| Matter of Stephiana UU. |
| 2009 NY Slip Op 07538 [66 AD3d 1160] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Stephiana UU. and Others, Children Alleged to beNeglected. Columbia County Department of Social Services, Respondent; Rita WW. et al.,Appellants. |
—[*1] Ira Halfond, Craryville, for Gilbert UU., appellant. James A. Carlucci, Columbia County Department of Social Services, Hudson, respondent. Mary Cosgrove Militano, Law Guardian, Scotia. Cynthia Feathers, Law Guardian, Saratoga Springs.
McCarthy, J. Appeals (1) from an order of the Family Court of Columbia County (Czajka,J.), entered September 15, 2008, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 10, to adjudicate the subject children to be neglected, and (2) from anorder of said court, entered September 25, 2008, which granted petitioner's motion for adetermination that reasonable efforts to reunite respondents with the children are no longerrequired.
In 2004, Dutchess County Family Court (Sammarco, J.) issued a finding of permanentneglect with respect to respondents' five youngest children. That court dismissed certain sexualabuse allegations. However, respondents were ordered to attend sexual nonoffender training andrespondent Gilbert UU. (hereinafter the father) was required to participate in anger management[*2]counseling. Although the children were removed fromrespondents' home for several years as a result of the Dutchess County proceedings, the fouryoungest children were eventually returned to respondents.[FN1]
In February 2008, petitioner filed a new neglect petition with respect to the four minorchildren alleging excessive corporal punishment, sexual abuse and other acts of neglect. After ahearing, Family Court found that respondents had committed acts of neglect with respect to allfour children. Upon respondents' refusal to engage necessary services, the court also grantedpetitioner's motion for a determination that further efforts to reunite the family were not required.This appeal ensued.
"To establish neglect, a petitioner must demonstrate, by a preponderance of the evidence,'that [a] child's physical, mental or emotional condition has been impaired or is in imminentdanger of becoming impaired and that the actual or threatened harm to the child is a consequenceof the failure of the parent to exercise a minimum degree of proper supervision or guardianshipof the child' " (Matter of ChelseaM., 61 AD3d 1030, 1031 [2009], quoting Matter of Krista LL., 46 AD3d 1209, 1210 [2007]; seeFamily Ct Act § 1046 [b] [i]; § 1012 [f] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; Matter of Shalyse WW., 63 AD3d1193, 1195 [2009], lv denied 13 NY3d 704 [2009]; Matter of Rebecca KK., 51 AD3d1086, 1087 [2008]). "Moreover, parental behavior must be evaluated 'objectively,' in light ofwhether a 'reasonable and prudent parent [would] have so acted, or failed to act, under thecircumstances then and there existing' " (Matter of Chelsea M., 61 AD3d at 1031,quoting Nicholson v Scoppetta, 3 NY3d at 370; see Matter of Rebecca KK., 51AD3d at 1087).
Here, even without considering the allegations of sexual abuse in the 2008 petition, there is asound and substantial basis in the record reflecting physical violence and emotional abuse andneglect to which the children were exposed. In February 2007, Stephiana UU. (born in 1991)was diagnosed with a depressive disorder and post-traumatic stress disorder. In 2008, shereported respondents to police after she and her siblings were subjected to new instances ofphysical violence and emotional abuse. The father also made it known to the children that heconsidered them a burden, and respondent Rita WW. (hereinafter the mother) refused to providetheir special needs child with medication as prescribed for him. Respondents denied engaging inany abusive conduct and blamed Stephiana for conflict in the family, setting up a credibilitydetermination for Family Court which we find no reason to disturb (see Matter of ShalyseWW., 63 AD3d at 1196; Matter ofEvelyn B., 30 AD3d 913, 914 [2006], lv denied 7 NY3d 713 [2006]).
As Family Court noted, these children were particularly vulnerable in light of the priordetermination of permanent neglect and their prolonged experience in foster care. Respondents'ongoing failure to rectify or take responsibility for the destructive environment in which theirchildren existed or recognize their need for services demonstrates respondents' "fundamentalmisunderstanding of [their] parental responsibilities" (Matter of Evelyn B., 30 AD3d at915) and their inability to safeguard their children's physical, mental and emotional well-being(see Matter of Shalyse WW., 63 AD3d at 1196; Matter of Evelyn B., 30 AD3d at915-916).[*3]
Under the circumstances, we find respondents' attempt toinvoke the doctrine of collateral estoppel unavailing. Collateral estoppel is an equitable doctrine" 'grounded on concepts of fairness and should not be rigidly or mechanically applied' "(Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997], quoting D'Arata v NewYork Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). "Because the doctrine is based ongeneral notions of fairness there are few immutable rules" (Gilberg v Barbieri, 53 NY2d285, 291 [1981]). We are cognizant of the fact that Family Court proceedings are "directed to theprotection of minors" and, "[c]onsequently, any relevant and material evidence may be admittedin any hearing under Family Court Act article 10" (Matter of Charles DD., 163 AD2d744, 747 [1990]). Moreover, "Family Court is duty bound to determine not only whether therehas been neglect or abuse in the past, but also the likelihood of such conduct in the future. Aparent's rights must be subordinate to the paramount purpose of the statute, which reflects thestrong public policy of the State to protect a child's interest against an unwilling or ineptdischarge of parental responsibilities" (id. [citation omitted]). The essential ingredientsof collateral estoppel are " '[f]irst, the identical issue necessarily must have been decided in theprior action and be decisive of the present action, and second, the party to be precluded fromrelitigating the issue must have had a full and fair opportunity to contest the prior determination'" (Matter of Juan C. v Cortines, 89 NY2d at 667, quoting Kaufman v Eli Lilly &Co., 65 NY2d 449, 455 [1985]).
Initially, we must examine whether petitioner is in privity with the Dutchess CountyDepartment of Social Services. Privity is "an amorphous concept not easy of application" and it"does not have a technical and well-defined meaning" (Matter of Juan C. v Cortines, 89NY2d at 667 [internal quotation marks and citation omitted]). "Generally, to establish privity theconnection between the parties must be such that the interests of the nonparty can be said to havebeen represented in the prior proceeding" (Green v Santa Fe Indus., 70 NY2d 244, 253[1987] [citation omitted]). We perceive no basis in the record that would support a conclusionthat the interests of the Dutchess County Department of Social Services in prosecutingallegations of child abuse and neglect against respondents were in any material respect differentfrom those of petitioner. Accordingly, we find that privity exists and turn our attention to theidentity of the issues in the prior proceeding.
It is well settled that " '[t]he party seeking the benefit of collateral estoppel has the burden ofdemonstrating the identity of the issues in the present litigation and the prior determination' "(Matter of Juan C. v Cortines, 89 NY2d at 667, quoting Kaufman v Eli Lilly &Co., 65 NY2d at 456). For collateral estoppel to apply, it is "critical" that the issues be"identical" (see People v Roselle, 84 NY2d 350, 357 [1994]; see also Ryan v NewYork Tel. Co., 62 NY2d 494, 500-501 [1984]). The record does not include the petitionsfiled in Dutchess County Family Court and, with one exception, respondents failed to establishthat any of the myriad instances of incestuous sexual abuse reflected in the record were actuallyconsidered and decided in the prior proceedings. Dutchess County Family Court did strike fromits findings language relating to respondents' knowledge of sexual abuse perpetrated uponStephiana by her half brother and respondents' failure to take appropriate action with respect tothat abuse. Petitioner was therefore precluded from relitigating that particular allegation inColumbia County. However, with the one exception noted, respondents have not met theirburden of establishing an identity of issues between the Dutchess County and Columbia Countyproceedings and the remaining allegations of sexual abuse in paragraphs four, six and eight ofthe current petition were properly considered.[*4]
Although all of the alleged acts of sexual abuseapparently predated the Dutchess County proceeding, respondents' failure to seek treatmentand/or counseling for Stephiana or her siblings persisted even after the Dutchess Countyadjudication. Subsequent allegations of neglect not covered by a prior petition are not barred bycollateral estoppel or res judicata (see Matter of Mercedes R., 300 AD2d 664, 664[2002]; Matter of Jesus II., 249 AD2d 846, 847 [1998]; Matter of Nassau CountyDept. of Social Servs. [Jean G.], 225 AD2d 779, 780-781 [1996]). For the same reason,evidence of excessive corporal punishment that predated, but was not raised in, the DutchessCounty proceeding was relevant and material to evaluating the environment in which additionalacts of excessive corporal punishment were inflicted on the children in Columbia County, andwere therefore properly considered (see Matter of Chelsea M., 61 AD3d at 1032;Matter of Evelyn B., 30 AD3d at 915).[FN2]Given the prior Dutchess County orders requiring sexual nonoffender training and angermanagement counseling, and respondents' poor compliance history with those orders, suchevidence was particularly relevant.
Respondents also contend that Family Court failed to comply with statutory requirements inrelieving petitioner of its obligation to make reasonable efforts to reunite the family (seeFamily Ct Act § 1039-b). Respondents, who were represented by counsel, failed topreserve this issue, as they did not oppose petitioner's motion for a determination to relieve it ofthis obligation. Were we to reach this issue, we would find that the court complied with thestatute.
A court may determine that reasonable efforts are no longer required upon a finding that "theparent of such child has subjected the child to aggravated circumstances" (Family Ct Act §1039-b [b] [1]). Prior to finding aggravated circumstances for failure to engage or securenecessary services, the court must inform the parent "that such an admission could eliminate therequirement that the local department of social services provide reunification services to theparent" (Family Ct Act § 1012 [j]). Respondents indicated that they would not complywith all of the services recommended by petitioner. When petitioner orally moved for relief, thecourt imposed all recommended services and provided respondents additional time to comply.The court advised respondents that, "[s]hould they not do so, the [c]ourt will consider a requestby [petitioner], on notice, to excuse further efforts on [petitioner's] part to impose upon[r]espondents the conditions they clearly have no intention of engaging in, nor find it necessaryto engage in." Respondents subsequently acknowledged receipt of petitioner's written motionand declined the court's offer of additional time to respond. Respondents then again refusedservices and petitioner's motion was granted without objection.
We have reviewed respondents' remaining claims, including the mother's claim of [*5]ineffective trial counsel, and find them to be without merit.
Mercure, J.P., Lahtinen, Kane and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: The eldest of the five childrenreached majority in January 2007.
Footnote 2: We note that a number ofjurisdictions permit consideration of evidence that was or could have been presented in a priorchild neglect proceeding determined in favor of the parents when subsequent proceedings arewarranted based on additional acts of neglect (see e.g. People ex rel. L.S., 721 NW2d 83,2006 SD 76 [2006]; Scott v Prince George's County Dept. of Social Servs., 76 Md App357, 545 A2d 81 [1988]; In Interest of A.S., 12 Kan App 2d 594, 752 P2d 705 [1988];People In Interest of J.R., 711 P2d 701 [Colo Ct App 1985]; In re Interest ofV.B., 220 Neb 369, 370 NW2d 119 [1985]; Matter of Newman, 49 Or App 221, 619P2d 901 [1980]).