| Matter of Michael VV. (Arthur VV.) |
| 2009 NY Slip Op 08919 [68 AD3d 1210] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael VV., a Child Alleged to be Neglected.Ulster County Department of Social Services, Respondent; Arthur VV.,Appellant. |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Wendy Bouros, Law Guardian, Stone Ridge.
Cardona, P.J. Appeals from two orders of the Family Court of Ulster County (McGinty, J.),entered December 19, 2008 and January 26, 2009, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicaterespondent's grandchild to be neglected.
Petitioner commenced this neglect proceeding against respondent (hereinafter thegrandfather),[FN*] who is the maternal grandfather and guardian of Michael VV. (born in 2007), alleging, amongother things, that continued placement of the child with the grandfather exposed the child toimminent risk of harm given the grandfather's significant history of neglecting his [*2]own children and his association with a convicted sex offenderwhom he allowed to stay at his home despite repeated efforts by petitioner to have thegrandfather exclude him. Following fact-finding and dispositional hearings, Family Courtadjudicated the child neglected and removed the child from the grandfather's care, temporarilyplacing him in the custody of his paternal grandparents. This appeal ensued.
To establish neglect, petitioner was required to prove by a preponderance of the evidencethat the child's "physical, mental or emotional condition has been impaired or is in imminentdanger of becoming impaired as a result of the failure of [the grandfather] . . . toexercise a minimum degree of care . . . in providing the child with propersupervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or asubstantial risk thereof" (Family Ct Act § 1012 [f] [i] [B]). "The parental [or custodial]behavior asserted as a basis for neglect is measured against the behavior of a reasonable andprudent parent faced with the same circumstances" (Matter of Alaina E., 33 AD3d 1084, 1086 [2006] [citationomitted]; see Nicholson vScoppetta, 3 NY3d 357, 370 [2004]). On this basis, "exposure of a child to a known sexoffender can constitute neglect" (Matterof Christian F., 42 AD3d 716, 717 [2007]).
We are unpersuaded by the grandfather's contention that there was insufficient evidence toestablish that the child was at imminent risk of harm. The only witnesses who testified at thehearing consisted of three caseworkers who visited the grandfather's home and established thatthe grandfather permitted a convicted sex offender to sleep in a tent in the backyard and bepresent at his home. Despite repeated warnings by petitioner's caseworkers regarding the dangerof exposing the child to a sex offender, the grandfather indicated to them, among other things,that he was reluctant to exclude him from his property because the man was considered asfamily. This evidence, together with the extremely young age of the child, the grandfather's priorhistory of neglecting his own children, and the negative inference that Family Court drew fromthe grandfather's lack of testimony (seeMatter of Kayla F., 39 AD3d 983, 985 [2007]), provided a sound and substantial basisfor the determination that the grandfather disregarded the imminent danger created by exposingthe child to a sex offender and failed to take appropriate steps to exercise a minimum degree ofcare to protect the child (see Matter ofMary MM., 38 AD3d 956, 957 [2007]; Matter of Paul U., 12 AD3d 969, 971 [2004]).
To the extent that the grandfather asserts that Family Court impinged on his right to freedomof association by issuing and subsequently extending a temporary restraining order whichprohibited the convicted sex offender from visiting his home, we note that the grandfather is notaggrieved inasmuch as the record establishes that he specifically consented to this condition(see e.g. Matter of Michael U., 226 AD2d 779, 782 [1996], lv denied 88 NY2d805 [1996]).
Peters, Lahtinen, Kane and Stein, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *: Although the maternalgrandmother also was the legal custodian of the subject child, the proceeding herein and theresulting Family Court orders relate solely to the grandfather.