| Matter of Paige WW. (Charles XX.) |
| 2010 NY Slip Op 01715 [71 AD3d 1200] |
| March 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paige WW., a Child Alleged to be Neglected.Columbia County Department of Social Services, Respondent; Charles XX.,Appellant, et al.,Respondent. (And Another Related Proceeding.) |
—[*1] Katrina L. Dryer, Columbia County Department of Social Services, Hudson (James A.Carlucci of counsel), for Columbia County Department of Social Services, respondent. Margaret E. Donnelly, Law Guardian, East Greenbush.
Garry, J. Appeals (1) from an order of the Family Court of Columbia County (Czajka, J.),entered January 16, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondents' child to be neglected and issued an order ofprotection, and (2) from an order of said court, entered March 6, 2009, which granted petitioner's[*2]application, in a proceeding pursuant to Family Ct Act article10-A, to continue the placement of the subject child.
Respondent Charles XX. (hereinafter the father) had five children with his former wife. Thewife also had older children from a previous relationship who did not live in her household,including respondent Tina WW. (hereinafter the mother).[FN1]In 2002, the children of the father and the wife were removed as a result of child protectiveproceedings commenced in Dutchess County.[FN2]In 2005, the Dutchess County Family Court (hereinafter the 2005 court) determined that whilethe children had been in the care of the father and wife, three of them had been sexually abusedand neglected, and the other two had been derivatively neglected. The father subsequentlysurrendered his parental rights to all but one of these children, and none of them lived with himagain. In 2006, the wife died and, shortly thereafter, the father and the mother began livingtogether. Paige WW. (hereinafter the child) was born to them in October 2007.
In April 2008, petitioner commenced the current neglect proceedings, alleging, among otherthings, that the father had a history of sexual abuse and had not engaged in court-orderedtreatment. Family Court accepted admissions of neglect from the mother and conducted afact-finding hearing with respect to the father. Thereafter, the court entered an order adjudicatingthe child as neglected by both parents, and issued an order of protection with respect to thefather. The father now appeals from the dispositional order as well as from a subsequentpermanency hearing order.
The father contends that the evidence was insufficient to support the derivative neglectdetermination. He was the only witness during the fact-finding hearing, and his testimonyfocused on the events leading to the decision and order of the 2005 court (hereinafter the 2005decision). He denied that he had sexually abused his other children. Family Court rejected thistestimony and determined, based upon the 2005 decision, that he did sexually abuse his otherchildren. The court further found that by denying this abuse and by failing to participate intreatment ordered by the 2005 court, the father had derivatively neglected the child in thisproceeding. The father contends on appeal that the determination was based on a mistakenreading of the 2005 decision, that he did not sexually abuse his other children, and, further, thatthe evidence of his current circumstances was insufficient to demonstrate any risk of harm to thechild.
Proof of a parent's abuse or neglect of a child "shall be admissible evidence" as to the [*3]parent's neglect of another child (Family Ct Act § 1046 [a][i]; see Matter of John QQ., 19AD3d 754, 756 [2005]). Here, we find that the derivative neglect determination is supportedby evidence that " 'demonstrates such an impaired level of parental judgment as to create asubstantial risk of harm for any child in [the father's] care' " (Matter of Tiffany AA., 268AD2d 818, 819-820 [2000], quoting Matter of Vincent M., 193 AD2d 398, 404 [1993]).The 2005 decision sustained allegations of both sexual abuse and neglect as against both parents,and Family Court relied upon that determination.[FN3]We note that while there were allegations regarding the father's conduct, the 2005 decisionneither clearly identified nor clearly excluded the father as a perpetrator of sexual abuse. Itsdiscussion of the father's conduct was limited to his abuse of alcohol, his failure to supervise thechildren at times when several known sex offenders who frequently associated with the familyhad access to them, and the adequacy of his response when the children displayed sexualizedbehavior. However, the 2005 court was unambiguous and explicit in its determination that thethree older children were subjected to multiple acts of sexual abuse and that, as a result, theysuffered significant physical and emotional harm. The 2005 court further found, at minimum,that the father acquiesced in the sexual abuse of his children by permitting known pedophiles toassociate with them and by failing to supervise them; the father and wife were found to havebeen present in other parts of the house, drinking alcohol, when some of the molestations tookplace. Notably, the Family Ct Act defines an "abused child," with reference to sexual abuse, asany child under 18 whose parent "commits, or allows to be committed an offense againstsuch child defined in article one hundred thirty of the penal law" (Family Ct Act § 1012[e] [iii] [emphasis added]). Thus, even in the absence of an unambiguous determination that thefather was himself a perpetrator, " 'the nature of [his] direct abuse [or neglect], notably itsduration, [and] the circumstances surrounding its commission . . . can be said toevidence fundamental flaws in [his] understanding of the duties of parenthood' " sufficient toserve as a basis for Family Court's finding of derivative neglect (Matter of Cadejah AA., 33 AD3d1155, 1157 [2006], quoting Matter of Amanda LL., 195 AD2d 708, 709 [1993]; see Matter of Stephiana UU., 66 AD3d1160, 1162 [2009]; Matter ofEvelyn B., 30 AD3d 913, 916 [2006], lv denied 7 NY3d 713 [2006]).
We further find that the prior determination of abuse and neglect was "sufficiently proximatein time 'such that it can be reasonably concluded that the conditions still exist' " (Matter of Suzanne RR., 35 AD3d1012, 1013 [2006], quoting Matterof Hunter YY., 18 AD3d 899, 900 [2005]). Although the acts of abuse and neglect thatled to the 2005 decision took place six years or more before the current proceedings were filed,there is no "bright-line, temporal rule beyond which we will not consider older child protectivedeterminations" (Matter of Evelyn B., 30 AD3d [*4]at915; but see Matter of Natasha RR.,27 AD3d 788, 789 [2006]). While the evidence as to whether the conditions that attendedthe 2005 decision still prevailed in 2008 is sparse, the record does reveal that the father did notcomply when he was ordered in 2005 to participate in sex offender programming. Not until theseproceedings were filed in 2008 did he obtain the required evaluation and, at the time of thefact-finding hearing, he had just begun to participate in programming (cf. Matter of Jemila PP., 12 AD3d964, 966 [2004]). As to the substance abuse that contributed to his prior acts of abuse andneglect, he testified that he was successfully participating in substance abuse training and hadabstained since 2007 from the use of illegal drugs; however, he also testified that thisparticipation was an involuntary condition of his parole for an unidentified offense. Moreover,the father's failure to accept responsibility for the severe harm suffered by his other childrenwent well beyond his denial that he had sexually abused them (see Matter of StephianaUU., 66 AD3d at 1162). When asked whether the other children had been sexually abused,he acknowledged only that "[i]t could have happened" while he was at work; additionally, hecontradicted his 2005 testimony by claiming that he did not know that his former associates, whowere his relatives and friends, were sex offenders when he allowed them to have contact with hisother children. Thus, "inasmuch as the paramount purpose of Family Ct Act article 10 is theprotection of the physical, mental, and emotional well-being of children" (Matter of EvelynB., 30 AD3d at 917 [internal quotation marks and citations omitted]), and given thevulnerability of the six-month-old child (see id.), we conclude that Family Court'sdetermination of derivative neglect is supported by the requisite preponderance of the evidence(see Matter of John QQ., 19 AD3d at 756).
However, the order of protection barring the father from all contact with the child until shereaches the age of 18 is not justified by the record. Family Court entered the order over thefather's objection and upon the request of the Law Guardian, who argued that the father was notentitled to the rights of a biological parent because he was not married to the mother and had notbeen adjudicated to be the child's father. However, the petition identified him as the child'sfather, and both the father and the mother testified without contradiction that he was the father.While an in-court admission of paternity is not conclusive as a matter of law, it does constituteevidence of paternity, and that evidence was uncontradicted (see Matter of Howard vRobinson, 32 AD2d 837 [1969]; 2-19 New York Civil Practice: Family Court Proceedings§ 19.13). Further, the record reveals that before the child's removal, the fatheracknowledged paternity by living with her and supporting her (see Family Ct Act§ 517). Under these circumstances, the court should not have imposed the "drasticremedy" (Matter of Melinda A. v Greene County Dept. of Social Servs., 278 AD2d 754,755 [2000]) of denying all visitation without considering the child's best interest, which is theparamount consideration in any visitation determination (see Matter of Neeley v Ferris, 63 AD3d 1258, 1260 [2009];Matter of Rogowski v Rogowski, 251 AD2d 827, 827 [1998]). No such analysis tookplace, and the record does not provide "compelling reasons and substantial evidence that. . . visitation is detrimental to the [child's] welfare" (Matter of KathleenOO., 232 AD2d 784, 786 [1996], quoting Matter of Farrugia Children, 106 AD2d293, 293 [1984]). Accordingly, the matter must be remitted for a hearing in which the court shallreconsider the appropriate restrictions, if any, to be placed on the father's visitation in light ofthis decision. The order of protection shall remain temporarily in effect until [*5]the parties first appear for this purpose, at which time Family Courtshall make an appropriate temporary order (see Matter of Shannon ZZ., 8 AD3d 699, 701-702 [2004]).
Finally, the father objects to the permanency hearing order on the ground that Family Courtshould have adjourned the permanency hearing to enable him to be present. However, thefather's counsel was present and, without requesting an adjournment, indicated that the fatherobjected to the permanency plan. In the absence of a request for an adjournment, and given thestrict statutory timetable within which permanency hearings must be completed (seeFamily Ct Act § 1089 [a] [2]), we find no error (contrast Matter of Anthony QQ., 48 AD3d 1014, 1015 [2008],lv denied 10 NY3d 714 [2008]).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order enteredJanuary 16, 2009 is modified, on the law, without costs, by remitting the matter to the FamilyCourt of Columbia County for further proceedings not inconsistent with this Court's decisionand, pending such proceedings, the order of protection shall remain in effect as a temporaryorder, and, as so modified, affirmed. Ordered that the order entered March 6, 2009 is affirmed,without costs.
Footnote 1: The mother was apparentlyplaced in foster care at age five and was later adopted by her foster parents.
Footnote 2: The fifth child was removedshortly after her birth in 2003.
Footnote 3: The underlying 2005 petitionsare not in the record and apparently were not before Family Court in 2008 when it heard thesematters. It appears from the summary set forth in the 2005 decision that there was a claim madethat the father himself engaged in direct sexual abuse of one of the children, but the specificallegations are not clear.