Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that “the child [is] an  abused  child 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 [Penal Law  § 10.00 (10)]” (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner “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  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13