| Matter of Afton C. (James C.) |
| 2010 NY Slip Op 02142 [71 AD3d 887] |
| March 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of Afton C., a Child Alleged to be Neglected.Dutchess County Department of Social Services, Respondent; James C. et al., Appellants.(Proceeding No. 1.) In the Matter of Katy C., a Child Alleged to be Neglected. Dutchess CountyDepartment of Social Services, Respondent; James C. et al., Appellants. (Proceeding No. 2.) Inthe Matter of Ostyn C., a Child Alleged to be Neglected. Dutchess County Department of SocialServices, Respondent; James C. et al., Appellants. (Proceeding No. 3.) In the Matter of PrestynC., a Child Alleged to be Neglected. Dutchess County Department of Social Services,Respondent; James C. et al., Appellants. (Proceeding No. 4.) In the Matter of Trevor C., a ChildAlleged to be Neglected. Dutchess County Department of Social Services, Respondent; James C.et al., Appellants. (Proceeding No. 5.) |
—[*1] Grace C., Poughkeepsie, N.Y., appellant pro se. Ronald L. Wozniak, County Attorney, Poughkeepsie, N.Y. (Laura Gail Skojec of counsel),for respondent. John A. Pappalardo, White Plains, N.Y., attorney for the children Afton C., Ostyn C., KatyC., and Prestyn C. [*2]Ronna L. DeLoe, Mamaroneck, N.Y., attorney for thechild Trevor C.
In five related neglect proceedings pursuant to Family Court Act article 10, the fatherappeals, as limited by his brief, from so much of a fact-finding order of the Family Court,Dutchess County (Sammarco, J.), entered February 24, 2009, as, after a hearing, found that heneglected the subject children, and the mother separately appeals from so much of the sameorder as found that she neglected the subject children.
Ordered that the order is reversed, on the law, without costs or disbursements, the petitionsare denied, and the proceedings are dismissed.
The petitioner Dutchess County Department of Social Services (hereinafter DSS) filedneglect petitions pursuant to Family Court Act article 10 against the father and the motheralleging that the father was an "untreated" level three sex offender who, after his release, hadreturned to the family home wherein the subject children resided, and that the mother, byallowing the father to return to the home, failed to protect the subject children. Following afact-finding hearing, the Family Court found that the parents had neglected the subject children.The attorney for the subject children Afton C., Katy C., Ostyn C. and Prestyn C., joins theparents in urging reversal of the fact-finding order appealed from.
Family Court Act § 1012 (f) defines a neglected child as one "whose physical, mentalor emotional condition has been impaired or is in imminent danger of becoming impaired as aresult of the failure of his parent or other person legally responsible for his care to exercise aminimum degree of care" by, inter alia, "unreasonably inflicting or allowing to be inflicted harm,or a substantial risk thereof" (Family Ct Act § 1012 [f] [i] [B]).
Here, DSS failed to establish by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]) that the father's presence in the home had impaired the subject children'sphysical, mental, or emotional well-being, or placed them in imminent danger of suchimpairment (see Nicholson vScoppetta, 3 NY3d 357, 368-369 [2004]). The mere fact that a designated sex offenderresides in the home is not sufficient to establish neglect absent a showing of actual danger to thesubject children (see Matter of KaylaF., 39 AD3d 983, 985-986 [2007]; Matter of Krista L., 20 AD3d 783, 785 [2005]; see also Matterof Cornell v Cornell, 290 AD2d 735, 737 [2002]; cf. Matter of Anndrena A., 13 AD3d 1164, 1164-1165 [2004];Matter of Dutchess County Dept. of Social Servs. v Peter B., 224 AD2d 617, 617-618[1996]). Although the Family Court could properly consider the parents' evasiveness in theirtestimony and the father's invocation of his Fifth Amendment privilege (see generally KaylaF., 39 AD3d at 985; Matter ofNathaniel II., 18 AD3d 1038, 1039 [2005]), the evidence was insufficient to establishthat the father posed an imminent danger to the children. Since DSS did not establish that thefather posed a danger to the subject children, it follows that the mother did not neglect thechildren by allowing the father to reside in their home. Accordingly, the Family Court erred infinding that the parents had neglected the subject children.
The father's challenge to the order of protection dated February 24, 2009, is not properlybefore this Court as he failed to appeal from that order. Fisher, J.P., Angiolillo, Leventhal andLott, JJ., concur.