In the Matter of Marino S., Jr. and Others, Infants. Raquel T. and Marino S.,
Appellants, Angel Guardian Children and Family Services, Inc., et al.,
2003 NY Int. 102
This parental rights termination case raises several issues regarding New York's implementation of the Adoption and Safe Families Act. The issues arise in the context of proceedings against respondents Raquel T. and Marino S., parents of Vivian S. (born February 8, 1993) and Marino S., Jr. (born September 25, 1995). Raquel is also the mother of Shaina T. (born April 5, 1989). Raquel and Marino were not legally married, but lived together with the three children.
The following facts are excerpted from the well-
reasoned, comprehensive opinions of the Family Court (181 Misc 2d
On July 31, 1997, Raquel was asleep with her son in the living room of her apartment, when Marino went into the bedroom and raped Shaina, then eight years old, while Vivian, then four, slept in the same bed. Raquel awoke when Shaina emerged from the bedroom holding herself tightly and bleeding from her vagina. Raquel watched as her daughter took a shower, then wrapped the child in two towels and placed her on the bed. Raquel put a sanitary pad on Shaina but the bleeding continued. Instead of seeking immediate medical attention, Raquel acquiesced in Marino's suggestion that they wait. Before long, however, Shaina, complaining of stomach cramps and continuing to bleed through the towels, began to vomit.
After finally deciding to seek medical treatment,
Raquel and Marino began to fabricate the story that the child,
while getting out of bed, had been injured by falling over a
chair and being struck between the legs. As Shaina continued to
bleed profusely, the couple concocted a story to conceal that
Marino had been present in the apartment. Raquel knew of a
previous allegation that he had sodomized the child, resulting in
an investigation by the Administration for Children's Services
("ACS") (181 Misc 2d at 269). She also knew that her own mother
had previously accused Marino of sexually abusing Raquel's young
Raquel next spent a period of time putting away the mattress on which Marino slept, mopping the floor and washing up the blood. Approximately two hours after she first became aware of Shaina's injury, Raquel called for a taxicab and left with her children. Although she had previously taken the children to Metropolitan Hospital, which was closest to the family's home on East 118th Street in Manhattan, and although there were many other hospitals along the route, Raquel directed the cab to take them to a clinic -- 115 blocks away -- on East 3rd Street and Avenue C. Suffering from severe internal injuries and extensive blood loss, the child was rushed from the clinic to Bellevue Hospital, where, listed as "likely to die," she underwent surgery to repair the lacerations to her vaginal wall. Shaina remained hospitalized for nine days.
Informed by the police that Marino had confessed to
raping Shaina, Raquel -- seated in a police car with Marino to be
A central issue before us is whether diligent efforts to reunite respondents with the children, concededly not undertaken by the foster care agency, were required. As the applicable statutory law changed midstream -- after the filing of abuse and termination proceedings, but before their conclusion -- we now recount the provisions and their relevant amendments, in relation to the proceedings below.
Initiation of Family Court Proceedings. Proceedings
were filed in Family Court both for abuse and for termination of
parental rights. Child abuse proceedings were instituted against
the respondents on August 1, 1997, resulting, on May 11, 1998, in
findings of abuse as to Shaina and derivative findings as to the
other two children. Subsequently, on October 22, 1998, Family
Court entered orders of disposition placing the children in the
Abuse proceedings have long been governed by Family Court Act article 10. As a rule, when a child has been removed from the home based on alleged abuse or neglect -- as these three children were -- the social services official responsible for the child must attempt to reunite the child with the birth parent; this includes efforts at rehabilitation so as to render the parent capable of caring for the child ( see Family Court Act § 1052[b][i][A]; § 1055[c]). Such efforts typically include facilitation of parent-child visits and provision of services to the parent, including assistance with housing, employment, counseling, medical care and psychiatric treatment ( see Family Court Act § 1055[c]).
Similarly, in termination of parental rights proceedings (governed by Social Services Law § 384-b) a foster care agency generally must demonstrate that diligent efforts at reunification have been undertaken. Such efforts are not required, however, where they would be detrimental to the best interests of the child ( see Social Services Law § 384-b [a][iv]). These provisions implement New York's strong public policy of both keeping families together and protecting the health and safety of children ( see Social Services Law § 384-b ).
The New Statute. In February 1999, during the pendency
of the abuse and termination proceedings, New York passed the
Adoption and Safe Families Act (ASFA) (L 1999, ch 7). The
Legislature thereby brought New York into conformity with a 1997
federal law of the same name, maintaining the state's eligibility
for federal funding for foster care services.
New York's ASFA
overlays numerous provisions of the Social Services Law, Family
Court Act and Domestic Relations Law, adding to the tangle of
cross-referenced provisions. In addition to particular
Soon after New York's passage of ASFA, the petitions to terminate respondents' parental rights were amended to add causes of action for severe abuse pursuant to newly amended Social Services Law §§ 384-b (4)(e) and (8), including a cause of action for severe abuse based on the commission, or knowing allowance of the commission, of a felony sex offense ( see Social Services Law § 384-b[a][ii]). Simultaneously, a motion was brought in the underlying abuse proceeding for a finding of aggravated circumstances, another term introduced by ASFA ( see Family Court Act § 1012[j]). The effect of a finding of aggravated circumstances under the Family Court Act -- like the effect of a finding of severe abuse under the Social Services Law (severe abuse itself constitutes an aggravated circumstance) -- is to dispense with the requirement that an agency responsible for having placed the children in foster care or seeking to terminate parental rights exercise diligent or reasonable efforts to reunite the respondent with the children ( see Family Court Act § ).
At a Family Court hearing respondents were given a full
opportunity to present evidence in support of their contention
that diligent efforts to reunite them with their children should
Respondents challenge the retroactive application of ASFA to their pending proceedings insofar as their termination petitions were amended to include a cause of action for severe abuse based on a felony sex offense. Family Court, affirmed by the Appellate Division, correctly determined that ASFA should be applied retroactively.
Generally, nonprocedural statutes "are not to be
applied retroactively absent a plainly manifested legislative
intent to that effect" ( People v Behlog, , 74 NY2d 237, 240 1989],
quoting People v Oliver, , 1 NY2d 152, 157 ). When a statute
Most importantly, "the reach of the statute ultimately
becomes a matter of judgment made upon review of the legislative
goal" ( Matter of OnBank & Trust Co., , 90 NY2d 725, 730 1997],
quoting Matter of Duell, 84 NY2d at 783). ASFA makes explicit
that in exercising reasonable efforts to reunite children with
their birth families, the health and safety of children is of
paramount importance ( see Social Services Law § 384-b[a]).
This language, derived from the federal statute, is fully
consistent with the existing law in New York that the health and
safety of the child were always the paramount concern in
providing reasonable efforts to prevent placement and promote
reunification. It does not represent a change in law, policy or
emphasis in New York (Mem of Assembly in Support, 1999
McKinney's Session Laws of NY, at 1487). Rather, as the
Appellate Division explained, ASFA serves simply to expedite
Because the statute is remedial in nature and does not impair vested rights, it should be applied retroactively. As Family Court recognized, ASFA is merely an attempt to refine the law concerning permanency planning for children in foster care so that New York law more fully and expeditiously accomplishes its preexisting goals (181 Misc 2d at 273).
Nor does ASFA or its retroactive application violate respondents' constitutional due process rights. The law provides for a procedure by which the parent is entitled to offer evidence to contravene the agency's request to be excused from reasonable efforts at family reunification (Family Court Act § 1039-b; Social Services Law § 384-b[a][iv]). Here, Marino offered no evidence whatsoever, and Raquel's evidence was determined by Family Court to be insufficient.
The retroactivity of ASFA is significant in this case as it affects the agency's obligation to exercise diligent efforts to reunite respondents with the children.
It has long been the public policy of this State to keep biological families together and to require foster care agencies to exercise diligent efforts to reunite abused and neglected children with their birth parents, once rehabilitated ( see Social Services Law § 384-b[a][ii], [iii]). That critical goal remains, and careful attention must be paid to ensure it is achieved where possible. But when a child's best interests are endangered, such objectives must yield to the State's paramount concern for the health and safety of the child. In such extreme cases, the State's strong interest in avoiding extended foster care limbo and expediting permanency planning may properly excuse the futile exercise of making efforts toward reuniting a family that, in the end, should not and will not be reunited.
Despite respondents' claim to the contrary, the
admissible evidence adduced before the Family Court clearly and
convincingly established that diligent efforts to reunite this
family were not required ( see Social Services Law § 384-b
[g]). In light of the heinous acts perpetrated by Marino on
Shaina, and the utter disregard for the child's life exhibited by
both respondents, the contention that the Family Court erred is
devoid of merit. The affirmed findings that Shaina's health and
safety have been -- and would continue to be -- jeopardized by
respondents' abuse are amply supported by the record, including
Nor do Family Court's findings rest on inadmissible hearsay, as respondents contend. Rather, the non-hearsay evidence before the trial court was more than sufficient to meet the agency's burden. Although some hearsay evidence was admitted, it was offered not for its truth but rather to explain the agency's decision not to undertake reunification efforts, and was elicited only after respondent-father called into question the basis of the agency's determination.
Respondents further urge that, even if it has retroactive effect, ASFA may not be applied retrospectively, an argument that spotlights the three highlighted words of the following amended Family Court Act section:
§ 1039-b Termination of reasonable efforts
(a) In conjunction with, or at any time subsequent to, the filing of a petition under section ten hundred thirty-one of this chapter [proceeding to determine abuse or neglect], the social services official may file a motion upon notice requesting a finding that reasonable efforts to return the child to his or her home are no longer required (emphasis added).
According to respondents, the Family Court -- in entertaining a motion pursuant to Family Court Act § 1039-b -- was empowered only to determine the need for future efforts, and could not excuse the agency's failure to exercise diligent efforts until the moment of the 1039-b finding. We disagree.
Such a construction of the statute would be at odds
with the remedial nature of ASFA. Even before the enactment of
ASFA, a court could, in the context of a finding of severe abuse,
excuse an agency from showing that it had exercised diligent
efforts when such efforts would be detrimental to the best
interests of the child. Indeed, in this case Family Court, in
addition to finding -- pursuant to Family Court Act § 1039-b --
that diligent efforts were not required, also made a finding --
pursuant to the pre-ASFA portion of Social Services Law § 384-b
(8)(a)(iv) -- that such efforts would have been detrimental to
the best interests of the children. As the Appellate Division
noted, it would be an absurd result to require reasonable
efforts until a judicial determination is made when the * * *
[statute] itself recognizes that there are situations where
reasonable efforts may actually be harmful to the child (293
2 at 229).
Derivative Findings of Severe Abuse
Respondents additionally challenge Family Court's authority to make derivative findings of severe abuse as to the two children who were not victims of the rape. Article 10 of the Family Court Act, which pertains to child protective proceedings, is silent with respect to derivative findings of abuse. Respondents concede, however, that indirect support for derivative findings in article 10 proceedings may be found in the evidentiary rule set forth in Family Court Act § 1046 (a)(i), which provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent.
Over the years, courts have consistently sustained
derivative findings where a respondent's abuse of the subject
child is so closely connected with the care of another child as
to indicate that the second child is equally at risk ( see e.g.
Matter of Dutchess County Dept. Social Servs. v Douglas E., 191
AD2d 694 (2d Dept 1993); Matter of James P., 137 AD2d 461 [1st
Dept 1988]). As Family Court articulated the standard, with
which we agree, derivative findings of 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 (181
Misc 2d at 276 [citation omitted]). It is additionally clear
Respondents insist that there is no statutory authority
for derivative findings because, while siblings are mentioned in
some of the Social Services Law subdivisions, they are not
explicitly mentioned in the particular statutory subdivisions at
issue here. Social Services Law § 384-b (8)(a)(iii), for
example, specifically defines a severely abused child as
including a child whose parent has been convicted of the homicide
of the child's sibling, or the attempted homicide of the child or
the child's sibling, or the assault or attempted assault of the
child or the child's sibling. This subdivision plainly
contemplates derivative findings as to a sibling. Anomalous
though it may seem, however, this subdivision was not triggered
in the present case because the conduct at issue was violent rape
causing life-threatening injuries, and not homicide or assault.
Social Services Law § 384-b(8)(a)(i) -- which is at issue here,
and does not explicitly mention the subject child's sibling --
defines a severely abused child as a child who has been found to
We conclude that an underlying finding that a child was abused may itself be derivative, even in cases other than those involving homicide or assault. Social Services Law § 384-b (8)(a)(ii), also at issue here, defines a severely abused child to include a child who has been found to be abused (under Family Court Act § 1012[e][iii]) as a result of the parent's actions, provided that the respondent must have committed (or knowingly allowed to be committed) a felony sex offense. The statute does not specify the person against whom the felony sex offense must have been committed. It does not explicitly state that the sex offense may have been committed against a sibling. But neither does it state that the sex offense must have been committed against the abused child herself.
In making its derivative findings, Family Court
properly construed the Social Services Law to permit a finding of
severe abuse based on an abuse finding coupled with a felony sex
offense against a sibling. We refuse to read the absence of
specific references to siblings in subdivisions (i) and (ii) --
as respondents would have us do -- to limit derivative findings
strictly to homicide and assault situations. Both subdivisions
(i) and (ii) require a prior finding that a child was abused,
Finally, Family Court properly recognized that without derivative findings, a child who was severely abused (such that the foster care agency would thereby be relieved of its obligation to undertake diligent efforts at reunification) would be on a different permanency planning track from his or her sibling. New York child welfare law and policy favor keeping siblings together ( see McKinney's 1989 Session Laws, ch 728, § 1; Social Services Law § 384-a[1-a]).
Accordingly, the order of the Appellate Division should be affirmed, without costs.
1 Family Court detailed acts of abuse by both respondents perpetrated over the course of at least four years. For example, during Raquel's interview by the police after Shaina's admission to the hospital, Raquel told of separate prior incidents in which, she claimed, a young cousin and Shaina herself had each been climbing on a cabinet in Raquel's home, fallen, been struck between the legs and suffered vaginal bleeding. On a previous occasion, when informed by Shaina's godmother that Shaina had reported being sexually abused by Marino, Raquel slapped Shaina on the mouth and said, Don't lie.
2 This case does not present the vexing issue of termination of parental rights of a domestic violence victim who is helpless to protect a child ( see e.g. Sean D. Ronan, No Discretion, Heightened Tension: The Tale of the Adoption and Safe Families Act in New York State, 48 Buff L Rev 949 ). While Raquel interposed a defense in the termination proceeding that she was a victim of Marino's abuse and powerless to protect Shaina, that claim was rejected by Family Court (181 Misc 2d at 274) and is not pressed in this Court.
3 New York was the last of the 50 states to conform its law to the federal statute. ASFA has stimulated wide commentary ( see generally Terry Lyons, When Reasonable Efforts Hurt Victims of Abuse: Five Years of the Adoption and Safe Families Act of 1997, 26 Seton Hall Legis J 391 ; Anne Crick and Gerald Lebovits, Best Interests of the Child Remain Paramount in Proceedings to Terminate Parental Rights, 73 NY St B J 41 [May 2001]; Robert M. Gordon, Drifting Through Byzantium: The Promise and Failure of the Adoption and Safe Families Act of 1997, 83 Minn L Rev 637 ).
4 For approximately the past five years, the three children have lived together in the same pre-adoptive foster home.
5 We reject respondents' further claim that Family Court's article 10 finding of aggravated circumstances after the commencement of the termination proceeding was untimely. Pursuant to the plain language of Family Court Act § 1039-b[a], a motion seeking a determination that reasonable efforts are no longer required based on a finding of aggravated circumstances may be made [i]n conjunction with, or at any time subsequent to, the filing of an Article 10 proceeding. In any event, as the Family Court correctly recognized, the motion pursuant to section 1039- b, while permissible, was superfluous here. Since the termination proceeding had already commenced, a finding of severe abuse under Social Services Law § 384-b would itself have necessitated an inquiry into the appropriateness of diligent efforts and the extent to which they would be detrimental to the best interests of the children.