                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      521140
________________________________

In the Matter of MASON F. and
   Another, Alleged to be
   Severely Abused Children.

ULSTER COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent-
                    Appellant;

KATLIN G.,
                    Appellant-
                    Respondent.

LOUIS F.,
                    Appellant.

(Proceeding No. 1.)
______________________________              MEMORANDUM AND ORDER

In the Matter of MASON F. and
   Another, Alleged to be
   Neglected Children.

ULSTER COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent-
                    Appellant;

KATLIN G.,
                    Appellant-
                    Respondent.

LOUIS F.,
                    Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:   June 1, 2016
                                 -2-                521140

Before:     Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

                              __________


         Theodore J. Stein, Woodstock, for appellant-respondent.

         Diana L. Kidd, New Paltz, for appellant.

      Daniel Gartenstein, Ulster County Department of Social
Services, Kingston, for respondent-appellant.

         Lawrence Shelton, Kingston, attorney for the child.

                              __________


Aarons, J.

      Cross appeal from an order of the Family Court of Ulster
County (McGinty, J.), entered May 6, 2015, which partially
granted petitioner's applications, in two proceedings pursuant to
Family Ct Act article 10, to adjudicate the subject children to
be severely abused and/or neglected.

      Respondent and Louis F. (hereinafter the father) are the
parents of two boys (born in 2011 and 2013). In August 2014,
while living with respondent and her boyfriend, the older child
died due to blunt-impact injuries to his head, torso and
extremities.1 The younger child was temporarily removed from
respondent's home, and petitioner commenced these two Family Ct
Act article 10 proceedings against respondent, alleging that she
neglected the children and that she severely abused the older
child and derivatively severely abused the younger child by,
among other things, failing to get medical attention for the
older child when she was aware that he was covered in bruises and
in need of medical care.


     1
        As a result of the death of the older child, the
boyfriend was convicted of murder in the second degree.
                              -3-                521140

      Following a fact-finding hearing, Family Court determined
that respondent neglected and abused the older child and
derivatively neglected and abused the younger child. Family
Court, however, dismissed the petition alleging severe abuse,
finding that the evidence did not establish that respondent
displayed an utter disregard for human life resulting in the
older child's death. After a dispositional hearing, Family Court
entered an order of fact-finding and disposition, which, among
other things, granted custody of the younger child to the father.
Respondent appeals from Family Court's order to the extent that
it found that she abused the children.2 Petitioner and the
father cross-appeal from that part of Family Court's order which
dismissed petitioner's severe abuse petition.3

      Addressing first the allegations of severe abuse,
petitioner contends that Family Court erred in dismissing the
severe abuse petition. We agree. A determination of severe
abuse requires 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)]'" (Matter of Nicholas S. [John T.],
107 AD3d 1307, 1311 [2013], lv denied 22 NY3d 854 [2013], quoting
Social Services Law § 384-b [8] [a] [i]).4 A depraved
indifference is "'best understood as an utter disregard for the
value of human life – a willingness to act not because one


    2
        Respondent has abandoned any claim regarding Family
Court's finding of neglect and derivative neglect by not raising
it in her brief (see Matter of Wendy Q. v Jason Q., 94 AD3d 1371,
1372 n 2 [2012]).
    3
        Because the father advances the same arguments as
petitioner, it is unnecessary to decide whether the father has
standing in this appeal (see Social Services Law § 384-b [3] [b];
cf. Matter of Cadence SS. [Amy RR.-Joshua SS.], 103 AD3d 126,
127-129 [2012], lv denied 21 NY3d 853 [2013]).
    4
        A deceased child may be the subject of a severe abuse
petition (see Matter of Alijah C., 1 NY3d 375, 379-380 [2004]).
                               -4-                521140

intends harm, but because one simply [does not] care whether
grievous harm results or not[, and which reflects] wickedness,
evil or inhumanity, as manifested by brutal, heinous and
despicable acts'" (Matter of Dashawn W. [Antoine N.], 21 NY3d 36,
48 [2013], quoting People v Suarez, 6 NY3d 202, 214 [2005]). A
finding of severe abuse must be based upon clear and convincing
evidence (see Family Ct Act §§ 1046 [b] [ii]; 1051 [e]; Matter of
Rebecca KK., 61 AD3d 1035, 1037 [2009]; Matter of Julia BB.
[Diana BB.], 42 AD3d 208, 216 [2007], lvs denied 9 NY3d 815
[2007]), and issues of credibility are "'entrusted to the sound
discretion of Family Court and will not be disturbed unless
clearly unsupported by the record'" (Matter of Tiarra D. [Philip
C.], 124 AD3d 973, 974 [2015], quoting Matter of Justin CC. [Tina
CC.], 77 AD3d 1056, 1057 [2010], lv denied 16 NY3d 702 [2011]).5

      The evidence from the fact-finding hearing establishes that
approximately two weeks after respondent and her boyfriend
started dating, the boyfriend moved in with respondent and her
children. The boyfriend took care of the children during the day
while respondent worked. Respondent testified that the boyfriend
"looked like a good father with [the children]," but she also
admitted that the extent of the older child's bruising was
abnormal once they started living together. More critically, in
the days before the older child's death, respondent acknowledged
that it looked as though the older child had a "stick up his ass"
when he walked. Respondent was aware that the older child's
eating was abnormal and that he was sleeping more. She even
posted on her social media account that he was "horribly sick."
Respondent was likewise aware of bruises on the older child's
eye, stomach, groin and back and that he had vomit of a black
color and a bowel movement that consisted of a blood clot.

      Other witnesses also testified to the extensive and serious
injuries that the older child sustained prior to his death. One


     5
        In 2013, the Legislature amended Family Ct 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
Ct Act article 10 proceeding (see L 2013, ch 430, § 1; Matter of
Amirah L. [Candice J.], 118 AD3d 792, 794 [2014]).
                              -5-                521140

witness, who has a child with the boyfriend, testified that she
met with the boyfriend two days prior to the older child's death,
at which time the boyfriend told her that the older child looked
like he had been hit by a bus. This witness testified that upon
seeing the older child, he was pale, had a black eye, had three
bruises on one cheek and one bruise on the other, had a cut lip,
and had bruises on his arms and legs. The police officer and
paramedic, each of whom responded to the emergency call regarding
the older child, observed that, at the time of the child's death,
the older child had dried blood on his lips and had bruises all
over his body, including on his back, right gluteus, arms, legs,
torso, chest and abdominal area, genital and pelvic area, head
and face. The paramedic observed that the older child was found
with a clenched fist and constricted eyes suggesting that he had
experienced pain in the moments prior to his death. She also
testified that the newer bruises did not appear to be accidental,
and that the bruise on the older child's rib cage was in the
shape of a hand. The chief medical examiner who performed the
autopsy of the older child testified that, at the time of the
older child's death, there were over 60 bruises on his body and
the bruises had been inflicted at different times. The chief
medical examiner also explained that the older child had
sustained, among other things, a fractured rib and a severed
pancreas. He further noted an older abdominal injury that had
caused blood to accumulate in the older child's abdominal cavity
and that would have manifested symptoms similar to a stomach
virus and produced blackish-colored blood in his vomit.

      In view of the foregoing evidence presented at the
fact-finding hearing, we conclude that Family Court erred in
dismissing the severe abuse petition. Respondent demonstrated
reckless judgment and disregard for the safety and well-being of
the older child by allowing the boyfriend – who she had dated for
only a very brief period of time and knew went out at night to
procure illegal drugs – to care for her children and,
significantly, by permitting him to continue to care for her
children and inflict further abuse after the older child had
sustained serious and an abnormal degree of bruising, which she
unreasonably attributed to accidental causes and the explanations
provided by the boyfriend (see Matter of Nyheem E. [Jamila G.],
134 AD3d 517, 518 [2015]; Matter of Vivienne Bobbi-Hadiya S.
                              -6-                521140

[Makena Asanta Malika McK.], 126 AD3d 545, 546 [2015], lvs denied
25 NY3d 909, 1064 [2015]; Matter of Kayden E. [Luis E.], 88 AD3d
1205, 1206-1207 [2011], lv denied 18 NY3d 803 [2012]). To that
end, respondent was aware, or should have been aware, of the
older child's numerous injuries indicative of extensive, repeated
and accumulating abuse.

      Equally troubling is respondent's failure to seek
professional medical treatment for the older child
notwithstanding her knowledge of numerous visible injuries. Even
when respondent observed the older child having a bowel movement
that consisted of a blood clot, combined with her observation of
black fluid in his vomit, she still did not seek any medical
attention for him, which the chief medical examiner explained was
necessary with the presentation of those symptoms. Notably,
respondent's coworker, grandmother and even the boyfriend had
discussions with respondent about bringing the older child to a
doctor, but respondent, at most, only contemplated doing so. She
ultimately refused because of her concern that child protective
services was actively investigating her in an open case (see
Matter of George S. [Hilton A.], 135 AD3d 563, 564 [2016]; Matter
of Nyheem E. [Jamila G.], 134 AD3d at 518; Matter of Amirah L.
[Candice J.], 118 AD3d 792, 794 [2014]). In other words, any
failure of respondent, as a layperson, to realize the extent of
the older child's injuries played no role in her choice not to
seek medical attention for him. Rather, the driving force behind
her decision was to protect herself and avoid further scrutiny
from child protective services. While respondent justified her
reluctance to seek medical attention due to her belief that the
older child was anemic and that he bruised easily, the record is
devoid of any evidence to substantiate that claim. By placing
her interests above the health, well-being and medical needs of
the older child, who, at that young age, depended and relied on
respondent for care, we conclude that there was clear and
convincing evidence to support a finding that respondent acted
with a disregard for human life that resulted in serious injury
to the child and that the older child was severely abused by
respondent (see Matter of Dashawn W. [Antoine N.], 21 NY3d at 49;
Matter of George S. [Hilton A.], 135 AD3d at 564; Matter of
Amirah L. [Candice J.], 118 AD3d at 794).
                              -7-                521140

      We also agree with petitioner's allegation that the younger
child was derivatively severely abused. A finding of derivative
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] [internal
quotation marks and citation omitted], cert denied 540 US 1059
[2003]). The evidence, including testimony from a pediatrician
who examined the younger child three days after the older child
died, reflects that the younger child had a severe ear infection
that required medical care, in addition to "very inflamed
nipples" and a "suction injury or hickey" below the right nipple,
each of which were patently severe enough to be indicative of
trauma and possible sexual abuse. In view of this evidence, the
severity and extent of the older child's injuries and
respondent's failure to obtain medical care for the older child,
we find that the record as a whole demonstrates by clear and
convincing evidence fundamental flaws in respondent's
understanding of the duties of parenthood that are so profound as
to place any child in her care at substantial risk of harm (see
Matter of Marino S., 100 NY2d at 374-375; Matter of Dawn M.
[Michael M.], 134 AD3d 1197, 1198 [2015]; Matter of Brayden UU.
[Amanda UU.], 116 AD3d 1179, 1182 [2014]).

      Finally, in light of our findings of severe abuse and
derivative severe abuse, which, under the circumstances of this
case do not require remittal for a new dispositional hearing (cf.
Matter of Dashawn Q., 112 AD3d 1250, 1253 [2013]), we conclude
that Family Court's determination that the older child was abused
and the younger child was derivatively abused was amply supported
by a preponderance of the evidence and, thus, we see no basis to
disturb such determination (see Matter of Nyheem E. [Jamila G.],
134 AD3d at 519; Matter of Ashlyn Q. [Talia R.], 130 AD3d 1166,
1169 [2015]; Matter of Loraida R. [Lori S.], 97 AD3d 925, 927
[2012]).

     Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
                              -8-                  521140

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as dismissed that part of the
petition in proceeding No. 1 as failed to find that respondent
severely abused the subject children; petition granted to that
extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
