Abused Children Benefit from Powerful Ruling

Matter of Marino S., Jr. (July 2, 2003), arises from a case in which a man raped an 8-year-old child while his 4-year-old daughter was in the same bed, and where the mother covered up the crime and delayed obtaining medical aid for her injured and possibly dying child. Raquel T. and her three children were living in a Manhattan apartment with Marino S., the father of two of the children. In July 1997, Marino raped one of the children in a bed where his own daughter was asleep. The rape victim bled profusely and sustained severe internal injuries. However, in an effort to provide cover for Marino S., Raquel T. waited 2 hours to get help and then took her daughter to a clinic 115 blocks away rather than to one of several hospitals closer to her apartment. The child was rushed from the clinic to Bellevue Hospital, where she was categorized as “likely to die” and underwent life-saving surgery to repair vaginal lacerations. She was hospitalized for 9 days.

Marino and Raquel were arrested in August 1997 and the children were placed in foster care. Ultimately, Marino pleaded guilty to first-degree rape and was sentenced to a 15-year term. Raquel was sentenced to a term of 1 to 3 years for first-degree reckless endangerment. The case came to Albany via a termination-of-parental-rights proceeding initiated by the Angel Guardian Children and Family Services agency in 1997. Under the law in effect at the time, the agency was required to make a diligent effort to reunite the family. However, while the matter was pending, New York adopted the ASFA, becoming the 50th state in the nation to conform to federal statute. The ASFA allows termination of parental rights on the basis of severe abuse, without requiring efforts to reunite the family. Family Court applied the ASFA retroactively, eliminating the burden of attempting to reunite the family.

It also made derivative findings of abuse on the two younger children, even though the ASFA does not specifically recognize such action. The Appellate Division, First Department, affirmed in an opinion upheld on July 2.

Chief Judge Kaye said that since the ASFA is remedial and since it does not implicate vested rights, it may be retroactively applied. While recognizing the strong public policy concern for maintaining biological families, the chief judge said the state's “paramount concern for the health and safety of the child” trumps other concerns. “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,” Chief Judge Kaye wrote. She said the “heinous acts perpetrated by Marino” coupled by the “utter disregard for the child's life exhibited by both respondents” makes abundantly clear where the children's best interests lie.

Conclusion

The court expanded the parameters of state Social Services Law (see '384-b) that clearly contemplates derivative findings, although the ASFA does not. Oddly, however, the state law specifically allows derivative findings only when a parent has been convicted of killing or assaulting the child's sibling and not in this case “because the conduct at issue was a violent rape causing life-threatening injuries, and not a homicide or assault,” Chief Judge Kaye said. The court thus held that an underlying finding that a child was abused may be derivative, even in cases other than those involving homicide or assault.

New York's highest court, the Court of Appeals, threw a lifeline to abused and neglected children with a powerful ruling that streamlines the adoption process and makes it easier to terminate parental rights in the most severe cases. In an opinion by Chief Judge Judith S. Kaye, the court said the Adoption and Safe Families Act (ASFA) applies retroactively, and therefore officials do not have to make a diligent effort to reunite families before permanently removing children. Also, and perhaps most significantly, the court said that Family Court can rely on derivative findings of abuse – where, for instance, a child witnesses the abuse of a sibling but is not himself or herself attacked – even though such proof is not explicitly recognized in the ASFA.

The decision appears to eliminate potential hurdles that could have prevented or delayed the permanent rescue of children from abusive or neglectful parents. It is not clear how the ruling will be applied in matters with less egregious fact patterns.

Matter of Marino S., Jr.

Matter of Marino S., Jr. (July 2, 2003), arises from a case in which a man raped an 8-year-old child while his 4-year-old daughter was in the same bed, and where the mother covered up the crime and delayed obtaining medical aid for her injured and possibly dying child. Raquel T. and her three children were living in a Manhattan apartment with Marino S., the father of two of the children. In July 1997, Marino raped one of the children in a bed where his own daughter was asleep. The rape victim bled profusely and sustained severe internal injuries. However, in an effort to provide cover for Marino S., Raquel T. waited 2 hours to get help and then took her daughter to a clinic 115 blocks away rather than to one of several hospitals closer to her apartment. The child was rushed from the clinic to Bellevue Hospital, where she was categorized as “likely to die” and underwent life-saving surgery to repair vaginal lacerations. She was hospitalized for 9 days.

Marino and Raquel were arrested in August 1997 and the children were placed in foster care. Ultimately, Marino pleaded guilty to first-degree rape and was sentenced to a 15-year term. Raquel was sentenced to a term of 1 to 3 years for first-degree reckless endangerment. The case came to Albany via a termination-of-parental-rights proceeding initiated by the Angel Guardian Children and Family Services agency in 1997. Under the law in effect at the time, the agency was required to make a diligent effort to reunite the family. However, while the matter was pending, New York adopted the ASFA, becoming the 50th state in the nation to conform to federal statute. The ASFA allows termination of parental rights on the basis of severe abuse, without requiring efforts to reunite the family. Family Court applied the ASFA retroactively, eliminating the burden of attempting to reunite the family.

It also made derivative findings of abuse on the two younger children, even though the ASFA does not specifically recognize such action. The Appellate Division, First Department, affirmed in an opinion upheld on July 2.

Chief Judge Kaye said that since the ASFA is remedial and since it does not implicate vested rights, it may be retroactively applied. While recognizing the strong public policy concern for maintaining biological families, the chief judge said the state's “paramount concern for the health and safety of the child” trumps other concerns. “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,” Chief Judge Kaye wrote. She said the “heinous acts perpetrated by Marino” coupled by the “utter disregard for the child's life exhibited by both respondents” makes abundantly clear where the children's best interests lie.

Conclusion

The court expanded the parameters of state Social Services Law (see '384-b) that clearly contemplates derivative findings, although the ASFA does not. Oddly, however, the state law specifically allows derivative findings only when a parent has been convicted of killing or assaulting the child's sibling and not in this case “because the conduct at issue was a violent rape causing life-threatening injuries, and not a homicide or assault,” Chief Judge Kaye said. The court thus held that an underlying finding that a child was abused may be derivative, even in cases other than those involving homicide or assault.