| Matter of Jovon J. |
| 2008 NY Slip Op 04172 [51 AD3d 1395] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Jovon J. and Others, Infants. Monroe CountyDepartment of Human and Health Services, Respondent; Therman M., Appellant, et al.,Respondent. |
—[*1] Daniel M. De Laus, Jr., County Attorney, Rochester (Paul N. Humphrey of counsel), forpetitioner-respondent. Robert A. Di Nieri, Law Guardian, Clyde, for Joshua P. and Monique P. Anthony Leavy, Law Guardian, Rochester, for Therman G.
Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.),entered October 24, 2006 in a proceeding pursuant to Family Court Act article 10. The order,insofar as appealed from, upon petitioner's motion for summary judgment, adjudged thatrespondent Therman M. had neglected his son Therman G.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Family Court properly determined that the sexual abuse by respondent fatherof his stepdaughter, of which he was convicted in 2006, established his derivative neglect of hisbiological son pursuant to Family Court Act § 1046 (a) (i). A finding of derivative neglectmay be made where the evidence with respect to the child found to be abused or neglected"demonstrates such an impaired level of parental judgment as to create a substantial risk of harmfor any child in [his] care" (Matter of Daniella HH., 236 AD2d 715, 716 [1997]). Here,we conclude that petitioner established that the father had an " 'impaired level of parentaljudgment' " so as to create a substantial risk of harm to any child residing in his care (Matterof Mary S., 279 AD2d 896, 898 [2001]; see also Matter of Ahmad H., 46 AD3d 1357 [2007]), particularlyin view of the evidence submitted by petitioner that the son participated in sexual acts at thedirection of his father. Also contrary to the father's contention, the court properly granted thatpart of petitioner's motion for summary judgment on the petition with respect to the son,inasmuch as the criminal conviction of sexual abuse with respect to the stepdaughter providedconclusive proof to warrant the finding of derivative neglect with respect to the son as a matter oflaw (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178[1994]; Matter of Desiree C., 7AD3d 522, 524 [2004]). Present—Hurlbutt, J.P., Martoche, Peradotto, Pine andGorski, JJ.