| Matter of Anthony Y. (Kelly AA.\MPaul AA.) |
| 2010 NY Slip Op 03504 [72 AD3d 1419] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony Y. and Others, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent; Kelly AA., Respondent,and Paula AA. et al., Appellants. |
—[*1] Samuel D. Castellino, Elmira, for Karen AA., appellant. Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, for BroomeCounty Department of Social Services, respondent. Andrew M. Rothstein, Law Guardian, Elmira.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered April 10, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate the grandchildren of respondents Paul AA. and KarenAA. to be neglected.
Respondent Paul AA. (hereinafter the grandfather) and respondent Karen AA. (hereinafterthe grandmother) are the parents of respondent Kelly AA. (hereinafter the mother) and thegrandparents of the mother's children born in 1998, 2000, 2003 and 2006 (hereinafter referred toas the grandchildren). Shortly after giving birth to the youngest grandchild, the mother suffered abrain aneurysm and, following surgery, was in a weakened condition, prone to seizures and onmedication that hindered her ability to care for the grandchildren. As a result, the grandchildrenbegan residing primarily in the home of the grandparents, who had provided babysitting to themother since 1998.
The grandfather admits that in 1991, he was convicted by guilty plea of rape in the seconddegree after he had sexual intercourse with another of his daughters, who was then 14 years old.The grandfather evidently also forced his son to have sex with his daughter. Although he initiallywas released to probation after approximately seven months in prison, the grandfather wasresentenced to a prison term of 2 to 6 years after he violated the terms of his probation byassaulting the grandmother. At the time of his release from jail in 1995, the grandfather wasplaced on parole with the restriction that he was to have no contact with any children, includinghis own, until 1997. In addition, he was classified as a risk level two sex offender.
Due to the sex abuse and both grandparents' failure to recognize the seriousness of the riskthat the grandfather posed to their children or to complete the services required by petitioner, thegrandparents' parental rights to all of their children—including the mother—wereterminated. Upon discovering that the grandchildren were residing with the grandparents,petitioner commenced this Family Ct Act article 10 proceeding against the mother and thegrandparents. Petitioner alleged that the grandchildren were neglected because they wereregularly allowed to be in the grandfather's presence without sufficient supervision, despite thegrandfather's history and failure to complete adequate treatment for his sexual offense. Thegrandchildren were temporarily placed in foster care with the mother's consent, after which onegrandchild was placed in the custody of that child's father and the remaining three were returnedto the mother approximately two weeks later upon the imposition of variousconditions.[FN1]
Following a fact-finding hearing, Family Court determined that the mother and grandparentshad neglected the grandchildren by creating a substantial risk of harm. Thereafter, the courtissued an order of disposition directing that the mother's household be placed under [*2]petitioner's supervision and that the mother cooperate withpetitioner and its service providers, which she agreed to do. The court also permitted thegrandmother to have unsupervised visitation away from her home, but directed that any visits atthe grandparents' home, or with the grandfather at any location, be supervised by petitioner orthe mother. The grandparents now appeal from the order of disposition.[FN2]
We affirm. "[A] party seeking to establish neglect must show, by a preponderance of theevidence (see Family Ct Act § 1046 [b] [i]), first, that a child's physical, mental oremotional condition has been impaired or is in imminent danger of becoming impaired andsecond, that the actual or threatened harm to the child is a consequence of the failure of theparent or caretaker to exercise a minimum degree of care in providing the child with propersupervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; seeFamily Ct Act § 1012 [f] [i] [B]; Matter of Michael VV. [Arthur VV.], 68 AD3d 1210, 1211[2009]). We note that "[i]mminent danger . . . must be near or impending, notmerely possible" (Nicholson v Scoppetta, 3 NY3d at 369), and that parental behaviormust be evaluated "objectively: would a reasonable and prudent parent have so acted, or failed toact, under the circumstances then and there existing" (id. at 370). Particularly relevanthere, this Court has held that permitting a known sex offender to have unsupervised access toone's children generally evinces a "flawed understanding of [the] parental duty to protectchildren from harm so as to create a substantial risk of harm for any child in . . .[the parent's] care" (Matter of EvelynB., 30 AD3d 913, 916 [2006], lv denied 7 NY3d 713 [2006] [citations omitted];see Matter of Michael VV. [Arthur VV.], 68 AD3d at 1211; Matter of Mary MM., 38 AD3d956, 957 [2007]; cf. Matter ofKrista L., 20 AD3d 783, 785 [2005]).
The grandparents and the Law Guardian argue that the evidence here does not support afinding that the grandchildren were in imminent danger of substantial harm, or that thegrandfather had unsupervised contact with the grandchildren. They maintain that thegrandmother provided adequate supervision and, as a result of having taken a preventiveparenting course in the early 1990s and absorbing the lessons learned therein, appreciated therisk and was ever vigilant in guarding against it. Our review of the record, however, reveals thatcontrary to these arguments and the assertion that Family Court essentially applied apresumption of neglect based solely upon the grandfather's status as a level two sex offender, thecourt's findings of neglect are amply supported by the evidence presented at the fact-findinghearing.
It is undisputed that although the grandfather participated in sex offender treatment when hewas incarcerated, he was not accepted into community-based treatment due to the violent natureof his sexual offense and, thus, received no further treatment after his release from prison. Thegrandfather conceded that he and the grandmother were watching the grandchildren on a regularbasis, including overnight. Moreover, while the grandparents now indicate that the grandmotherprovided all supervision and comprehended the risk as a result of the counseling [*3]received in connection with the neglect proceedings involving herown children, the grandmother testified that there was no legal basis for the prior termination ofher parental rights because she never "did anything wrong." She further stated that she remainedunaware of the details of the grandfather's sexual offenses against her children, that she neverasked the grandfather whether he required further sex offender treatment because she "leave[s]his business to him," and that she was willing to leave the grandchildren alone with thegrandfather "[j]ust to give him the benefit of a doubt for at least once, and if somethinghappened, turn it in." It is also significant that some of the grandchildren are now approachingthe age that their aunt and uncle were when the grandfather abused them.
"According great deference to [Family Court's] factual findings, which will . . .be disturbed [only] if they lack a sound and substantial basis in the record" (Matter of EvelynB., 30 AD3d at 914 [internal quotation marks and citations omitted]; accord Matter of Karissa NN., 19AD3d 766, 766 [2005]), we agree with the court that petitioner established neglect. Inparticular, Family Court properly determined that the grandparents' failure to understand thesexual abuse dynamic and the mother's reliance upon the grandparents as the primary caretakersplaced the grandchildren in imminent danger of substantial harm and constituted a failure toexercise a minimum degree of care in providing supervision (see Matter of Michael VV.[Arthur VV.], 68 AD3d at 1211-1212; Matter of Neithan CC., 56 AD3d 1000, 1001 [2008]; Matter of Jessica P., 46 AD3d1142, 1143-1144 [2007]; Matter of Mary MM., 38 AD3d at 957; cf. Matter ofKrista L., 20 AD3d at 785).
We have considered the grandparents' remaining arguments and conclude that they arelacking in merit.
Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The grandfather was alsoarrested and charged with endangering the welfare of a child. That charge was subsequentlydismissed.
Footnote 2: The mother has not appealed.