| Matter of Yamillette G. (Marlene M.) |
| 2010 NY Slip Op 05395 [74 AD3d 1066] |
| June 15, 2010 |
| Appellate Division, Second Department |
| In the Matter of Yamillette G. and Another, Children Alleged to beAbused and/or Severely Abused. Administration for Children's Services, Respondent; MarleneM. et al., Appellants. |
—[*1] Linda Braunsberg, Staten Island, N.Y., for appellant Edwin G. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andDeborah A. Brenner of counsel), for respondent. Mark Brandys, New York, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals,as limited by her brief, from stated portions of an order of disposition of the Family Court, KingsCounty (Ruiz, J.), dated June 15, 2009, which, inter alia, upon the granting of those branches ofthe petitioner's motion which were for summary judgment on the issues of whether she abusedand severely abused the child Hailey and derivatively abused and derivatively severely abusedthe child Yamillette, directed the continued placement of the child Yamillette in the custody ofthe Commissioner of Social Services of Kings County, and the father separately appeals, aslimited by his brief, from stated portions of the same order of disposition, which, inter alia, uponthe granting of those branches of the petitioner's motion which were for summary judgment onthe issues of whether he abused the child Hailey, for whom he was legally responsible, andderivatively abused and derivatively severely abused his biological child Yamillette, directed thecontinued placement of the child Yamillette in the custody of the Commissioner of SocialServices of Kings County.
Ordered that the order of disposition is affirmed insofar as appealed from, without costs ordisbursements.
After the child Hailey was admitted to a hospital and diagnosed with severe trauma to thehead on August 7, 2007, the Administration for Children's Services (hereinafter ACS) filed apetition against Marlene M. (hereinafter the mother) and Edwin G. (hereinafter the father),alleging that they had abused and severely abused the subject children, Hailey and Yamillette.The petition alleged that the mother was the biological mother of both children and that thefather was a person legally responsible (hereinafter PLR) for Hailey and the biological father ofher half sister Yamillette.
On August 10, 2007, Hailey died as a result of her injuries. On August 28, 2007, the [*2]father and mother were indicted on charges of murder,manslaughter, and related charges arising from Hailey's death. Thereafter, in 2008, the motherwas convicted, upon her plea of guilty, of manslaughter in the second degree, and the father alsowas convicted, upon his plea of guilty, of manslaughter in the first degree. Following theconvictions, ACS moved for summary judgment against the father and the mother on thepetition. As part of the relief requested in its motion, ACS requested a finding that reasonableefforts to return Yamillette to the home as set forth in Social Services Law § 384-b (8) (a)(iv) be excused since such efforts would not be in her best interests.
"A criminal conviction may be given collateral estoppel effect in a Family Court proceedingwhere (1) the identical issue has been resolved, and (2) the defendant in the criminal action had afull and fair opportunity to litigate the issue of his or her criminal conduct" (Matter of Ajay P., 60 AD3d 681,683 [2009]; see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d178, 182 [1994]; Matter of JavonT., 64 AD3d 608, 608 [2009]). Here, ACS, with the support of the attorney for thechildren, moved for summary judgment against the parents on the issues of abuse and severeabuse, establishing that the father pleaded guilty to manslaughter in the first degree, and themother pleaded guilty to manslaughter in the second degree for their commission of the sameabusive acts alleged in the petition. In their plea allocutions, both parents admitted that thevictim was the child Hailey. Based upon these submissions, an award of summary judgment wasproper on the issue of whether the father and mother abused Hailey and derivatively abusedYamillette (see Family Ct Act § 1012 [e] [i], [ii]; see also Matter of Daniel W., 37 AD3d842, 843 [2007]; Matter ofDiamond K., 31 AD3d 553, 554 [2006]).
With respect to the allegations of severe abuse, the criminal convictions of the father and themother satisfy Social Services Law § 384-b (8) (a) (i) and (iii). Moreover, theuncontroverted evidence of their criminal acts, which caused the death of Hailey, a 20-month-oldchild in their care, clearly and convincingly establishes that reasonable efforts to returnYamillette to the home should be excused as being detrimental to the best interests of Yamillette(see Social Services Law § 384-b [8] [a] [iv]; Matter of Marino S., 100NY2d 361, 372 [2003], cert denied sub nom. Marino S. v Angel Guardian Children & FamilyServs., 540 US 1059 [2003]; Matter of Jamel B., 47 AD3d 626, 627 [2008]; Matter of Kyle M., 5 AD3d 489,490 [2004]). Accordingly, an award of summary judgment was proper on the issues of whetherthe father derivatively severely abused Yamillette, and whether the mother severely abusedHailey and derivatively severely abused Yamillette.
We decline to reach the contentions raised improperly for the first time on appeal by thefather and the mother (see Farrington vBovis Lend Lease LMB, Inc., 51 AD3d 624, 626 [2008]; Mazzola v City of New York, 32AD3d 906, 907 [2006]). The remaining contention of the attorney for the child is notproperly before us on this appeal. Mastro, J.P., Eng, Leventhal and Roman, JJ., concur.