| Matter of Kayden E. (Luis E.) |
| 2013 NY Slip Op 07787 [111 AD3d 1094] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Kayden E., a Child Alleged to bePermanently Neglected. Otsego County Department of Social Services, Respondent; LuisE., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Nevaeh E., a ChildAlleged to be Permanently Neglected. Otsego County Department of Social Services,Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter ofAeneas E., a Child Alleged to be Abused. Otsego County Department of Social Services,Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 3.) In the Matter ofNoami E., a Child Alleged to be Permanently Neglected. Otsego County Department ofSocial Services, Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No.4.) |
—[*1] Steven Ratner, Otsego County Department of Social Services, Cooperstown, forOtsego County Department of Social Services, respondent. Dennis B. Laughlin, Cherry Valley, attorney for the child.
[*2]Stein, J. Appeals (1) from an order of the FamilyCourt of Otsego County (Lambert, J.), entered May 7, 2012, which granted petitioner'sapplications, in proceedings Nos. 1 and 2 pursuant to Social Services Law § 384-b,to adjudicate Kayden E. and Nevaeh E. to be permanently neglected children, andterminated respondents' parental rights, (2) from an order of said court, enteredSeptember 6, 2012, which, among other things, granted petitioner's application, inproceeding No. 3 pursuant to Family Ct Act article 10, to adjudicate Aeneas E. to be anabused child, and (3) from two orders of said court, entered May 7, 2012 and September6, 2012, which granted petitioner's application, in proceeding No. 4 pursuant to SocialServices Law § 384-b, to adjudicate Noami E. to be a permanently neglected child,and terminated respondents' parental rights.
Respondent Olivia E. (hereinafter the mother) and respondent Luis E. (hereinafterthe father) are the parents of Nevaeh E., Kayden E., Noami E. and Aeneas E. (born in2008, 2009, 2010 and 2011, respectively). In 2009, when Kayden was less than twomonths old, she was admitted to the hospital with serious, life-threatening injuries,including a skull fracture, severe brain damage and other bone fractures. Kayden andNevaeh were removed from respondents' home and, after proceedings were commencedagainst respondents pursuant to Family Ct Act article 10, Family Court, in a February2010 order, found that Kayden was abused, that Nevaeh was derivatively abused and thatboth children were severely abused. This Court affirmed those findings on appeal (Matter of Kayden E. [Luis E.],88 AD3d 1205 [2011], lv denied 18 NY3d 803 [2012]).
In May 2010, while the father's appeal was pending, petitioner filed two petitionsalleging that respondents had permanently neglected Kayden and Nevaeh (proceedingNos. 1 and 2) and seeking an order terminating respondents' parental rights and freeingthe subject children for adoption. Upon the births of Noami and Aeneas, those childrenwere also removed from respondents' custody and placed in foster care with theirsiblings. Petitions were subsequently filed alleging that Aeneas was, among other things,abused (proceeding No. 3) and that Noami was permanently neglected (proceeding No.4).[FN1] After fact-finding hearings on each of the foregoing petitions, Family Court, in threeseparate orders, found that respondents had permanently neglected Kayden, Nevaeh andNoami and had derivatively abused Aeneas. Following dispositional hearings, FamilyCourt terminated respondents' parental rights and freed Kayden, Nevaeh and Noami foradoption and, with respect to Aeneas, issued an order continuing his placement inpetitioner's custody and directing respondents to cooperate with various services onreferral by petitioner. The father now appeals, challenging the findings that hepermanently neglected Kayden, Nevaeh and Noami and derivatively abused Aeneas, aswell as the [*3]dispositional orders enteredthereon.[FN2]
We affirm. The father initially challenges Family Court's finding that Aeneas wasderivatively abused. Proof that one child has been abused is admissible evidence of theabuse of another child (see Family Ct Act § 1046 [a] [i]; Matter of Paige WW. [CharlesXX.], 71 AD3d 1200, 1202 [2010]). While such proof " 'typically may not serveas the sole basis for [such] a finding' " (Matter of Joanne II. [Thomas II.], 100 AD3d 1204, 1205[2012], quoting Matter ofCadejah AA., 33 AD3d 1155, 1157 [2006]; see Family Ct Act §1046 [a] [i]), it can establish derivative abuse when the conduct at issue " 'evidence[s]fundamental flaws in the respondent's understanding of the duties of parenthood' soprofound as to place any child in his or her care at substantial risk of harm" (Matter ofJoanne II. [Thomas II.], 100 AD3d at 1205, quoting Matter of Evelyn B., 30 AD3d913, 915 [2006], lv denied 7 NY3d 713 [2006]; see Matter of PaigeWW. [Charles XX.], 71 AD3d at 1203; Matter of Cadejah AA., 33 AD3d at1157).
Here, the hearing testimony established that, although the father received counselingservices, he refused to acknowledge that Kayden had been abused or that respondentswere responsible for such abuse, and he provided incomplete and implausibleexplanations for how Kayden's severe injuries were sustained.[FN3] Indeed, the father persists in challenging the underlying determination that he severelyabused Kayden, notwithstanding his unsuccessful appeal to this Court (Matter ofKayden E. [Luis E.], 88 AD3d at 1206). The severe abuse inflicted upon Kayden,together with the father's inability or unwillingness to take responsibility for her injuries,evidences such fundamental flaws in his understanding of his parental duties as [*4]to place any child in his care at a substantial risk of harm.Deferring to Family Court's credibility assessments, we are satisfied that the finding ofderivative abuse of Aeneas by the father is supported by a preponderance of the evidence(see Family Ct Act § 1046 [b] [i]; Matter of Nicholas S. [John T.], 107 AD3d 1307, 1310[2013], lv denied 22 NY3d 854 [2013]).
We similarly reject the father's claim that Family Court erred by finding that hepermanently neglected Kayden, Nevaeh and Noami. In this regard, "petitioner wasrequired to demonstrate, by clear and convincing evidence, that [the father] failedsubstantially and continuously or repeatedly to maintain contact with or plan for thefuture of the child[ren], although physically and financially able to do so for a period ofat least one year or 15 out of the most recent 22 months following the date the childrenwere taken into petitioner's care" (Matter of Joannis P. [Joseph Q.], 110 AD3d 1188,1190-1191 [2013] [internal quotation marks and citations omitted]; see SocialServices Law § 384-b [7] [a]; Matter of Jayden J. [Johanna K.], 100 AD3d 1207, 1208[2012], lv denied 20 NY3d 860 [2013]).[FN4] Failure to plan and failure to maintain contact are alternative bases for a finding ofpermanent neglect (see Matterof Chorus SS. [Elatisha SS.], 93 AD3d 1097, 1098 [2012], lv denied 19NY3d 807 [2012]), and the fact that the father maintained contact with petitioner andparticipated in services offered to him does not preclude a finding of permanent neglectif it is established that he failed and/or refused to plan for the children's future byacknowledging and correcting the conditions that led to the removal of the children inthe first instance (see Matter ofNeal TT. [Deborah UU.], 97 AD3d 869, 871 [2012]; Matter of Chorus SS.[Elatisha SS.], 93 AD3d at 1099; Matter of Tailer Q. [Melody Q.], 86 AD3d 673, 674[2011]).
Here, a critical service plan goal in the father's case was for him to acknowledge thecause of and responsibility for Kayden's injuries. Nonetheless, although the father begancounseling, he did not complete it, and the evidence clearly reflects that he persistentlyrefused to acknowledge that Kayden was severely abused or to accept any responsibilityfor her injuries, and he was unable to provide an acceptable explanation for whathappened to this child. In fact, as previously noted, the father continues to dispute onappeal—as he did before Family Court—the prior finding that he wasresponsible for the abuse. These failures have prevented the father from gaining anyinsight into how to address the issues that led to the children's removal from his care inthe first instance and, contrary to the father's contention, petitioner was "not obligated toaccommodate [his] refusal to admit his . . . role in the abuse by formulatingan alternative plan, i.e., one that would permit [the father] to receive treatment withoutadmitting that such abuse did in fact occur" (Matter of Michelle F., 222 AD2d747, 748 [1995]). Accordingly, the record [*5]clearlysupports Family Court's finding that the father permanently neglected Nevaeh, Kaydenand Noami.
Finally, Family Court's decision to terminate the father's parental rights with respectto Nevaeh, Kayden and Noami, rather than enter a suspended judgment, was a properexercise of its discretion. " 'Following an adjudication of permanent neglect, the soleconcern at a dispositional hearing is the best interests of the child[ren] and there is nopresumption that any particular disposition, including the return of [the] child[ren] to aparent, promotes such interests' " (Matter of Johanna M. [John L.], 103 AD3d 949, 951[2013], lv denied 21 NY3d 855 [2013], quoting Matter of Angelica VV., 53AD3d 732, 733 [2008]; see Family Ct Act § 631; Matter of TailerQ. [Melody Q.], 86 AD3d at 675). Here, the siblings have resided together in fostercare since their removal from respondents' care. The father, himself, testified that he doesnot acknowledge that Kayden was abused and takes virtually no responsibility for herinjuries.[FN5] Although he was permitted to have visitation with Noami, he missed approximately 15visits. Further, at the time of Noami's dispositional hearing, the father was homeless andunemployed. Notably, the mother and the father each accused one another of domesticviolence and the father admitted to engaging in at least one act of domestic violence.Viewing the evidence in its entirety and according appropriate deference to FamilyCourt's choice of dispositional alternatives (see Matter of James J. [James K.], 97 AD3d 936, 939[2012]; Matter of Jyashia RR.[John VV.], 92 AD3d 982, 984 [2012]; Matter of Tailer Q. [Melody Q.],86 AD3d at 675), we find a sound a substantial basis in the record for its determinationthat termination of the father's parental rights is in the best interests of the three children(see Matter of Joannis P. [Joseph Q.], 110 AD3d at 1192; Matter of James J.[James K.], 97 AD3d at 939), and we decline to disturb it.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the appeal from the orderentered May 7, 2012 in proceeding No. 4 is dismissed, without costs. Ordered that theorders entered May 7, 2012 in proceeding Nos. 1 and 2 and September 6, 2012 inproceeding Nos. 3 and 4 are affirmed, without costs.
Footnote 1: In a December 2010order, Family Court found that Noami was derivatively abused by respondents.
Footnote 2: The father's appeal fromthe May 2012 fact-finding order with respect to Noami must be dismissed, as no appealas of right lies from an order of fact-finding in a permanent neglect proceeding (see Matter of Michael JJ. [GeraldJJ.], 101 AD3d 1288, 1289 n 1 [2012], lv denied 20 NY3d 860 [2013]).However, the father's appeal from the dispositional order in that proceeding brings up forreview the fact-finding order (see Matter of Arianna I. [Roger I.], 100 AD3d 1281, 1282n 1 [2012]).
Footnote 3: As we stated in ourprior decision, Kayden's injuries "included a skull fracture, severe brain damage andsubdural bleeding, multiple rib fractures and a fractured femur, were life-threatening andrequired extensive treatment, including a ventilator, anticonvulsive medication, and apermanent ventriculoperitoneal shunt to drain excess cerebrospinal fluid into herabdominal cavity [and] left Kayden with a severe seizure disorder, impaired vision,spastic quadriparesis, and such delayed cognitive development that she will essentiallyremain an 'infant' for the rest of her life" (Matter of Kayden E. [Luis E., 88 AD3dat 1206).
Footnote 4: We note that the fatherdoes not dispute the issue of whether petitioner used diligent efforts to encourage andstrengthen his relationship with the children (see Matter of Alysheionna HH. [Tara II.], 101 AD3d 1413,1414 [2012], lv denied 20 NY3d 861 [2013]; see also Social ServicesLaw § 384-b [7] [a]).
Footnote 5: The father later testifiedthat he feels "somewhat responsible" because at some point Kayden was lying on hischest and fell off, and he grabbed her, possibly causing her leg fracture.