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FATHER PROPERLY FOUND TO HAVE SEVERELY ABUSED ALL THE CHILDREN IN THE HOME; DESPITE THE WORDING OF THE SEVERE ABUSE STATUTE, WHICH USES THE TERM “PARENT,” THE COVERAGE OF THE STATUTE IS NOT LIMITED TO BIOLOGICAL CHILDREN (THIRD DEPT).

The Third Department, on February 23, 2021, vacated and replaced the opinion in this case which was originally released on February 18, 2021. In the vacated opinion the court held father could not be deemed to have severely abused the children who were not his biological children because the severe abuse statute uses the term “parent.” However, in the replacement opinion, the court ruled father was properly found to have severely abused all of the children in the home. Father was present when mother severely beat her daughter, who subsequently died:

With respect to the father, although he is only the biological father of the younger daughter and the younger son, he lived with and had been in a relationship with the mother for approximately five years and, in his statement to police, referred to the all of the children in the home as “[o]ur kids.” The older daughter and the older son, moreover, refer to him as “dad” and there is no dispute that he was a person legally responsible for the subject children’s care at all relevant times (see Family Ct Act §§ 1012 [a]; 1051 [e]). Thus, as the deceased child’s brutal beating occurred while the father was present in the downstairs of the home, at a time when the mother’s yelling and the deceased child’s screaming could be heard throughout the house, we are satisfied that the father’s conduct in failing to intervene or otherwise take any action to provide the deceased child with life-saving medical care satisfied the elements of severe abuse as against her (see Social Services Law § 384-b [8] [a] [i]; Family Ct Act § 1051 [e] … ). The father’s conduct also evinced “such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” … . Accordingly, we discern no reason to disturb Family Court’s finding that the father derivatively severely abused the four surviving children … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01155, Third Dept 2-18-21

 

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