of derivative abuse of the subject child.

Hence, based upon the respondent mother’s criminal conviction for assaulting infant Edwin, and the Court’s prior findings, including the basis to terminate reasonable efforts to reunify Edwin with his mother, and the medical records of Edwin, the Court held that, as a matter of law, there exists no triable issue of fact, and accordingly, enters an order of summary judgment in favor of the petitioner.

Do you know any child that has been physically abused by their parents? You need to consult a Kings Injury Attorney to assist you in protecting the rights and welfare of a child against physical abuse. Stephen Bilkis and Associates can help you with that.

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