Matter of Ne-Ashia

[*1] Matter of Ne-Ashia 2012 NY Slip Op 50355(U) Decided on February 16, 2012 Family Court, Bronx County Sherman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2012
Family Court, Bronx County

In the Matter of Ne-Ashia, A Child Under the Age of Eighteen Years Alleged to be Abused and Neglected by NA-ASHIA R., Respondent.



104070



Counsel appearing in this matter are:

Michael Cardozo, Corporation Counsel of the City of New York, by Alan W. Sputz,

Special Assistant Corporation Counsel (Amanda E Martinez, Esq. of counsel) for Petitioner Administration for Children's Services, Bronx, NY 10451

Telephone: (718) 590-5438

Carole M. Levy, Esq., Attorney for the Child, 901 Sheridan Avenue, 2nd Floor,

Bronx, NY 10451

Telephone: (646) 295-4211

Katherine Tracey, Esq., Attorney for Respondent Mother, 909 Sheridan Avenue, #3,

Bronx, NY 10451

Telephone: (718) 612-4525

Carol R. Sherman, J.

On June 9, 2009, the Administration for Children's Services (ACS) filed a petition against [*2]Na-Ashia R. (Respondent Mother)[FN1] alleging she had abused and neglected her daughter, Ne-Ashia (DOB xx/xx/2007). The allegations in the petition were:

"NE-ASHIA (DOB xx/xx/2007) is a child under the age of

eighteen whose parent, NA-ASHIA R. (DOB xx/xx/1988),

i) 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 [sic] any bodily organ, and; NE-ASHIA (DOB xx/xx/2007)

is a child less than eighteen years of age whose physical, mental

or emotional conditions has [sic] been impaired or is in imminent danger

of becoming impaired as a result of the failure of her mother, NA-ASHIA

R. (DOB xx/xx/1988), and UNIQUE J. (DOB xx/xx/1991), a person

legally responsible for her care, to exercise a minimum degree

of care in supplying them [sic] with adequate food, clothing, shelter, or

medical care within the purview of FCA Section 1012 (f) (i) (a), 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 Section 1012 (f) (i) (b), in that:

1.On June 8, 2009, a physician at Montefiore Medical Center

reported that the child CASIMIR was brought to the hospital

by EMS after Respondent J. 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.

2.On June 9, 2009, Medical Examiner Kappen reported that the

official cause of death for the child CASIMIR is whiplash,

shaking and blunt impacts of the head with subarachnoid

and subdural hemorrhages. The child's death has

been ruled a homicide. [*3]

3.On June 9, 2009, a physician from Montefiore Medical

Center told ACS ESC 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.

4.On June 8, 2009, the Respondent-mother admitted to

ACS ESC and Police at the 47th precinct that on

June 8, 2009, the child, CASIMIR, 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.

5.On June 9, 2009, the Respondent, UNIQUE J., told ACS

ESC and Police at the 47th precinct that on June 8, 2009, the

Respondent-mother went to work and left the child Casimir

in his care at which time he left the child in the apartment to

go outside and play basketball around 4:30 pm. Respondent

J. 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.

6.[numbered "5" in the original] On June 9, 2009, ACS ECS

observed the subject child NE-ASHIA to be disheveled

and dirty. ACS CPS observed 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."

The fact-finding hearing commenced on August 6, 2010 and continued on December 10,

2010, December 13, 2010, December 15, 2010, December 19, 2010, March 18, 2011, March 30, 2011, May 25, 2011, and concluded on July 28, 2011. Counsel submitted written summations on November 6 and 7, 2011.

At the fact-finding hearing, ACS called the following witnesses: Detective Clifford Ader, New York City Police Department, Bronx Homicide Division, and ACS Caseworkers Adineke Graham and Cherise Wilson. Attorney for Respondent Mother called Toinette Knight, Maternal Grandmother of the subject child Ne-Aisha and deceased infant Casimir. The Respondent [*4]Mother did not testify.

The following exhibits submitted by the Petitioner ACS were admitted into evidence:

Petitioner's Exhibit 1 - Duly certified and delegated Autopsy Report of the Bronx County Medical Examiner, dated June 9, 2009;

Petitioner's Exhibit 2 - Oral Report Transmission (ORT)

of Suspected Child Abuse and Maltreatment dated June 8, 2009.

The source of the ORT was Dr. Labinson of Montefiore

Medical Center;

Petitioner's Exhibit 3 - ORT dated June 9, 2009.

The source of the ORT was Dr. Carolyn Kappen.

Bronx County Medical Examiner;

Petitioner's Exhibit 4 - Duly certified and delegated

Videotape Recording of Statements of Respondent

Mother, Na-Ashia R., by Assistant District Attorneys,

Bronx County, recorded June 9, 2009.

The following exhibits submitted by Respondent Mother were admitted into evidence:

Respondent's Exhibit A - Transcript of the court hearing

of August 6, 2010;

Respondent's Exhibit B - Duly certified and delegated

Montefiore Medical Center records for the child

Ne-Ashia.

The following exhibit was submitted by the Attorney for the Child and admitted into evidence:

Attorney for the Child's Exhibit a - a report dated

March 18, 2011 from Anne Murphy, Ph.D., the child's

therapist at Albert Einstein College of Medicine.

Petitioner ACS's Case

Bronx County Medical Examiner's Autopsy Report

On June 9, 2009, Bronx County Medical Examiner Carolyn Kappen, M.D., performed an autopsy on the seven-month-old child, Casimir. The report found the cause of death to be "whiplash, shaking and blunt impacts of head with subarachnoid and subdurral hemorrhage" and the manner of death as "homicide." The examiner found whiplash shaking and blunt impact injuries to the head and torso. The injuries were described as follows:

"A. WHIPLASH SHAKING AND BLUNT IMPACT OF HEAD: [*5]

A " purple contusion is on the right frontal scalp and a ½" contusion

is on the left frontal scalp. This contusion has corresponding subgaleal

hemorrhage. A ¼" contusion with subgaleal hemorrhage is on the left

posterior frontal scalp. Two ¼" purple abrasions are at the right and left

nostrils of the nose. A ¼" abrasion is on the upper aspect of the left side

of the lip. A 3" contusion is on the left side of the face at the jaw and a

¾" contusion is below it. A 1" contusion is on the right side of the under

surface of the chin near the neck. A 2" contusion is on the posterior head

at the vertex.

A thin layer of subdural hemorrhage is over the brain. The brain, spinal

cord and eyes are fixed in formalin. See neuropathology consultation.

B. BLUNT IMPACT OF TORSO:

A ¼" contusion is on the right chest almost near the midline. Four "

contusions are on the right abdomen. Five " contusions are on the left

abdomen. Some of these contusions have underlying subcutaneous tissue

hemorrhage (see Histology report).

A ¼" area of intramuscular hemorrhage is at the right posterior and

medial musculature in the neck. A ¼" intramuscular hemorrhage is

at the 2nd thoracic vertebral body. A ¼ " intramuscular hemorrhage is

at the atlanto-occipital junction. Few abrasions are on the buttock on

the left side ", " and ". There is a " abrasion above the

three previously mentioned. A ¼" and a " abrasion is on the right

posterior torso just above the buttock."

The Medical Examiner's report noted a hemorrhage covering the infant's optic nerves. The Consulting Neuropathologist to the Medical Examiner, Dr. Mena, examined the brain and spinal cords of the deceased infant, and made the following diagnosis:

"Traumatic Brain Injury

A. Subdural hemorrhage, recent, cerebral

convexities and posterior cranial fossa

B. Subarachnoid hemorrhage, recent,

cerebral hemispheres and spinal cord

C. Diffuse Axonal Injury"

Detective Clifford Ader

Detective Ader of the Bronx Homicide Division was called as a witness by ACS. He

testified that he met the Respondent Mother at the 47th precinct in June 2009. He said that he interviewed her on June 9, 2009 at 1:00 AM and 2:15 PM and that he was present for and observed the interviews in which Respondent Mother gave statements to two Bronx County Assistant District Attorneys (ADAs). The interviews conducted by the ADAs were videotaped. [*6]Each ADA separately interviewed Respondent Mother, one interview occurred at 3:15 AM on June 9, 2009, and the other at 6:10 PM that same day. He also testified that he went to the Bronx County Medical Examiner's office on June 9, 2009 in relation to the death of the infant, Casimir, and obtained the Medical Examiner's autopsy report. Detective Ader said that he never threatened Respondent Mother nor did he make her any promises. She was not in hand cuffs when he spoke to her, and he offered her food and drink.

In Detective Ader's first interview with Respondent Mother at 1:00 AM, she recited the events of June 8, 2009. She said that the baby Casimir had been fussing and crying and that she had shaken him in response. Detective Ader also spoke to Respondent Mother at about 2:15 PM and told her what he learned at the Medical Examiner's office and showed her a photograph of the child Casimir from the autopsy report. Respondent Mother initially responded, "Unique did this." She then admitted to hitting and striking Casimir and said that "she did not mean to do this."

Detective Ader stated that he was present when Respondent Mother gave statements to

each of two ADAs on June 9, 2009. Initially, he stated he could not recall some of the specific details of the videotaped interviews that had occurred one year prior to his testimony. However, he reviewed the tapes and refreshed his recollection. Detective Ader testified as to the contents and circumstances of the interviews. Detective Ader testified that during the videotaped questioning of Respondent Mother, she said that she had worked long hours during the night of June 7-8, 2009 and had become frustrated with the baby Casimir's crying. She said she had punched the baby in the head and covered his mouth so he would not cry. She also described shaking the baby. Respondent Mother was provided with a doll to demonstrate what she had done. According to Detective Ader, Respondent Mother held the doll at its mid-section and began striking it with a clenched fist. She also demonstrated violently shaking the baby many times and the doll's head jerked back and forth.Detective Ader, after viewing the tape and refreshing his recollection, identified and authenticated the videotaped recording of the interviews with Respondent Mother conducted by each of the two ADAs on June 9, 2009. He testified that the videotape recording provided to the court, which included both interviews with Respondent Mother, was a true, accurate and complete copy of the taped statements made by Respondent Mother on June 9, 2009. He had also signed his name, date and his shield number on the videotape recording. Detective Ader stated that the videotape recording offered an accurate copy of what he observed and reflected the statements in their entirety. The videotape recording was played in court and entered into evidence.

Videotaped Statements of Respondent Mother

First Videotaped Statement of June 9, 2009 at the 47th Precinct, Bronx, NY

at 3:25 AM. Present were: ADA Carrie Seiden, Detective Clifford Ader, Respondent Mother and the Videotape Technician.

Respondent Mother acknowledged and waived each of her rights under Miranda v Arizona (384 US 436 [1966]) and signed a statement indicating she had done so.

Respondent Mother described the events of June 8, 2009 at 724 East 222 St., Bronx, New York. Respondent Mother replied that she went to the home of her boyfriend, Unique J., on [*7]Sunday June 7, 2009 at about 6:00 PM and left her son, Casimir, there when she went to work that night. She said that she had known Mr. J. about four months and he had been her boyfriend for two weeks. She had brought both Casimir and her daughter Ne-Ashia, two years old, to his home on a prior occasion and stayed for a week. On June 7, 2009, she left her daughter Ne-Ashia with her mother, the Maternal Grandmother. Respondent Mother stated she worked a security job from 8:00 PM to 8:00 AM. She said she telephoned Unique J. four times during the night of June 7-8, 2009.

Respondent Mother said she returned to her boyfriend's home on Monday, June 8, 2009 at

about 8:30 AM. The baby Casimir was sleeping in the bed next to Unique J. and Mr. J.'s friend was asleep on the floor. The baby woke up at about 9:00 AM and Respondent Mother changed and fed him. Then she and the baby went to sleep. The baby awoke at about 1:00 PM and was fussy and crying. Respondent Mother said she asked the baby to stop crying and be quiet, but he would not stop. She said he would not take his bottle. She said she then picked him up, and she demonstrated how she did that. She said she held the infant under his armpits facing her and shook him four times. Her fingers were on his back and her thumbs on his chest. She said the baby had a little "smirk" on his face. Respondent Mother said the baby's head was going back and forth. Respondent Mother then said she put the baby on her shoulder and continued to shake him. She said he fell asleep and she put the baby on the bed and went back to sleep. She said everything was normal after she shook the baby, and he was breathing and alive. Respondent Mother said Unique J. was not in the room when this incident occurred.

Respondent Mother said she again awoke at about 3:25 PM. Mr. J.'s sister

Toochie came into the room and they left the home together, leaving the baby in the room on the bed. Respondent Mother said she told Mr. J. and his parents that the baby was in the bedroom upstairs. Respondent Mother said she cashed her paycheck and stopped at a few other places. She then returned to Mr. J.'s home, and his mother told her about the baby. She said she received a telephone call from Unique J. stating he was sorry, but her baby was dead. Respondent Mother said she went to the hospital.

Respondent Mother again waived her rights under Miranda and acknowledged she had signed a statement and waived her rights. Respondent Mother was shown a statement that she had signed. She read her statement and acknowledged it. Respondent Mother said she "did not mean to shake my baby like that, to cause him to pass away."

Second Videotaped Statement of June 9, 2009 at the 47th Precinct,

Bronx, NY at 6:10 PM. Present were: ADA Danielle Pascal, Detective

Clifford Ader, Respondent Mother, and the Videotape Technician.

Respondent Mother was again read her rights under Miranda and she acknowledged and waived each right. Respondent Mother described the events of June 8, 2009. Respondent Mother repeated her prior statement that she arrived at the home of Unique J. on Sunday, June 7, at about 6:00 PM and left the baby Casimir at the home. She worked a shift from 8:00 PM to 8:00 AM. She said she arrived back at the home at about 8:30 AM Monday morning, June 8, 2009. The baby was in the bed with Unique. Respondent Mother said she fed and changed the baby [*8]and she and the baby went to sleep. She said that the baby awoke at about 1:00 PM and was crying. Respondent Mother stated that she became frustrated and was tired and stressed. She picked up the baby and shook him four times. She again demonstrated how she violently shook the child. Respondent Mother said he was facing her and she put her hands under his shoulders with her thumbs on his chest and her fingers on his back. Her nails appeared very long and sharp. She said the baby had a "smirk" on his face. After Respondent Mother shook the baby, he went to sleep. Then she also went back to sleep.

Respondent Mother said the baby awoke again at about 3:30 PM and was fussing and would not stop. She said she started striking the baby. She said she gave him a "shot" to his head. She punched him on the top of his head three times, on his back four times and on his side one time. Respondent Mother said she punched him with a closed fist and with a lot of force, and that she covered the baby's mouth and nose very hard. Respondent Mother said she saw tears in the baby's eyes.

Respondent Mother said that she did not know what happened. She was "depressed" and

"stressed," and "didn't mean to take it out on my son." She said she had been "angry" for two or three days and did not know why. Respondent Mother said the baby was still breathing when she stopped hitting him, and she lay him on the bed. She then left the room. She said no one was in the room when she was striking the child.

Respondent Mother was given a doll. She demonstrated how she held the baby under his

arms facing her with her fingers on his back. She shook the doll hard and the doll's head jerked back and forth. Respondent Mother then demonstrated how she hit the baby. She put the doll sitting on her lap facing her and showed how she punched the baby in the head. She then turned the doll and placed him facing to the side and punched the doll in the back and side. She held its face with her hand over its mouth and under its nose. Respondent Mother said the baby cried and his body jerked.

Respondent Mother was then provided with a statement of what she had said. She said she

understood her rights and had made the statement voluntarily.

ACS Caseworker Cherise Wilson

ACS Caseworker Cherise Wilson was assigned to the case on June 9, 2009 to pick up Ne-Ashia at Bellevue Hospital and place her in foster care. Caseworker Wilson testified that she observed the child Ne-Ashia at Bellevue Hospital after her removal from the home of the Maternal Grandmother. She testified that Ne-Ashia, then two years old, had a bald spot on the back of her head, her toe and finger nails were dirty and her hair was unkempt and unclean.

ACS Caseworker Adineke Graham

ACS Caseworker Adineke Graham identified the ORTs from Dr. Labinson of the Montefiore Medical Center Emergency Room and Dr. Carolyn Kappen. They were admitted into evidence pursuant Family Court Act § 1046 (iv) and (v). [*9]

Respondent Mother's Case

Toinette Knight, Maternal Grandmother

Ms. Knight testified that Ne-Ashia lived with her, Respondent Mother and Casimir. She said that Ne-Ashia was treated for a skin condition, and she and Respondent Mother gave Ne-Ashia oral medication. She said that Ne-Ashia had bald patches on her scalp but the condition had improved. She said she applied aloe vera leaf to the child's arms and scalp. According to Ne-Ashia's certified and delegated medical records from Montefiore Medical Center, she was seen at the doctor's office in December 2008 and there was no notation as to dry skin or patches of missing hair. The skin, neck and head were described as "without lesions or deformities." On January 11, 2008, Ne-Ashia was taken to the hospital with a rash on her face, chest and back. On April 20, 2009, the records reflect a complaint that Ne-Ashia had a rash on her head and the doctor observed patches of skin on her scalp. The records indicate that Ne-Ashia was prescribed medication and Respondent Mother was told to return with the child in two weeks. Four days later Respondent Mother telephoned the doctor and described lumps on the child's neck. The records state she was instructed to bring the child to an emergency room if the child was sick over the weekend because it could be a sign of a viral or bacterial infection. There is no indication in the records that the child was taken to the hospital nor were further medical appointments scheduled.

Summary of the Arguments

In its Summation dated November 7, 2011, ACS 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 Casimir that resulted in his death. ACS stated that it had proven "aggravated circumstances" and that the infant Casimir was a "severely" abused child as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a), and that Respondent Mother failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as defined in Social Services Law 384-b (8) (a) as to the subject child Ne-Ashia. Further, based on the clear and convincing evidence of the heinous nature of Respondent Mother's abuse of the infant Casimir, ACS stated that the court should terminate its duty to provide reasonable efforts to assist Respondent Mother in reunification with the surviving child Ne-Ashia.

The Attorney for the Child, in a Summation dated November 6, 2011, stated that Family Court Act § 1046 (a) (i) provides authority for entering a derivative finding of severe abuse as to the "non-target" surviving child, Ne-Ashia, based solely on the actions of Respondent Mother against the "target" child, infant Casimir. The fact that Respondent Mother did not directly abuse the child Ne-Ashia does not deprive the court of making a finding of severe abuse as to the child Ne-Ashia. The Attorney for the Child argued that Petitioner ACS had established by clear and convincing evidence "aggravated circumstances" based on a "brutal assault" by Respondent Mother upon the infant Casimir resulting in his death, warranting a finding of "severe" abuse. Respondent Mother's egregious conduct was evidence of a fundamental flaw in her parental judgment and ability and any child in her care would be at substantial risk of danger. In addition, the Attorney for the Child asked the court to draw the strongest negative inference against Respondent Mother due to her failure to testify in this matter.

Respondent Mother, in her Summation dated November 6, 2011, stated that Petitioner [*10]ACS failed to allege derivative abuse of the child Ne-Ashia and it would be procedurally improper for the court to enter such a finding in the absence of such an allegation, and the petition should be dismissed. Further, Petitioner ACS failed to offer testimony from a medical doctor or expert regarding the cause of infant Casimir's fatal injuries. Respondent Mother stated that ACS has failed to prove that the infant was in the exclusive care of Respondent Mother at the time of his injuries or that the fatal injuries were the result of Respondent Mother's intentional conduct, and, thus, has failed to establish by clear and convincing evidence the key elements of severe abuse as defined by Social Services Law § 384-b (8) (a) (i).

Legal Analysis

The issues to be determined in this matter are whether the subject child Ne-Ashia is a derivatively severely abused child based on the aggravated circumstances of the events that led to the death of her sibling, infant Casmir, as defined in Family Court Act § 1012 (j) and Social Services Law § 384-b (8) (a) (i), and whether reasonable efforts to reunite the surviving child Ne-Ashia with Respondent Mother are required or can be terminated in accordance with Family Court Act § 1039-b (b) (1).

Social Service Law § 384-b (8) (a) defines the term "severely abused " as a ground for the termination of parental rights (see Social Services Law § 384-b [4] [e]). The legislature expressly incorporated this term in the definition of "aggravated circumstances" and made it applicable to child protective proceedings (see Family Court Act 1012 [j]). The legislature acted "to create a child-protective system wherein the adjudication of a deceased child as abused or severely abused becomes paramountin termination of parental rights proceedings as to surviving children" (Matter of Alijah C.,1 NY3d 375, 379 [2004] citing Family Court Act § 1051 [e]). 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 (see Family Court Act § 1046 [b] [ii]; § 1051 [e]). The legislature also authorized the court to determine whether "reasonable efforts" to reunite the child and parent should continue to be required (see Family Court Act § 1039-b). 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 (see Family Court Act § 1039-b [c]). 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" (Social Services Law § 384-b [8] [a] [iv]).

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, Ne-Aisha, and should be dismissed. Respondent Mother contended that ACS failed to include the allegation of derivative abuse and derivative severe abuse as to the child Ne-Ashia and never sought leave to amend the petition to add that allegation or to add Casimir as a subject child. ACS named Ne-Ashia as the subject child of the petition, and on the face of the petition, in bold face font, there is notice that a finding that a child is an abused child as defined in Social Services Law § 384-b, by clear and convincing evidence, could "constitute a basis to terminate parental rights." This notice applied to the subject child of the petition, Ne-Ashia, and was based on the allegations in the petition, which delineated the [*11]severe abuse that resulted in the death of Ne-Ashia's sibling, Casimir. Moreover, 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 Ne-Ashia based on the allegations in the petition. Therefore, the court finds Respondent Mother's argument to be without merit.

In this matter, it was clear that the allegations of derivative abuse and severe abuse applied to the child Ne-Ashia. Although the agency can proceed on behalf of a subject child whose death is alleged to be the result of the acts of a parent, and while it may be better practice to name the deceased child as a subject child, there is no requirement that the deceased child be named in the caption of the petition. Further, if Respondent Mother is contending that she was not given proper notice that the alleged "severe abuse" of the infant Casimir would be a basis for a finding of derivative abuse and severe abuse as to Ne-Ashia, there is no basis for such a contention. Respondent Mother was on notice of the allegations that the death of Casimir was the result of abuse she inflicted on the child and that the evidence put forward by ACS would be the basis for a finding of derivative abuse and severe abuse of the child Ne-Ashia. Respondent Mother had full opportunity to review the evidence prior to trial, cross examine all of the witnesses, challenge the evidence, and present witnesses and evidence on her own behalf. At no time during the proceeding did Respondent Mother claim that she was not given sufficient notice of the allegations against her, nor did she claim that she did not have sufficient time to respond to the allegations. Accordingly, pursuant to Family Court Act § 1051 (b), which allows the court to conform the pleadings to the proof, the court amends the petition to include the deceased child Casimir as a subject child and amends the allegations in the petition to conform with the proof of abuse and severe abuse as to the infant Casimir and the derivative abuse and severe abuse as to the child Ne-Ashia (see Matter of Shawniece E., 110 AD2d 900, 901 [2d Dept 1985]).

In this matter, the threshold inquiry is whether deceased infant Casmir is an "abused child." The Family Court Act defines an abused child, in pertinent part, as follows:

"[e] Abused Child' means a child less than eighteen years

of age whose parent or other person legally responsible for

his care: (i) 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 emo-

tional 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 or protracted disfigurement, or protracted impairment

of physical or emotional health or protracted loss or impairment

of the function of any bodily organ, or . . ." (Family Court Act

§ 1012 [e] [i], [ii]).

Petitioner ACS has established through documentary evidence, the Medical Examiner's

Autopsy Report dated June 9, 2009, that the infant Casimir suffered pervasive, inflicted injuries [*12]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 a subdural hemorrhage, bleeding due to a rupture of blood vessels in the space between the surface of the brain and the thin layer of tissue that separates the brain from the skull, which resulted in "traumatic brain injury." The Medical Examiner found that the infant sustained extensive abrasions and contusions over his entire body. The Montefiore Medical Center Emergency Room's report of a CAT scan and retina exam of the deceased infant Casimir 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 pursuant to Family Court Act § 1046 (a) (iv) and (v). The court finds that the medical evidence in this matter created a prima facie case of child abuse against Respondent Mother (Matter of Samuel L., 52 AD3d 394 [1st Dept 2008] holding that medical evidence concerning a five-month-old child "with injuries, including a bulging fontanel, bilateral subdural hematoma, skull fracture, and retinal hemorrhages" established that such injuries were non-accidental in nature and would ordinarily not be sustained except by acts or omissions of the parent citing Family Court Act § 1012 [e] [i] and [ii]; § 1046 [a] [ii]).Respondent Mother presented no evidence whatsoever to overcome the presumption of abuse.

Respondent Mother, in her videotaped statements in response to the Bronx ADAs, admitted to violently shaking Casimir and punching him in his head, back and side, and covering his mouth and nose. She described her frustration with and anger at the baby because of his "crying" and "fussing" and her brutal response. Based on the medical evidence in this matter, and Respondent Mother's videotaped statements, which included her admissions and her demonstrations of her conduct in violently and brutally beating and shaking her seven-month-old baby, the court finds, by clear and convincing evidence, that the infant Casimir is an abused child (see Family Court Act § 1012 [e] [i], [ii]; § 1046 [b] [ii]).

To sustain a finding that the infant Casimir is a severely abused child, Petitioner must

establish such aggravated circumstances by clear and convincing evidence (see Family Court Act § 1012 [j]; § 1046 [b] [ii]; § 1051 [e]). Social Services Law § 384-b defines a severely abused child as one who has been found to be abused as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life, which result in serious physical injury to the child as defined in section 10.00 of the penal law (Social Services Law § 384-b [8] [a] [i]).[FN2] Penal Law § 10.00 (10) defines "serious physical injury" to mean a physical injury "which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

The uncontroverted findings of Medical Examiner Carolyn Kappen, M.D., provide clear and convincing evidence that the infant suffered a "serious physical injury" as defined in Penal Law 10.00 (10). Medical Examiner Kappen determined that the infant's death was a homicide that resulted from whiplash, shaking, and blunt-trauma force to the head. Respondent Mother [*13]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 (see Matter of Dashawn W. [Antoine N.], 73 AD3d 574 [1st Dept 2010], lv dismissed 16 NY3d 767 [2011] overturning family court's dismissal of a charge of severe abuse due to insufficient evidence of depraved indifference, holding that respondent's conduct, which caused a five-month-old baby to sustain multiple broken bones, evinced a depraved indifference to the life of the child sufficient to make a finding of severe abuse,citing People v Goodridge, 251 AD2d 85 [1st Dept 1998] holding that a parent's violent shaking of an infant constituted recklessness involving a depraved indifference to human life). Accordingly, the court finds that Petitioner ACS has satisfied its burden of proving, by clear and convincing evidence, "aggravated circumstances" in that Respondent Mother, as a result of reckless or intentional acts committed under circumstances evincing a depraved indifference to human life, abused the seven-month-old infant Casimir who sustained serious and fatal physical injuries (Family Court Act § 1012 [ j]; § 1051 [e]; Social Services Law § 384-b [8] [a] [i]; Penal Law 10.00 [10]).

Respondent Mother argued that ACS has not proven that the infant Casimir was solely in her care at the times he sustained the fatal injuries citing Matter of Jezekiah, R.-A. (Edwin R.-E.) (78 AD3d 1550 [4th Dept 2010]), which held that if evidence showed that the child was in the care of others during the relevant time periods of injury, a finding of severe abuse could not be sustained. In this case, Respondent Mother has presented no evidence whatsoever that other persons were present at the time the infant sustained injuries. Most importantly, Respondent Mother admitted in two videotaped statements to violently hitting, punching and shaking the infant during specific time periods. Using a doll, she demonstrated how she gripped the infant under his armpits and shook him violently and repeatedly. Respondent Mother also admitted to forcefully punching the infant numerous times in the head, back, and side, with a closed fist. In these statements, Respondent Mother specifically stated that no one else was present during her assaults on this child. Therefore, Respondent Mother's further relianceon Matter of Kadiatou B. (52 AD3d 388 [1st Dept 2008], lv denied 12 NY3d 701 [2009]) is misplaced. In that case, the evidence was "vague, nonspecific" as to the role of the parents in the death of their three-month-old baby (id.). Accordingly, the court finds that Respondent Mother's argument that other persons are responsible or could be responsible for the abuse of Casimir are not credible and have no merit (Matter of Damien S., 45 AD3d 1384 [4th Dept 2007]). Moreover, the court draws the strongest possible inferences against Respondent Mother due to her failure to testify in this matter (see Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79-80 [1995]; Matter of Chelsey B. [Michael W.], 89 AD3d 1499 [4th Dept 2011]).

Respondent Mother contended that ACS failed to show that the child Ne-Ashia sustained

physical injury or "serious physical injury" as defined in Penal Law § 10.00 (10), and therefore is barred from a derivative finding of severe abuse as to Ne-Ashia. However, Family Court Act

§ 1046 (a) (i) provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent." The statute does not require proof of physical injuries with respect to siblings of an abused child (see Matter of Jorela L., 222 AD2d 282 [1st Dept 1995] citing Matter of Vincent M., [*14]193 AD2d 398 [1st Dept 1993]; Family Court Act § 1046 [a] [ i ]). "As the concern is the skewed family dynamic, 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" (Matter of Marino S., 181 Misc 2d 264, 276 [Fam Ct, New York County 1999] citing Matter of Patricia J., 206 AD2d 847 [4th Dept 1994] explaining the bases for derivative findings in Article 10 child protective proceedings). The Court of Appeals stated in the Matter of Alijah C. that:

"In drafting these sections [Social Services Law 384-b (8)

(a) and (b)] the Legislature clearly demonstrated an intent to

bring deceased children within the ambit of the Family

Court Act in order to protect the health and safety of

children whose siblings have died at the hands of a parent

or caretaker . . . Clearly siblings of a child killed by abuse

are within the class of children the Legislature sought to

protect in enacting Social Services Law § 384-b, enhancing

the protective purposes of Article 10 of the Family Court

Act" (Matter of Alijah C., 1 NY3d at 379-380).

Moreover, the Court of Appeals 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'" (Matter of Marino S.,100 NY2d 361, 374 [2003], cert. denied 540 US 1059 [2003] quoting Matter of Marino S., 181 Misc 2d at 276 [citation omitted]). The First Department, in reversing the family court, held that "[a] finding of derivative abuse must also be entered with respect to Tiffany (Family Court Act § 1046 [a] [i]), since [e]vidence of the physical abuse of one child logically supports the conclusion that the parents have a faulty understanding of the duties of parenthood' sufficient to infer an ongoing danger to their other children" (Matter of Tiffany F., 205 AD2d 429, 431 [1st Dept 1994] quoting Matter of Christina Maria C., 89 AD2d 855 [2d Dept 1982]).

In the instant case, this court finds that the parental defects that led to Respondent

Mother's heinous acts against infant Casimir continue to exist and her impaired parental judgment create a substantial risk of harm for the surviving sibling Ne-Ashia in the foreseeable future, warranting derivative findings of abuse and severe abuse as to the child Ne-Ashia (Matter of Kayden E. [Luis E.], 88 AD3d 1205 [3d Dept 2011], lv denied 2012 NY Slip Op 60146 [2012]; Matter of Justice T., 305 AD2d 1076, 1077 [4th Dept 2003]; Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d 533, 534 [2d Dept 1997] finding that respondent parent caused two-month-old infant to sustain three non-accidental bone fractures, which showed an "impaired level of parental judgment as to create a substantial risk of harm for any child" in the parent's care).

The final element of the charge of severe abuse, set forth in Social Services Law § 384-b

(8) (a) (iv), 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, and such [*15]efforts have been unsuccessful and are unlikely to be successful in the foreseeable future" (see Matter of Leon K. [Marilyn O.], 69 AD3d 856 [2d Dept 2010]; Matter of Candace S., 38 AD3d 786 [2d Dept 2007]; Matter of Latifah C., 34 AD3d 798 [2d Dept 2006]). Based on the numerous reports submitted to the court throughout this proceeding from ACS and Cardinal McCloskey Services and the report from Dr. Anne Murphy, Ne-Ashia's therapist, dated March 18, 2011, in evidence as Attorney for the Child's Exhibit a, the court finds that ACS and Cardinal McCloskey Services have made diligent efforts to encourage the mother-child relationship.

Although Respondent Mother has been incarcerated since the filing of this case, ACS and Cardinal McCloskey Services have attempted to work with her and ensure she has access to and information about the child. Respondent Mother was provided with contact information for Dr. Murphy and, as of March 2011, she had contacted Dr. Murphy on one occasion. Further, the Agency has arranged for Respondent Mother to have visits through the CHIPPS program one to two times a month with the child Ne-Ashia 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 Casimir, continuation of such efforts in this matter would be improper and detrimental to the best interests of the surviving child Ne-Ashia. At this point, Ne-Ashia 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 (see Family Court Act § 1052 [b] [i] [A]; § 1089 [c] [4]; Social Services Law § 384-b [a] [1] [iii] requiring reasonable efforts made, and diligent efforts exercised, to strengthen and reunite families). The Court of Appeals has recognized that:

"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 stronginterest 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" (Matter of Marino S., 100 NY2d at 372).

The child, Ne-Ashia, is in a non-kinship pre-adoptive foster home and her permanency goal is adoption. She was referred for and has consistently attended therapy with Anne Murphy, Ph.D., at Albert Einstein College of Medicine. The report from Dr. Murphy indicated that Ne-Ashia has been in therapy since June 2009 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:

"Neashia (sic) had made enormous progress during this time,

moving from a severely traumatized child with severe sleep,

eating and regulatory difficulties . . . Neashia 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 [*16]

activity for sometime. At this time Neashia is a lively, devel-

opmentally 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

Casimir'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 Ne-Ashia, the Court terminates the requirement that the agency make further diligent efforts toward reunification of the child Ne-Ashia and Respondent Mother (see Family Court Act § 1039-b [b] [1]). The court relieves ACS and the foster care agency of the duty to continue such efforts (Matter of Marino S., 100 NY2d at 369-370 citing Family Court Act § 1039-b [b] [1] holding that "[t]he effect of a finding of aggravated circumstances under the Family Court Act — like the effect of a finding of severe abuse under the Social Services Law . . . is to dispense with the requirement that an agency responsible for having placed the children in foster care or seeking to terminate parental rights exercise diligent efforts or reasonable efforts to reunite the respondent with the children"). 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.

The court directs the appearance of counsel and parties at dispositional and permanency hearings in NA 14345/2009 on March 8, 2012 at 3:00 PM. The court directs that ACS transmit the permanency hearing report and an investigation and report to the court, parties and counsel by March 5, 2012.

This constitutes the decision and order of the court.

Notify counsel and the parties.

E N T E R:

Dated: Bronx, New York

February 16, 2012___________________________

Carol R. Sherman, Judge

Family Court Bronx County [*17] Footnotes

Footnote 1: Petition NA 14345/09 originally named Respondent Mother Na-Asia R.'s boyfriend, Unique J., as a respondent. ACS withdrew the petition against Unique J. on September 25, 2009.

Footnote 2: Social Services Law § 384-b (8) (a) (ii) and (iii) alternatively define a severely abused child as one whose parent has committed or knowingly allowed to be committed a felony sex offense as defined in penal law or whose parent has been convicted of one of a number of delineated criminal offenses.