| Matter of Idhailia P. (Philip S.P.) |
| 2012 NY Slip Op 04177 [95 AD3d 1333] |
| May 30, 2012 |
| Appellate Division, Second Department |
| In the Matter of Idhailia P. Dutchess County Department of SocialServices, Respondent; Philip S.P., Appellant. (Proceeding No. 1.) In the Matter of Steven H.Dutchess County Department of Social Services, Respondent; Philip S.P., Appellant.(Proceeding No. 2.) In the Matter of Evelyn H. Dutchess County Department of Social Services,Respondent; Philip S.P., Appellant. (Proceeding No. 3.) In the Matter of Makayla H. DutchessCounty Department of Social Services, Respondent; Philip S.P., Appellant. (Proceeding No. 4.) |
—[*1] James Fedorchak, County Attorney, Poughkeepsie, N.Y. (Laura Gail Skojec of counsel), forrespondent. Diane P. Foley, Wappingers Falls, N.Y., attorney for the children.
In related child protective proceedings pursuant to Family Court Act article 10, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County(Sammarco, J.), dated January 31, 2011, as granted that branch of the petitioner's motion whichwas for summary judgment on the issue of the father's derivative neglect of the subject childrenSteven H., Evelyn H., and Makayla H.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.[*2]
In June 2009, the Dutchess County Department of SocialServices (hereinafter DSS) filed petitions pursuant to Family Court Act article 10, alleging,among other things, that the father sexually abused the subject child Idhailia P. and derivativelyneglected the subject children Steven H., Evelyn H., and Makayla H. Each petition alleged, interalia, that, from the time Idhailia was 12 years old and up until May 16, 2009, when Idhailia P.was 16, the father engaged in sexual intercourse with her. On December 22, 2010, the father wasconvicted in the County Court, Dutchess County, upon his plea of guilty, of rape in the seconddegree (Penal Law § 130.30) and criminal sexual act in the second degree (Penal Law§ 130.45), for the acts he committed against Idhailia P.
After the convictions, DSS moved for summary judgment on the Family Court Act article 10petitions, based upon the criminal convictions and the doctrine of collateral estoppel. The FamilyCourt granted those branches of the motion which were for summary judgment on the issues ofthe father's abuse of Idhailia P. and derivative neglect of Steven H., Evelyn H., and Makayla H.The father appeals from so much of the order as granted that branch of the motion which was forsummary judgment on the issue of the father's derivative neglect of Steven H., Evelyn H., andMakayla H.
The Family Court properly granted that branch of the motion of DSS which was for summaryjudgment on the issue of the father's derivative neglect. DSS met its prima facie burden ofshowing that the doctrine of collateral estoppel is applicable (see Matter of Suffolk CountyDept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]; Matter of Ajay P. , 60 AD3d 681,683 [2009]). "A determination in a criminal action may be given collateral estoppel effect in aFamily Court proceeding where the identical issue has been resolved, and the defendant in thecriminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct"(Matter of Javon T., 64 AD3d608, 608 [2009]; see Matter of Suffolk County Dept. of Social Servs. v James M., 83NY2d at 182-183; Matter of YamilletteG. [Marlene M.], 74 AD3d 1066, 1067 [2010]; Matter of Leon K. [Marilyn O.], 69 AD3d 856, 857 [2010];Matter of Ajay P., 60 AD3d at 683). The father's plea of guilty to rape in the seconddegree and criminal sexual act in the second degree constituted convictions (see CPL1.20 [13]) for sexual crimes based upon the same acts constituting the allegations of sexual abuseas set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012 [e][iii]).
Further, since the father's plea of guilty and admission to repeatedly engaging in sexualintercourse with Idhailia P. established a fundamental defect in the father's understanding of hisparental duties relating to the care of children, DSS demonstrated, prima facie, that the otherchildren were derivatively neglected (see Family Ct Act § 1046 [a] [i]; see alsoMatter of Ajay P., 60 AD3d at 683).
In opposition, the father failed to raise a triable issue of fact as to either the collateral effectof his convictions or as to whether the other children were derivatively neglected (see Matterof Suffolk County Dept. of Social Servs. v James M., 83 NY2d at 183; Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). Rather, his submission of only an attorneyaffirmation in opposition to the motion was insufficient, as a matter of law, to raise a triable issueof fact (see Zuckerman v City of New York, 49 NY2d at 563).
Accordingly, the Family Court properly granted that branch of the petitioner's motion whichwas for summary judgment on the issue of the father's derivative neglect of Steven H., Evelyn H.,and Makayla H. (see Family Ct Act § 1012 [f] [i]; § 1046 [a] [i]; see alsoMatter of Ajay P., 60 AD3d at 683; Matter of Justin P., 50 AD3d 802, 803 [2008]).
To the extent the father raises arguments related to the Family Court's subsequent order offact-finding and disposition, dated July 15, 2011, those contentions are not properly before thisCourt, as the father did not appeal from that order (see CPLR 5515 [1]; Matter of Alexus M. v Jenelle F., 91AD3d 648, 651 [2012]; Maybaum vMaybaum, 89 AD3d 692, 698 [2011]). Rivera, J.P., Belen, Sgroi and Miller, JJ., concur.