| Matter of Kayden E. (Luis E.) |
| 2011 NY Slip Op 07549 [88 AD3d 1205] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kayden E. and Another, Children Alleged to beAbused and/or Neglected and/or Severely Abused. Otsego County Department of SocialServices, Respondent; Luis E., Appellant, et al., Respondent. |
—[*1] Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, for OtsegoCounty Department of Social Services, respondent. Dennis B. Laughlin, Cherry Valley, attorney for the children.
Malone Jr., J. Appeals from three orders of the Family Court of Otsego County (Lambert, J.),entered February 19, 2010, May 14, 2010 and June 8, 2010, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate [*2]respondents' children to be, among other things, abused.
Respondent Luis E. (hereinafter respondent) and respondent Olivia E. are the parents of thesubject children, Nevaeh E. (born in 2008) and Kayden E. (born in 2009). In April 2009, Kaydenwas admitted to the hospital with extensive injuries, including an acute skull fracture, massivetrauma to her brain and multiple other bone fractures. The children were temporarily removedfrom the home and petitioner commenced this proceeding against both parents, initially allegingthat Kayden was an abused, severely abused and neglected child and that Nevaeh wasderivatively neglected; thereafter the petition was amended to add allegations that Nevaeh wasderivatively abused and derivatively severely abused. Following a fact-finding hearing, FamilyCourt found that Kayden was abused, Nevaeh was derivatively abused and that both girls wereseverely abused. Respondents then waived their right to a hearing and consented to the entry of adispositional order placing the children in foster care. Petitioner thereafter successfully moved toterminate its obligation to make reasonable efforts to reunite the family. Only respondent appealsfrom the fact-finding and dispositional orders, as well as the order relieving petitioner of itsobligation to make reasonable efforts to reunite him with the children.
Initially, respondent's appeal from the dispositional order entered May 14, 2010 must bedismissed because that order was entered with his consent (see CPLR 5511; Matter of Cheyenne QQ., 37 AD3d977, 977-978 [2007]). As for the fact-finding order, Family Court's finding that Kayden is aseverely abused child is supported by clear and convincing evidence (see Family Ct Act§ 1051 [e]; Social Services Law § 384-b [8] [a] [i]; Matter of Rebecca KK., 61 AD3d1035, 1037 [2009]; Matter of JuliaBB., 42 AD3d 208, 216 [2007], lv denied 9 NY3d 815 [2007]). The evidenceestablished that Kayden's injuries, which included a skull fracture, severe brain damage andsubdural bleeding, multiple rib fractures and a fractured femur, were life-threatening and requiredextensive treatment, including a ventilator, anticonvulsive medication, and a permanentventriculoperitoneal shunt to drain excess cerebrospinal fluid into her abdominal cavity. Theinjuries left Kayden with a severe seizure disorder, impaired vision, spastic quadriparesis, andsuch delayed cognitive development that she will essentially remain an "infant" for the rest of herlife. A treating physician testified that Kayden's brain injuries were acute, meaning that they hadlikely occurred within 24 hours of her admission to the hospital, and had been caused by a severeblow to the head with a high degree of force. Although respondent surmised that Kayden'sinjuries were accidental, his explanations for the injuries were not consistent with the testimonyof the physicians who treated her, one of whom specifically testified that the injuries wereinflicted and that the trauma was nonaccidental. Giving deference to Family Court's credibilitydeterminations (see Matter of Zachary MM., 276 AD2d 876, 881 [2000]), andconsidering that respondent and the child's mother were the only ones who had contact withKayden in the time period in which her injuries were sustained, there is no basis upon which todisturb the court's determination that respondent is responsible for the severe abuse of Kayden.Contrary to respondent's contention, the finding of derivative abuse as to Nevaeh is appropriatebecause the abuse of Kayden "is so closely connected with the care of [Nevaeh] as to indicatethat [Nevaeh] is equally at risk" if she were to remain in respondent's care (Matter of MarinoS., 100 NY2d 361, 374 [2003], cert denied 540 US 1059 [2003]). [*3]Furthermore, based on the foregoing, Family Court's findings ofabuse and neglect as to Kayden, as well as the findings of derivative abuse and neglect as toNevaeh, are supported by a preponderance of the evidence (see Family Ct Act §1012 [e] [i]; 1012 [f]; § 1046 [b] [i]).
Finally, we are not persuaded by respondent's contention that Family Court's orderterminating petitioner's reasonable efforts obligation was made in error. Such reasonable effortsare no longer required where, as here, a parent has subjected a child to "aggravatedcircumstances" such as severe abuse (Family Ct Act § 1039-b [b] [1]; see §1012 [j]; Social Services Law § 384-b [8]; Matter of Rebecca KK., 61 AD3d at1037). Respondent's remaining contentions have been considered and found to be unpersuasive.
Mercure, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the orders enteredFebruary 19, 2010 and June 8, 2010 are affirmed, without costs. Ordered that the appeal from theorder entered May 14, 2010 is dismissed, without costs.