| Matter of Christopher C. (Joshua C.) |
| 2010 NY Slip Op 04291 [73 AD3d 1349] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Christopher C., a Child Alleged to be Neglected.Saratoga County Department of Social Services, Appellant; Joshua C.,Respondent. |
—[*1] O'Connell & Aronowitz, Albany (Richard H. Weiskopf of counsel), for respondent. John J. LaBoda Jr., Law Guardian, Saratoga Springs.
McCarthy, J. Appeal from an order of the Family Court of Saratoga County (Hall, J.),entered February 20, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's child to be neglected.
In 2003, respondent was convicted of attempted sexual abuse in the first degree, sentenced toa year in jail and designated a risk level three sex offender for inappropriately touching a youngfemale relative in 1997. He also acknowledged touching another young female relative over thecourse of three years ending in 1997, and engaging in sexual intercourse with her two or threetimes. Both of these children were his sister's daughters and respondent lived with his sister'sfamily during part of the time that the abuse occurred. In 2008, respondent pleaded guilty toendangering the welfare of a child in connection with allegations that he had sexually abused aneight-year-old boy in 1998. When respondent's son was born in December 2007, petitionerbecame involved with the family. At petitioner's insistence, respondent began engaging in sex[*2]offender treatment, but he was unsuccessfully discharged.Based on respondent's status as a registered risk level three sex offender who had not completedsex offender treatment, petitioner commenced this proceeding alleging that respondent neglectedhis son. After respondent's wife testified and respondent testified in part at a fact-finding hearing,the hearing was halted and the parties submitted the matter to Family Court on a stipulatedrecord. The court, in a written decision, dismissed the petition against respondent, promptingpetitioner's appeal.
Family Court improvidently dismissed the neglect petition. To establish neglect, petitionerwas required to prove by a preponderance of the evidence that the child's condition was inimminent danger of impairment due to respondent's failure to exercise a minimum degree of carein providing proper supervision or guardianship, by unreasonably inflicting harm, or creating asubstantial risk of harm (see Family Ct Act § 1012 [f] [i] [B]; § 1046 [b] [i];Matter of Michael VV. [ArthurVV.], 68 AD3d 1210, 1211 [2009]). A parent's behavior that is alleged to constituteneglect is measured against the behavior of a reasonable and prudent parent confronted with thesame circumstances (see Matter of Michael VV. [Arthur VV.], 68 AD3d at 1211; Matter of Alaina E., 33 AD3d1084, 1086 [2006]). Proof that respondent abused or neglected another child was admissibleas evidence in this proceeding (see Family Ct Act § 1046 [a] [i]), though suchevidence usually may not serve as the sole basis for a finding of neglect of the subject child (see Matter of Evelyn B., 30 AD3d913, 914 [2006], lv denied 7 NY3d 713 [2006]).
Here, in addition to respondent's prior abuse of children, the petition relied on his failure toaddress the condition that led to that behavior. Respondent admitted that he sexually abused twofemale family members over a period of several years, culminating in multiple instances ofsexual intercourse with one of them. He was convicted of attempted sexual abuse in the firstdegree and designated a risk level three sex offender for this conduct. He was also convicted of acrime arising out of an allegation that he sexually abused an eight-year-old boy.
Respondent has not voluntarily engaged in and completed sex offender treatment for his ownand his family's benefit. He began such treatment while criminal charges were pending in 2003,but was unable to complete it prior to his incarceration. After the birth of the subject child,petitioner's caseworker encouraged respondent to participate in treatment to avoid a neglectpetition. Although he attended treatment in 2008, he was unsuccessfully discharged. Thetherapist in charge of the program noted that respondent had problems with truthfulness and thathis history indicated "a higher risk of re-offending," and recommended that he have no contactwith any child. At the time of the hearing, respondent was seeing a counselor for other medicalproblems, namely depression and anxiety, but not for sex offender treatment.
Accepting the testimony of respondent and his wife, which Family Court found credible (see Matter of Christian F., 42 AD3d716, 717-718 [2007]; Matter of Alaina E., 33 AD3d at 1086), respondent fulfilled allof his obligations as a registered sex offender and abided by an agreement with petitioner that henot have any unsupervised contact with his son (compare Matter of Neithan CC., 56 AD3d 1000, 1001 [2008]).Nevertheless, considering all of the circumstances herein—including numerous instancesof sexual abuse of young children, both female and male, related to respondent and unrelated,along with respondent's inability or unwillingness to engage in and successfully complete sexualoffender treatment—we find that a preponderance of the evidence established thatrespondent has not acted as a reasonably prudent parent to prevent an imminent danger ofimpairment or substantial risk of harm to the child. Hence, we find that respondent neglected hisson and the petition should have been granted.[*3]
Cardona, P.J., Spain, Malone Jr. and Egan Jr., JJ., concur.Ordered that the order is reversed, on the law, without costs, petition granted and matter remittedto the Family Court of Saratoga County for a dispositional hearing.