| Matter of Hannah U. (Dennis U.) |
| 2012 NY Slip Op 05568 [97 AD3d 908] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Hannah U. and Another, Children Alleged to beNeglected. Cynthia L. O'Connell, as Attorney for the Children, Respondent; Dennis U.,Appellant. (And Two Other Related Proceedings.) |
—[*1] Cynthia L. O'Connell, Plattsburgh, respondent pro se.
Malone Jr., J. Appeal from an order of the Supreme Court (Lawliss, J.), entered January 18,2011 in Clinton County, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to beneglected by respondent.
Respondent is the father of a daughter (born in 2005) and a son (born in 2008). In 2010,petitioner, the attorney for the children, commenced this proceeding against respondent allegingthat he had neglected the children because he was a sex offender who had refused treatment andhad violated the terms of his probation.[FN1]Respondent and the Clinton County Department of [*2]SocialServices (hereinafter DSS) opposed the petition and moved to dismiss it. Following afact-finding hearing,[FN2]Supreme Court, among other things, adjudicated the subject children to be neglected byrespondent. Respondent appeals.
As is relevant here, petitioner, as the party seeking to establish neglect, bore the burden ofestablishing, by a preponderance of the evidence, first that the children's "physical, mental oremotional condition [was] impaired or [was] in imminent danger of becoming impaired" and,second, that such harm was directly attributable to a failure on the part of respondent "to exercisea minimum degree of care . . . in providing the [children] with proper supervision orguardianship" (Family Ct Act § 1012 [f] [i] [B]; see Family Ct Act § 1046[b] [i]; Nicholson v Scoppetta, 3NY3d 357, 368 [2004]). "In order for danger to be 'imminent,' it must be 'near or impending,not merely possible' . . . [and] there must be a 'causal connection between the basisfor the neglect petition and the circumstances that allegedly produce the . . .imminent danger of impairment' " (Matter of Afton C. [James C.], 17 NY3d 1, 9 [2011], quotingNicholson v Scoppetta, 3 NY3d at 369). Further, any impairment to the children "must beclearly attributable to the unwillingness or inability of the respondent to exercise a minimumdegree of care toward" them (Family Ct Act § 1012 [h]), rather than what may be deemed"undesirable parental behavior" (Nicholson v Scoppetta, 3 NY3d at 369). Indeed, "thestatutory test is 'minimum degree of care'—not maximum, not best, not ideal"(id. at 370). With those standards in mind, upon a review of this record, there must be areversal of Supreme Court's finding of neglect as to respondent.
Initially, contrary to petitioner's contentions, respondent's status as a registered risk level IIsex offender does not constitute per se neglect or otherwise create a presumption of neglect(see Matter of Afton C., 17 NY3d at 10). Moreover, the evidence does not support afinding that respondent is an untreated sex offender inasmuch as the record shows that hesuccessfully completed sex offender treatment programs in 2007 and 2008, more than two yearsprior to the filing of the instant neglect petition, and there is no suggestion that he has committedany further sex-related offenses since the offense in 2004. Supreme Court's conclusion thatrespondent did not meaningfully benefit from his participation in those programs was belied bytestimony of one of his counselors, and was based solely upon the court's own belief that thecounselors in the most recent program attended by respondent, to which he was referred by DSS,were not sufficiently qualified to run a meaningful or successful program. The court's finding inthat regard is not supported by any evidence in the record.
As for petitioner's allegation that respondent violated the terms of his probation, it wasundisputed that, despite a term of his probation that prohibited him from consuming alcohol,respondent was convicted of driving while ability impaired in 2006 and driving while intoxicatedin 2007. However, this conduct occurred before the 2007 neglect proceeding, and there was no[*3]evidence that these convictions were not already submitted asevidence in that proceeding. In any event, that conduct preceded the instant petition by two years,and petitioner failed to refute respondent's claim that he had not consumed alcohol since his 2007conviction. Further, while it was also undisputed that respondent had presented his probationofficer with falsified attendance slips for some Alcoholics Anonymous meetings, there was noevidence as to how this conduct—although certainly not to be condoned—rose tothe level of creating any actual or imminent danger of impairment to the children sufficient towarrant a finding of neglect under these circumstances.
The record reflects that, other than the incident regarding his falsification of the attendanceslips, respondent's conduct since the 2007 neglect proceeding has improved, and he has not beenunder DSS supervision since 2008 or probation supervision since 2009—more than oneyear prior to the instant neglect petition. As petitioner conceded, while respondent was underDSS supervision, he complied with all court orders and recommendations. Notably, DSS wasaware of the overall family situation and, as early as 2009, approved respondent's unsupervisedvisitation with his children. In 2010, DSS approved of his taking custody of the children and hisstepchildren and, in fact, actively opposed the instant petition. Under the particular circumstancespresented here, while respondent's overall conduct historically has been, at times, troubling,petitioner has failed to demonstrate that such conduct constituted the neglect of his children.
Peters, P.J., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as found that respondent neglected hischildren; petition against respondent dismissed; and, as so modified, affirmed.
Footnote 1: While there is no order in therecord, it appears that upon the reluctance of the Clinton County Department of Social Servicesto file the within petition, Family Court—pursuant to Family Ct Act § 1032(b)—directed the attorney for the children to file and litigate the petition.
Footnote 2: Prior to the commencement ofthis proceeding against respondent, two Family Ct Act article 10 proceedings were commencedagainst the mother, one by DSS and the other by petitioner, apparently at the direction of FamilyCourt. Those two proceedings were resolved in the order appealed from but are not at issue onthis appeal.