State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 521140 

________________________________

In the Matter of MASON F. and 

Another, Alleged to be 

Severely Abused Children.

ULSTER COUNTY DEPARTMENT OF 

SOCIAL SERVICES,

RespondentAppellant;

KATLIN G.,

AppellantRespondent.

LOUIS F.,

Appellant.

(Proceeding No. 1.)

______________________________ MEMORANDUM AND ORDER

In the Matter of MASON F. and 

Another, Alleged to be 

Neglected Children.

ULSTER COUNTY DEPARTMENT OF 

SOCIAL SERVICES,

RespondentAppellant;

KATLIN G.,

AppellantRespondent.

LOUIS F.,

Appellant.

(Proceeding No. 2.)

________________________________

Calendar Date: June 1, 2016
-2- 521140 

Before: Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

__________

Theodore J. Stein, Woodstock, for appellant-respondent.

Diana L. Kidd, New Paltz, for appellant.

Daniel Gartenstein, Ulster County Department of Social

Services, Kingston, for respondent-appellant.

Lawrence Shelton, Kingston, attorney for the child.

__________

Aarons, J.

Cross appeal from an order of the Family Court of Ulster

County (McGinty, J.), entered May 6, 2015, which partially

granted petitioner's applications, in two proceedings pursuant to

Family Ct Act article 10, to adjudicate the subject children to

be severely abused and/or neglected.

Respondent and Louis F. (hereinafter the father) are the

parents of two boys (born in 2011 and 2013). In August 2014,

while living with respondent and her boyfriend, the older child

died due to blunt-impact injuries to his head, torso and

extremities.1 The younger child was temporarily removed from

respondent's home, and petitioner commenced these two Family Ct

Act article 10 proceedings against respondent, alleging that she

neglected the children and that she severely abused the older

child and derivatively severely abused the younger child by,

among other things, failing to get medical attention for the

older child when she was aware that he was covered in bruises and

in need of medical care. 

1 As a result of the death of the older child, the

boyfriend was convicted of murder in the second degree.
-3- 521140 

Following a fact-finding hearing, Family Court determined

that respondent neglected and abused the older child and

derivatively neglected and abused the younger child. Family

Court, however, dismissed the petition alleging severe abuse,

finding that the evidence did not establish that respondent

displayed an utter disregard for human life resulting in the

older child's death. After a dispositional hearing, Family Court

entered an order of fact-finding and disposition, which, among

other things, granted custody of the younger child to the father. 

Respondent appeals from Family Court's order to the extent that

it found that she abused the children.2 Petitioner and the

father cross-appeal from that part of Family Court's order which

dismissed petitioner's severe abuse petition.3 

Addressing first the allegations of severe abuse,

petitioner contends that Family Court erred in dismissing the

severe abuse petition. We agree. A determination of severe

abuse requires that "'the child [is] an abused child as a result

of reckless or intentional acts of the parent committed under

circumstances evincing a depraved indifference to human life,

which result in serious physical injury to the child as defined

in [Penal Law § 10.00 (10)]'" (Matter of Nicholas S. [John T.],

107 AD3d 1307, 1311 [2013], lv denied 22 NY3d 854 [2013], quoting

Social Services Law § 384-b [8] [a] [i]).4 A depraved

indifference is "'best understood as an utter disregard for the

value of human life – a willingness to act not because one

2 Respondent has abandoned any claim regarding Family

Court's finding of neglect and derivative neglect by not raising

it in her brief (see Matter of Wendy Q. v Jason Q., 94 AD3d 1371,

1372 n 2 [2012]). 

3 Because the father advances the same arguments as

petitioner, it is unnecessary to decide whether the father has

standing in this appeal (see Social Services Law § 384-b [3] [b];

cf. Matter of Cadence SS. [Amy RR.-Joshua SS.], 103 AD3d 126,

127-129 [2012], lv denied 21 NY3d 853 [2013]). 

4 A deceased child may be the subject of a severe abuse

petition (see Matter of Alijah C., 1 NY3d 375, 379-380 [2004]). 
-4- 521140 

intends harm, but because one simply [does not] care whether

grievous harm results or not[, and which reflects] wickedness,

evil or inhumanity, as manifested by brutal, heinous and

despicable acts'" (Matter of Dashawn W. [Antoine N.], 21 NY3d 36,

48 [2013], quoting People v Suarez, 6 NY3d 202, 214 [2005]). A

finding of severe abuse must be based upon clear and convincing

evidence (see Family Ct Act §§ 1046 [b] [ii]; 1051 [e]; Matter of

Rebecca KK., 61 AD3d 1035, 1037 [2009]; Matter of Julia BB.

[Diana BB.], 42 AD3d 208, 216 [2007], lvs denied 9 NY3d 815

[2007]), and issues of credibility are "'entrusted to the sound

discretion of Family Court and will not be disturbed unless

clearly unsupported by the record'" (Matter of Tiarra D. [Philip

C.], 124 AD3d 973, 974 [2015], quoting Matter of Justin CC. [Tina

CC.], 77 AD3d 1056, 1057 [2010], lv denied 16 NY3d 702 [2011]).5 

The evidence from the fact-finding hearing establishes that

approximately two weeks after respondent and her boyfriend

started dating, the boyfriend moved in with respondent and her

children. The boyfriend took care of the children during the day

while respondent worked. Respondent testified that the boyfriend

"looked like a good father with [the children]," but she also

admitted that the extent of the older child's bruising was

abnormal once they started living together. More critically, in

the days before the older child's death, respondent acknowledged

that it looked as though the older child had a "stick up his ass"

when he walked. Respondent was aware that the older child's

eating was abnormal and that he was sleeping more. She even

posted on her social media account that he was "horribly sick." 

Respondent was likewise aware of bruises on the older child's

eye, stomach, groin and back and that he had vomit of a black

color and a bowel movement that consisted of a blood clot. 

Other witnesses also testified to the extensive and serious

injuries that the older child sustained prior to his death. One

5 In 2013, the Legislature amended Family Ct Act § 1051 (e)

so that a "diligent efforts" finding is no longer a required

element of a finding of severe abuse in the context of a Family

Ct Act article 10 proceeding (see L 2013, ch 430, § 1; Matter of

Amirah L. [Candice J.], 118 AD3d 792, 794 [2014]). 
-5- 521140 

witness, who has a child with the boyfriend, testified that she

met with the boyfriend two days prior to the older child's death,

at which time the boyfriend told her that the older child looked

like he had been hit by a bus. This witness testified that upon

seeing the older child, he was pale, had a black eye, had three

bruises on one cheek and one bruise on the other, had a cut lip,

and had bruises on his arms and legs. The police officer and

paramedic, each of whom responded to the emergency call regarding

the older child, observed that, at the time of the child's death,

the older child had dried blood on his lips and had bruises all

over his body, including on his back, right gluteus, arms, legs,

torso, chest and abdominal area, genital and pelvic area, head

and face. The paramedic observed that the older child was found

with a clenched fist and constricted eyes suggesting that he had

experienced pain in the moments prior to his death. She also

testified that the newer bruises did not appear to be accidental,

and that the bruise on the older child's rib cage was in the

shape of a hand. The chief medical examiner who performed the

autopsy of the older child testified that, at the time of the

older child's death, there were over 60 bruises on his body and

the bruises had been inflicted at different times. The chief

medical examiner also explained that the older child had

sustained, among other things, a fractured rib and a severed

pancreas. He further noted an older abdominal injury that had

caused blood to accumulate in the older child's abdominal cavity

and that would have manifested symptoms similar to a stomach

virus and produced blackish-colored blood in his vomit. 

In view of the foregoing evidence presented at the

fact-finding hearing, we conclude that Family Court erred in

dismissing the severe abuse petition. Respondent demonstrated

reckless judgment and disregard for the safety and well-being of

the older child by allowing the boyfriend – who she had dated for

only a very brief period of time and knew went out at night to

procure illegal drugs – to care for her children and,

significantly, by permitting him to continue to care for her

children and inflict further abuse after the older child had

sustained serious and an abnormal degree of bruising, which she

unreasonably attributed to accidental causes and the explanations

provided by the boyfriend (see Matter of Nyheem E. [Jamila G.],

134 AD3d 517, 518 [2015]; Matter of Vivienne Bobbi-Hadiya S.
-6- 521140 

[Makena Asanta Malika McK.], 126 AD3d 545, 546 [2015], lvs denied

25 NY3d 909, 1064 [2015]; Matter of Kayden E. [Luis E.], 88 AD3d

1205, 1206-1207 [2011], lv denied 18 NY3d 803 [2012]). To that

end, respondent was aware, or should have been aware, of the

older child's numerous injuries indicative of extensive, repeated

and accumulating abuse. 

Equally troubling is respondent's failure to seek

professional medical treatment for the older child

notwithstanding her knowledge of numerous visible injuries. Even

when respondent observed the older child having a bowel movement

that consisted of a blood clot, combined with her observation of

black fluid in his vomit, she still did not seek any medical

attention for him, which the chief medical examiner explained was

necessary with the presentation of those symptoms. Notably,

respondent's coworker, grandmother and even the boyfriend had

discussions with respondent about bringing the older child to a

doctor, but respondent, at most, only contemplated doing so. She

ultimately refused because of her concern that child protective

services was actively investigating her in an open case (see

Matter of George S. [Hilton A.], 135 AD3d 563, 564 [2016]; Matter

of Nyheem E. [Jamila G.], 134 AD3d at 518; Matter of Amirah L.

[Candice J.], 118 AD3d 792, 794 [2014]). In other words, any

failure of respondent, as a layperson, to realize the extent of

the older child's injuries played no role in her choice not to

seek medical attention for him. Rather, the driving force behind

her decision was to protect herself and avoid further scrutiny

from child protective services. While respondent justified her

reluctance to seek medical attention due to her belief that the

older child was anemic and that he bruised easily, the record is

devoid of any evidence to substantiate that claim. By placing

her interests above the health, well-being and medical needs of

the older child, who, at that young age, depended and relied on

respondent for care, we conclude that there was clear and

convincing evidence to support a finding that respondent acted

with a disregard for human life that resulted in serious injury

to the child and that the older child was severely abused by

respondent (see Matter of Dashawn W. [Antoine N.], 21 NY3d at 49;

Matter of George S. [Hilton A.], 135 AD3d at 564; Matter of

Amirah L. [Candice J.], 118 AD3d at 794). 
-7- 521140 

We also agree with petitioner's allegation that the younger

child was derivatively severely abused. A finding of derivative

severe abuse "may be predicated upon the common understanding

that a parent whose judgment and impulse control are so defective

as to harm one child in his or her care is likely to harm others

as well" (Matter of Marino S., 100 NY2d 361, 374 [2003] [internal

quotation marks and citation omitted], cert denied 540 US 1059

[2003]). The evidence, including testimony from a pediatrician

who examined the younger child three days after the older child

died, reflects that the younger child had a severe ear infection

that required medical care, in addition to "very inflamed

nipples" and a "suction injury or hickey" below the right nipple,

each of which were patently severe enough to be indicative of

trauma and possible sexual abuse. In view of this evidence, the

severity and extent of the older child's injuries and

respondent's failure to obtain medical care for the older child,

we find that the record as a whole demonstrates by clear and

convincing evidence fundamental flaws in respondent's

understanding of the duties of parenthood that are so profound as

to place any child in her care at substantial risk of harm (see

Matter of Marino S., 100 NY2d at 374-375; Matter of Dawn M.

[Michael M.], 134 AD3d 1197, 1198 [2015]; Matter of Brayden UU.

[Amanda UU.], 116 AD3d 1179, 1182 [2014]).

Finally, in light of our findings of severe abuse and

derivative severe abuse, which, under the circumstances of this

case do not require remittal for a new dispositional hearing (cf.

Matter of Dashawn Q., 112 AD3d 1250, 1253 [2013]), we conclude

that Family Court's determination that the older child was abused

and the younger child was derivatively abused was amply supported

by a preponderance of the evidence and, thus, we see no basis to

disturb such determination (see Matter of Nyheem E. [Jamila G.],

134 AD3d at 519; Matter of Ashlyn Q. [Talia R.], 130 AD3d 1166,

1169 [2015]; Matter of Loraida R. [Lori S.], 97 AD3d 925, 927

[2012]). 

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.
-8- 521140 

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as dismissed that part of the

petition in proceeding No. 1 as failed to find that respondent

severely abused the subject children; petition granted to that

extent; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court