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Mother’s Failure to Seek Immediate Medical Assistance for Child Fatally Injured by Her Boyfriend Supported a Severe Abuse Finding and a Derivative Severe Abuse Finding—Amendment to Family Court Act 1051 (e), Removing the “Diligent Efforts” Requirement, Imposed Retroactively to Support Severe Abuse Finding

The Second Department determined an amendment to Family Court Act 1051 (e) could be applied retroactively to support a finding of severe abuse against mother in an article 10 proceeding.  Although the injuries to the child (Anniyah) were inflicted by the mother’s boyfriend, the mother failed to seek immediate medical care and the child died.  The instant proceedings were derivative abuse proceedings involving a sibling (Amira L):

A parent who stands by while others inflict harm may be found responsible for that harm (see Family Ct Act § 1012[e][ii]). And, derivative findings of 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” … . Accordingly, “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” (Family Ct Act § 1046[a][i]… ). Thus, in this proceeding regarding the subject child, Amirah L., proof of the mother’s acts and omissions that ultimately resulted in Anniyah’s death were admissible. * * *

When the fact-finding hearing was held in this case, the Family Court Act did not permit a finding of severe abuse solely on the element of the mother’s conduct (see Social Services Law § 384-b[8][a][i]), but also required a finding as to ACS’s “diligent efforts” or excuse from exercising “diligent efforts” (see Social Services Law § 384-b[8][a][iv]). During the pendency of this appeal, however, the Legislature amended Family Court Act § 1051(e), so that a “diligent efforts” finding is no longer a required element of a finding of severe abuse in the context of a Family Court Act article 10 proceeding (see L 2013, ch 430, § 1; cf. Social Services Law § 384-b[8]). The statutory amendment may be applied retroactively in this case in light of the nature and purpose of the amendment, the Legislature’s expression of urgency in its application, and the absence of any due process violation to the mother in retroactive application …

Accordingly, upon our finding that clear and convincing evidence at the fact-finding hearing established that the mother acted recklessly, under circumstances evincing a depraved indifference to Anniyah’s life, and thereby caused Anniyah’s death, we find that the mother severely abused Anniyah and derivatively severely abused the subject child, Amirah L. Matter of Amirah L, 2014 NY Slip Op 04198, 2nd Dept 6-11-14

 

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