| Matter of Richard S. (Michael S.) |
| 2010 NY Slip Op 02688 [72 AD3d 1133] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Richard S. and Another, Children Alleged to beNeglected. Delaware County Department of Social Services, Respondent; Michael S., Appellant.(And Another Related Proceeding.) |
—[*1] Richard B. Spinney, County Attorney, Delhi (Porter L. Kirkwood of counsel), for DelawareCounty Department of Social Services, respondent. Catherine E. Stuckart, Binghamton, for Mindy S., respondent. Jane M. Bloom, Law Guardian, Rock Hill.
Cardona, P.J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered October 20, 2008, which, among other things, granted petitioner's application, in aproceeding [*2]pursuant to Family Ct Act article 10, toadjudicate respondent's children to be neglected.
Respondent was convicted in 2004 of unlawful surveillance in the second degree for secretlyphotographing girls undressing in the locker room of the high school where he worked. CountyCourt (Coccoma, J.) sentenced him to a four-month intermittent term of imprisonment and fiveyears of probation. Respondent violated the terms of his probation on several occasions, two ofwhich are particularly relevant here. First, in May 2006, County Court found respondent to be inviolation of the condition that required him to stay away from places where children under theage of 17 are known to congregate and prohibited him from being responsible for the care of anychild under the age of 17. The violation was based upon respondent's contact with his daughter(born in 1999) and son (born in 1996) and, as a result, the court enlarged the conditions ofprobation to prohibit respondent from living with his children. Second, in March 2008, CountyCourt found respondent to be in violation of its order requiring him to undergo a forensic sexoffender evaluation. This violation resulted in the court revoking respondent's probation andsentencing him to 1
In April 2008, petitioner commenced this proceeding alleging that respondent neglected hischildren by, among other things, violating the above conditions of his probation by continuing tolive in the family home and refusing to cooperate with sex offender treatment. Following ahearing, Family Court found that respondent had been a frequent visitor to the children'shousehold and stayed overnight at that residence. The court concluded that his doing so, coupledwith his refusal to undergo a sex offender evaluation, represented an immediate risk to thechildren's physical, mental and emotional health, "[e]specially where, as here, the children werebeing encouraged to conceal his presence in the household, [the daughter] had been acting outsexually and [the son] had been expelled from school for violent outbursts." A finding of neglectwas made and, thereafter, the parties consented to the entry of an order of protection as thedisposition. Respondent now appeals, challenging the finding of neglect.[FN1]Upon our review of the record, we affirm.
Initially, to the extent that respondent challenges the order requiring him to undergo a sexoffender evaluation, we note that the requirement was imposed in connection with respondent'scriminal conviction. We also note that he did not appeal from the subsequent order finding himto be in willful violation of probation for refusing to comply with it. In any event, hiscooperation with the sex offender evaluation was a reasonable and necessary requirement toensure the children's safety given the uncontroverted record of respondent's history in relation tohis criminal conviction and subsequent violations of conditions of his probation. Specifically, itis significant that not only were the facts underlying respondent's conviction indisputably sexualin nature, but he was also later found to have violated his probation by having pornography in his[*3]household, including material involving very young women,filming women exiting a department store, focusing on their genitalia, and going to a stateuniversity to observe girls walking around the campus.
Respondent's repeated refusal to undergo the evaluation[FN2]is particularly significant given evidence supporting Family Court's finding that respondentstayed overnight in the household with his children.[FN3]In that regard, we note that respondent's daughter has made statements to school officials to theeffect that, among other things, respondent has come into her bedroom at night and has put hispenis between her legs (see Matter ofKayla F., 39 AD3d 983, 984 [2007]). Although her statements have, at times, beeninconsistent, they nonetheless support the importance of obtaining an evaluation. Furthermore,even though respondent denies living with the children, testimony and documentary evidenceestablished that applications for public assistance completed by respondent and his wife listedrespondent as a resident of the household. Additionally, on several occasions, both respondentand his wife admitted to investigators and caseworkers that he was temporarily living in thechildren's home. Moreover, both children revealed that respondent was staying with them,although the record indicates that respondent and his wife encouraged them to conceal it. Whilerespondent, his wife, and other family members presented contradictory testimony, FamilyCourt's conclusion that they were not credible is supported by a sound and substantial basis inthe record and, therefore, we defer to those credibility determinations (see Matter of Brandi U., 47 AD3d1103, 1104 [2008]; Matter ofSabrina M., 6 AD3d 759, 761 [2004]).
Based upon the foregoing, we agree with Family Court that petitioner demonstrated by apreponderance of the evidence that respondent's repeated refusal to undergo the court-orderedsex offender evaluation represented an imminent risk to the children's physical, mental andemotional health (see Family Ct Act § 1012 [f] [i] [B]; Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; Matter of Xavier II., 58 AD3d 898, 899 [2009]). Accordingly, wedecline to disturb the court's finding of neglect.[*4]
Respondent's remaining contentions, including his claimthat Family Court was biased, have been examined and found to be without merit.
Peters, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: A separate neglect petition wasfiled against respondent's wife. She was also found to have neglected the children, but has notappealed.
Footnote 2: After County Court revokedrespondent's probation, he finally submitted to the evaluation, which found that he demonstratedsignificant issues related to sex offender behavior and recommended that he participate in a sexoffender extended evaluation and education group.
Footnote 3: This Court later reversed thedeclaration of delinquency that had resulted in County Court enlarging his conditions ofprobation to prohibit him from residing with his own children. However, it is uncontroverted thatrespondent was aware of the then-existing condition when he stayed overnight in the householdwith them.