                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     519370
________________________________

In the Matter of BRETT DD.
   and Others, Alleged to be
   Abused, Severely Abused
   and/or Neglected Children.

WASHINGTON COUNTY DEPARTMENT                MEMORANDUM AND ORDER
   OF SOCIAL SERVICES,
                    Appellant;

KEVIN DD.,
                    Respondent.
________________________________


Calendar Date:   February 9, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

                             __________


      Roger A. Wickes, County Attorney, Fort Edward (Daniel S.
Martindale of counsel), for appellant.

      Michael J. Mercure, Public Defender, Fort Edward (Andrew J.
Messersmith of counsel), for respondent.

      Elena Tastensen, Saratoga Springs, attorney for the
children.

                             __________


Clark, J.

      Appeal from that part of an order of the Supreme Court
(Pritzker, J.), entered May 21, 2014 in Washington County, which,
in a proceeding pursuant to Family Ct Act article 10, partially
denied petitioner's motion for summary judgment.
                              -2-                519370

      At the time of the incident giving rise to the instant
proceeding, respondent was the live-in boyfriend of Alexandria
EE. (hereinafter the mother), who is the biological mother of
Kiaunte EE. (born in 2009), Matthew EE. (born in 2011) and the
now-deceased Brett DD. (born in 2013). Respondent is not the
father of any of the mother's children.1 On August 11, 2013, the
mother went to run errands with Kiaunte while Matthew and Brett
remained home with respondent. Before the mother's return, Brett
began to cry, which so frustrated respondent – who was playing a
video game – that he grabbed the infant child around his ribs,
violently shook him and then slammed him to the floor. As a
result, Brett suffered severe injuries and died after being
airlifted to a hospital.

      After an investigation into the circumstances of Brett's
death, respondent was criminally charged and ultimately pleaded
guilty to manslaughter in the first degree. Meanwhile,
petitioner commenced the instant proceeding seeking a
determination that respondent abused, severely abused and
neglected Brett, and derivatively committed the same offenses
against Kiaunte and Matthew. Relying upon respondent's guilty
plea, petitioner moved for summary judgment. Supreme Court
thereafter issued a combined fact-finding order and order of
disposition granting summary judgment on the portion of
petitioner's motion seeking a determination of abuse and neglect
as to each of the three children, but denying the portion that
sought determinations of severe abuse. Petitioner now appeals.

      Contrary to petitioner's contention, because respondent was
"not the parent of [Brett], and accordingly, no issue is raised
with respect to the termination of [his] parental rights as to


    1
        Notably, respondent believed himself to be Brett's
father. However, during the investigation leading up to the
criminal prosecution of respondent that preceded the instant
proceeding, it was apparently discovered that Brett was not
respondent's biological child. Because of statutory constraints,
as discussed below, respondent's belief that he was the father of
Brett has no bearing on our analysis herein (see Social Services
Law § 384-b [8] [a]).
                              -3-                  519370

[Brett], he could not be found to have severely abused [Brett]
within the meaning of" Social Services Law § 384-b (8) (a) (i)
(Matter of Leonardo V., Jr. [Leonardo V.], 95 AD3d 1343, 1345
[2012]; see Matter of Tiarra D. [Philip C.], 124 AD3d 973, 975
[2015]; Matter of Nicholas S. [John T.], 107 AD3d 1307, 1311 n 3
[2013], lv denied 22 NY3d 854 [2013]). For the same reason,
respondent could not be found to have derivatively severely
abused either Kiaunte or Matthew (see id.; see also Social
Services Law § 384-b [8] [a] [iii] [A]). While we do not
disagree that respondent's conduct here was beyond reprehensible,
his depravity does not overcome the lack of a biological
relationship with any of the mother's children, which is
necessary for a finding of severe abuse under our law.

     Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
