| Matter of Dashawn W. (Antoine N.) |
| 2010 NY Slip Op 04252 [73 AD3d 574] |
| May 20, 2010 |
| Appellate Division, First Department |
| In the Matter of Dashawn W. and Others, Children Alleged to beAbused. Administration for Children's Services, Appellant; Antoine N., Respondent, et al.,Respondent. |
—[*1] Elisa Barnes, New York, for Antoine N., respondent Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), LawGuardian.
Order of fact-finding, Family Court, New York County (Sara P. Schechter, J.), entered on orabout February 28, 2008, which, insofar as appealed from, dismissed the charge of severe abuseagainst respondent father as to the child Jayquan N., unanimously reversed, on the law, withoutcosts, and the matter remanded for further proceedings to determine whether the agencyexercised diligent efforts or whether such efforts should be excused.
The court believed that People vSuarez (6 NY3d 202 [2005]), a criminal case that noted that conduct evincing adepraved indifference to human life generally cannot occur in a one-on-one situation,constrained it from making a finding of severe abuse pursuant to Family Court Act § 1051because there was insufficient evidence to determine whether the father'sconduct—causing his five-month-old baby to sustain, on separate occasions, a fracturedclavicle and four to seven broken ribs—evinced a depraved indifference to the life of thechild. However, the definition of severe abuse set forth in Social Services Law § 384-b (8)(a) encompasses conduct which is either intentional or reckless, unlike Penal Law§§ 125.25 (1) and (2), which, pursuant to Suarez, are almost alwaysmutually exclusive. In any event, Suarez recognized that in cases involving abusedchildren, conduct evincing depraved indifference to human life may be present in a one-on-onesituation (6 NY3d at 213).
Clear and convincing evidence established that the baby sustained the serious physicalinjuries while in the care of the father, and the parents failed to provide an adequate explanation.Additionally, the court was entitled to draw the strongest negative inference against the fatherbased on his failure to testify in the proceedings (see Matter of Nassau County Dept. ofSocial Servs. v Denise J., 87 NY2d [*2]73, 79-80 [1995]).The father's conduct directed at the infant was sufficient to demonstrate depraved indifference tothe child's life (see People v Goodridge, 251 AD2d 85 [1998]).
However, due to the court's misinterpretation of Suarez, it never reached the issue ofwhether the agency exercised diligent efforts to strengthen the parental relationship (seeSocial Services Law § 384-b [8] [a] [i], [iv]). The matter should be remanded for furtherproceedings to determine if the agency exerted such efforts or whether such efforts are excused,since a finding of severe abuse is admissible in a subsequent proceeding to terminate parentalrights (see Matter of Leon K. [MarilynO.], 69 AD3d 856, 857 [2010]). Concur—Gonzalez, P.J., Friedman, DeGrasse,Manzanet-Daniels and RomÁn, JJ.