In re East

• Decision Date: 21 November 2013
• Parties: In the Matter of KAYDEN E., Alleged to be a Permanently Neglected Child. Otsego County Department of Social Services, Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Nevaeh E., Alleged to be a Permanently Neglected Child. Otsego County Department of Social Services, Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter of Aeneas E., Alleged to be an Abused Child. Otsego County Department of Social Services, Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 3.) In the Matter of Noami E., Alleged to be a Permanently Neglected Child. Otsego County Department of Social Services, Respondent; Luis E., Appellant, et al., Respondent. (Proceeding No. 4.).
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1094
975 N.Y.S.2d 789
2013 N.Y. Slip Op. 07787

In the Matter of KAYDEN E., Alleged to be a Permanently Neglected Child.
Otsego County Department of Social Services, Respondent;
Luis E., Appellant, et al., Respondent. (Proceeding No. 1.)
In the Matter of Nevaeh E., Alleged to be a Permanently Neglected Child.
Otsego County Department of Social Services, Respondent;
Luis E., Appellant, et al., Respondent. (Proceeding No. 2.)
In the Matter of Aeneas E., Alleged to be an Abused Child.
Otsego County Department of Social Services, Respondent;
Luis E., Appellant, et al., Respondent. (Proceeding No. 3.)
In the Matter of Noami E., Alleged to be a Permanently Neglected Child.
Otsego County Department of Social Services, Respondent;
Luis E., Appellant, et al., Respondent. (Proceeding No. 4.).

Supreme Court, Appellate Division, Third Department, New York.

Nov. 21, 2013.

[975 N.Y.S.2d 791]

Paul J. Connolly, Delmar, for appellant.

Steven Ratner, Otsego County Department of Social Services, Cooperstown, for Otsego County Department of Social Services, respondent.

Dennis B. Laughlin, Cherry Valley, attorney for the child.

Before: LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ.

STEIN, J.

Appeals (1) from an order of the Family Court of Otsego County (Lambert, J.), entered May 7, 2012, which granted petitioner's applications, in proceedings Nos. 1 and 2 pursuant to Social Services Law § 384–b, to adjudicate Kayden E. and Nevaeh E. to be permanently neglected children, and terminated respondents' parental rights, (2) from an order of said court, entered September 6, 2012, which, among other things, granted petitioner's application, in proceeding No. 3 pursuant to Family Ct. Act article 10, to adjudicate Aeneas E. to be an abused child, and (3) from two orders of said court, entered May 7, 2012 and September 6, 2012, which granted petitioner's application, in proceeding No. 4 pursuant to Social Services Law § 384–b, to adjudicate Noami E. to be a permanently neglected child, and terminated respondents' parental rights.

Respondent Olivia E. (hereinafter the mother) and respondent Luis E. (hereinafter the father) are the parents of Nevaeh E., Kayden E., Noami E. and Aeneas E. (born in 2008, 2009, 2010 and 2011, respectively). In 2009, when Kayden was less than two months old, she was admitted to the hospital with serious, life-threatening injuries, including a skull fracture, severe brain damage and other bone fractures. Kayden and Nevaeh were removed from respondents' home and, after proceedings were commenced against respondents pursuant to Family Ct. Act article 10, Family Court, in a February 2010 order, found that Kayden was abused, that Nevaeh was derivatively abused and that both children were severely abused. This Court affirmed those findings on appeal (Matter of Kayden E. [Luis E.], 88 A.D.3d 1205, 931 N.Y.S.2d 744 [2011], lv. denied18 N.Y.3d 803, 938 N.Y.S.2d 860, 962 N.E.2d 285 [2012] ).

In May 2010, while the father's appeal was pending, petitioner filed two petitions alleging that respondents had permanently neglected Kayden and Nevaeh (proceeding Nos. 1 and 2) and seeking an order terminating respondents' parental rights and freeing the subject children for adoption. Upon the births of Noami and Aeneas, those children were also removed from respondents' custody and placed in foster care with their siblings. Petitions

[975 N.Y.S.2d 792]

were subsequently filed alleging that Aeneas was, among other things, abused (proceeding No. 3) and that Noami was permanently neglected (proceeding No. 4). ¹ After fact-finding hearings on each of the foregoing petitions, Family Court, in three separate orders, found that respondents had permanently neglected Kayden, Nevaeh and Noami and had derivatively abused Aeneas. Following dispositional hearings, Family Court terminated respondents' parental rights and freed Kayden, Nevaeh and Noami for adoption and, with respect to Aeneas, issued an order continuing his placement in petitioner's custody and directing respondents to cooperate with various services on referral by petitioner. The father now appeals, challenging the findings that he permanently neglected Kayden, Nevaeh and Noami and derivatively abused Aeneas, as well as the dispositional orders entered thereon.²

We affirm. The father initially challenges Family Court's finding that Aeneas was derivatively abused. Proof that one child has been abused is admissible evidence of the abuse of another child ( seeFamily Ct. Act § 1046[a][i]; Matter of Paige WW. [Charles XX.], 71 A.D.3d 1200, 1202, 895 N.Y.S.2d 603 [2010] ). While such proof “ ‘typically may not serve as the sole basis for [such] a finding’ ” (Matter of Joanne II. [Thomas II.], 100 A.D.3d 1204, 1205, 955 N.Y.S.2d 228 [2012], quoting Matter of Cadejah AA., 33 A.D.3d 1155, 1157, 823 N.Y.S.2d 278 [2006]; seeFamily Ct. Act § 1046[a][i] ), it can establish derivative abuse when the conduct at issue “ ‘evidence[s] fundamental flaws in the respondent's understanding of the duties of parenthood’ so profound as to place any child in his or her care at substantial risk of harm” (Matter of Joanne II. [Thomas II.], 100 A.D.3d at 1205, 955 N.Y.S.2d 228, quoting Matter of Evelyn B., 30 A.D.3d 913, 915, 819 N.Y.S.2d 573 [2006], lv. denied7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 [2006]; see Matter of Paige WW. [Charles XX.], 71 A.D.3d at 1203, 895 N.Y.S.2d 603; Matter of Cadejah AA., 33 A.D.3d at 1157, 823 N.Y.S.2d 278).

Here, the hearing testimony established that, although the father received counseling services, he refused to acknowledge that Kayden had been abused or that respondents were responsible for such abuse, and he provided incomplete and implausible...