Mom's boyfriend harms child

An accused mother left her son with her boyfriend when she went to work that night. She said that she had known the man about four months and he had been her boyfriend for two weeks. She had brought both her son and her daughter to his home on a prior occasion and stayed for a week. On June 7, 2009, she left her daughter with her mother, the Maternal Grandmother. The accused mother stated she worked a security job from 8:00 PM to 8:00 AM. She said she telephoned her boyfriend four times during the night of June 7-8, 2009. She said she returned to her boyfriend's home on Monday, June 8, 2009 at about 8:30 AM. Her baby was sleeping in the bed next to her boyfriend. The baby woke up at about 9:00 AM and she changed and fed him. Then she and the baby went to sleep. The baby awoke at about 1:00 PM and was fussy and crying. She said she asked the baby to stop crying and be quiet, but he would not stop. She said he would not take his bottle. She said she then picked him up, and she demonstrated how she did that. She said she held the infant under his armpits facing her and shook him four times. Her fingers were on his back and her thumbs on his chest. She said the baby had a little smirk on his face. She also said that the baby's head was going back and forth. She then put the baby on her shoulder and continued to shake him. She said he fell asleep and she put the baby on the bed and went back to sleep. She said everything was normal after she shook the baby, and he was breathing and alive. She said that her boyfriend was not in the room when this incident occurred. She awoke at about 3:25 PM. Her boyfriend’s sister came into the room and they left the home together, leaving the baby in the room on the bed. She said she cashed her paycheck and stopped at a few other places. She then returned to home, and his mother told her about the baby. She said she received a telephone call from her boyfriend stating he was sorry, but her baby was dead. She said she went to the hospital. The mother waived her rights under Miranda and acknowledged she had signed a statement and waived her rights. She was shown a statement that she had signed. She read her statement and acknowledged it. She said she did not mean to shake her baby like that, to cause him to pass away. She said she strike the baby and gave him a shot to his head. She punched him on the top of his head three times, on his back four times and on his side one time. She punched him with a closed fist and with a lot of force, and that she covered the baby's mouth and nose very hard and said she saw tears in the baby's eyes. She said that she did not know what happened. She was depressed and stressed, and didn't mean to take it out on her son" She said she had been angry for two or three days and did not know why. She said the baby was still breathing when she stopped hitting him, and she placed him on the bed. She then left the room. She said no one was in the room when she was striking the child. The accused mother was given a doll to demonstrate how she held the baby under his arms facing her with her fingers on his back. She shook the doll hard and the doll's head jerked back and forth. She also demonstrated how she hit the baby. She put the doll sitting on her lap facing her and showed how she punched the baby in the head. She then turned the doll and placed him facing to the side and punched the doll in the back and side. She held its face with her hand over its mouth and under its nose. She said the baby cried and his body jerked. She was provided with a statement of what she had said. She said she understood her rights and had made the statement voluntarily. The County Medical Examiner performed an autopsy of the seven-month-old child. The report found the cause of death to be whiplash, shaking and blunt impacts of head with subarachnoid and subdural hemorrhage and the manner of death as homicide. The examiner found whiplash shaking and blunt impact injuries to the head and torso. A thin layer of subdural hemorrhage is over the brain. The brain, spinal cord and eyes are fixed in formalin. The Medical Examiner's report noted a hemorrhage covering the infant's optic nerves. The consulting neuro-pathologist to the Medical Examiner examined the brain and spinal cords of the deceased infant, and made the diagnosis of traumatic brain Injury. A detective of the Bronx Homicide Division was called as a witness by the Administration for Children’s Services (ACS). He testified that he met the mother at the 47th precinct in June 2009. He said that he interviewed her on June 9, 2009 at 1:00 AM and 2:15 PM and that he was present for and observed the interviews in which the mother gave statements to two Bronx County Assistant District Attorneys (ADAs). The interviews conducted by the ADAs were videotaped. A detective stated that he was present when the accused mother gave statements to each of two ADAs on June 9, 2009. Initially, he stated he could not recall some of the specific details of the videotaped interviews that had occurred one year prior to his testimony. However, he reviewed the tapes and refreshed his recollection. He testified as to the contents and circumstances of the interviews. He also testified that during the videotaped questioning, the mother said that she had worked long hours during the night of June 7-8, 2009 and had become frustrated with the baby's crying. She said she had punched the baby in the head and covered his mouth so he would not cry. She also described shaking the baby. The accused mother was provided with a doll to demonstrate what she had done. The videotape recording was played in court and entered into evidence. In its Summation, the Administration for Children’s Services (ACS) stated that it has presented clear and convincing evidence that the accused mother acted with a depraved indifference to human life in causing serious physical injuries to the seven-month-old infant that resulted in his death. ACS stated that it had proven aggravated circumstances and that the infant was a severely abused child as defined in Family Court and Social Services Law, and that the accused mother failed to rebut any of the evidence presented by ACS. ACS urged the court to make a derivative finding of severe abuse as defined in Social Services Law as to the subject child. Further, based on the clear and convincing evidence of the heinous nature of the accused mother's abuse of the infant, ACS stated that the court should terminate its duty to provide reasonable efforts to assist the accused mother in reunification with the surviving child. The Attorney for the Child, in a Summation stated that Family Court Act provides authority for entering a derivative finding of severe abuse as to the non-target surviving child based solely on the actions of the accused mother against the target child. The fact that the accused mother did not directly abuse the child does not deprive the court of making a finding of severe abuse as to the child. The Attorney for the Child argued that the complainant had established by clear and convincing evidence aggravated circumstances based on a brutal assault by the accused mother upon the infant resulting in his death, warranting a finding of severe abuse. The accused mother’s egregious conduct was evidence of a fundamental flaw in her parental judgment and ability and any child in her care would be at substantial risk of danger. In addition, the Attorney for the Child asked the court to draw the strongest negative inference against the accused mother due to her failure to testify in this matter. The accused mother, in her Summation stated that the complainant failed to allege derivative abuse of the child and it would be procedurally improper for the court to enter such a finding in the absence of such an allegation, and the petition should be dismissed. Further, the complainant failed to offer testimony from a medical doctor or expert regarding the cause of infant's fatal injuries. The accused mother stated that ACS has failed to prove that the infant was in the exclusive care of the accused mother at the time of his injuries or that the fatal injuries were the result of the accused mother's intentional conduct, and, thus, has failed to establish by clear and convincing evidence the key elements of severe abuse as defined by Social Services Law. The criminal court finds that continued reunification efforts are unlikely to be successful in the foreseeable future and that such efforts will be detrimental to the best interests of the child. Based on the clear and convincing evidence of the heinous nature of the infant’s death caused by the accused mother, which supports a finding of aggravated circumstances of severe abuse of the infant, and a derivative finding of the severe abuse of the subject child, the Court terminates the requirement that the agency make further diligent efforts toward reunification of the child and the accused mother. The court relieves ACS and the foster care agency of the duty to continue such efforts holding that 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 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 efforts or reasonable efforts to reunite the respondent with the children. Accordingly, for all the reasons stated herein, the court finds that the complainant has met its evidentiary burden of proving by clear and convincing evidence that the accused mother subjected the infant to the aggravated circumstance of severe abuse pursuant to Family Court Act, and, as such, the infant was a severely abused child as defined in Social Services Law and, by clear and convincing evidence, finds that ACS has demonstrated that his surviving sibling, subject child is, derivatively, a severely abused child. The court grants the complainant’s ACS's motion and orders that reasonable efforts to reunify the child with the mother are no longer required.