| Matter of Leon K. (Marilyn O.) |
| 2010 NY Slip Op 00515 [69 AD3d 856] |
| January 19, 2010 |
| Appellate Division, Second Department |
| In the Matter of Leon K., an Infant. Administration for Children'sServices, Respondent; Marilyn O. et al., Appellants. (Proceeding No. 1.) In the Matter ofLashawn K., an Infant, Administration for Children's Services, Respondent; Marilyn O. et al.,Appellants. (Proceeding No. 2.) In the Matter of Tiffany R., an Infant. Administration forChildren's Services, Respondent; Marilyn O. et al., Appellants. (Proceeding No.3.) |
—[*1] Steven P. Forbes, Jamaica, N.Y., for appellant Milton R. (Anonymous). Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andEdward F.X. Hart of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler, and Clarie V. Merkine), attorney forthe children.
In three related child protective proceedings pursuant to Family Court Act article 10, thefather and mother separately appeal from an order of the Family Court, Queens County(McGowan, J.), dated November 5, 2008, which, upon a decision of the same court (Friedman,J.), dated December 4, 2006, inter alia, in effect, granted the petitioner's motion for summaryjudgment on the issue of their abuse of the child Lashawn K. and derivative abuse of the childrenLeon K. and Tiffany R., and on the issue of their severe abuse of the child Lashawn K. andderivative severe abuse of the children Leon K. and Tiffany R.
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,granting that branch of the petitioner's motion which was for summary judgment on the issue ofthe [*2]parents' severe abuse of Lashawn K. and derivativesevere abuse of the children Leon K. and Tiffany R., and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
"A determination in a criminal action may be given collateral estoppel effect in a FamilyCourt proceeding where the identical issue has been resolved, and the defendant in the criminalaction had a full and fair opportunity to litigate the issue of his or her criminal conduct" (Matter of Javon T., 64 AD3d 608,608 [2009]; see Matter of Ajay P. ,60 AD3d 681 [2009]; Matter ofDesiree C., 7 AD3d 522 [2004]). Here, the Administration for Children's Services(hereinafter ACS), with the support of the attorney for the children, moved for summaryjudgment against the parents on the issues of abuse and severe abuse, establishing that themother pleaded guilty to assault in the second degree (Penal Law § 120.05 [2]), and thefather pleaded guilty to attempted assault in the second degree (Penal Law §§110.00, 120.05 [2]), for their commission of the same abusive acts alleged in the petitions.Notably, in their plea allocutions, both parents admitted that the assault victim was the childLashawn K. Based upon these submissions, an award of summary judgment was proper on theissue of whether the parents abused Lashawn K. and derivatively abused Leon K. and Tiffany R.(see Family Ct Act § 1012 [e] [i], [ii]; see also Matter of Arianna L., 55 AD3d 733 [2008]; Matter of Lester M., 44 AD3d 944[2007]).
However, with respect to the issue of severe abuse, even though the convictions satisfiedSocial Services Law § 384-b (8) (a) (iii) (C), an award of summary judgment wasimproper, since, as ACS properly concedes on appeal, ACS failed to establish that it either made"diligent efforts to encourage and strengthen the parental relationship" which were unsuccessful,or that a demonstration of such efforts was excused (see Social Services Law §384-b [8] [a] [iv]; Matter of CandaceS., 38 AD3d 786, 788 [2007]; Matter of Latifah C., 34 AD3d 798 [2006]; see also Matter of Rebecca KK., 40AD3d 1195 [2007]). Because a finding of severe abuse "is admissible, and often central, in asubsequent proceeding to terminate parental rights (see Family Ct Act § 1051 [e];Social Services Law § 384-b [4] [e]), it must be based on clear and convincing evidence(see Family Ct Act § 1051 [e]), and must include, inter alia, a finding that 'theagency has made diligent efforts to encourage and strengthen the parental relationship, includingefforts to rehabilitate the [parent], when such efforts will not be detrimental to the best interestsof the child, and such efforts have been unsuccessful and are unlikely to be successful in theforeseeable future' " (Matter of LatifahC., 34 AD3d 798 [2006], quoting Social Services Law § 384-b [8] [a] [iv]). Inlight of this determination, an award of summary judgment on the issue of derivative severeabuse also was improper. We note that ACS may attempt to establish the allegations of severeabuse and derivative severe abuse in further fact-finding proceedings.
The parties' remaining contentions are without merit. Covello, J.P., Angiolillo, Balkin andSgroi, JJ., concur.