On June 8, 2009, a physician at XXX Medical Center reported that Respondent-mother’s (hereafter RM) seven month old child was brought to the hospital after her boy friend (hereafter BF) 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.
On June 9, 2009, Medical Examiner KN 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.
On June 9, 2009, a physician from XXX Medical Center told the Administration for Children’s Services (ACS) that a CAT scan and retina exam indicated a bilateral hemorrhage and the CAT scan indicated hemorrhaging and a subdural hematoma which could be related to shaken baby. On June 8, 2009, RM admitted to ACS and Police that on June 8, 2009, the child woke up around 1:00 p.m. and was fussing and crying and didn’t want to sleep. The RM admitted that she was stressed out and tired and that the she shook her baby forcefully, several times at which point the baby stopped crying and she put him back in bed to sleep.
On June 9, 2009, the BF told ACS and Police that on June 8, 2009, RM 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 around 4:30 pm. BF admitted it was not until approximately 5:00 pm. when he went back in to the apartment that he found the child to be unresponsive.
On June 9, 2009, ACS observed the subject child to be disheveled and dirty. ACS observed the subject child to have dirt under her finger nails and toe nails. ACS 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. On June 9, 2009, ACS filed a petition against RM alleging she had abused and neglected her daughter.
In its Summation, ACS stated that it has presented clear and convincing evidence that RM acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven aggravated circumstances and that the infant was a severely abused child and that RM failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as to the subject child (RM’s two year old daughter). Further, based on the clear and convincing evidence of the heinous nature of RM’s abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist RM 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 and whether reasonable efforts to reunite the subject surviving child with RM are required or can be terminated in accordance with Family Court Act.
According to a Bronx County Brain Injury Lawyer, under Social Service Law the term “severely abused” can be used 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. If the court determines that such efforts are no longer required, ACS or the foster care agency may immediately file a petition to terminate parental rights.
A Bronx County Brain Injury Attorney said that, it was clear that the allegations of derivative abuse and severe abuse applied to the subject child. Petitioner ACS has established through documentary evidence (Medical Examiner’s Autopsy Report), that the infant suffered pervasive, inflicted injuries that created a substantial risk of death and which ultimately caused his death. The infant’s internal injuries included: a subarachnoid hemorrhage, bleeding in the area between the brain and the thin tissues that cover the brain, and etc… which resulted in traumatic brain injury. The Medical Examiner found that the infant sustained extensive abrasions and contusions over his entire body. The XXX Medical Center Emergency Room’s report of a CAT scan and retina exam of the deceased infant was included in the autopsy report. It found bleeding in the infant’s brain indicative of the shaken baby syndrome. These medical findings and determinations were entered into evidence and the court finds that the medical evidence in this matter created a prima facie case of child abuse against RM.
The uncontroverted findings of Medical Examiner KN, M.D., provide clear and convincing evidence that the infant suffered a serious physical injury as defined in Penal Law. Medical Examiner determined that the infant’s head injuries was the proximate cause of the death (resulted from whiplash, shaking, and blunt-trauma force to the head). RM admitted to violently beating and shaking the seven-month-old infant. Further, she acted in a manner that was indifferent to the plight of the infant when she failed to seek medical care for him and left him on the bed to die from his injuries. Respondent Mother’s conduct was reckless and evinced a depraved indifference to human life.
Also, in the instant case, the court finds that the parental defects that led to RM’s heinous acts against her deceased infant continue to exist and her impaired parental judgment create a substantial risk of harm for the surviving sibling (subject child) in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the subject child.
The final element of the charge of severe abuse requires Petitioner ACS to submit proof that the agency has made diligent efforts to encourage and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the 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. The court grants Petitioner ACS’s motion and orders that reasonable efforts to reunify the subject child with RM are no longer required.
The Stephen Bilkis & Associates are expert in the field discussed above. We have Bronx County Brain Injury Lawyers that can assist you with your fight against repeated physical violence committed by a parent to his/her child. If you will act now we can prevent the increasing number of casualties of abuse and neglect cases.
Please know that our Bronx County Personal Injury Lawyers can also help you to cases where injuries suffered can be the subject of a claim for damages. Call us now.