| Matter of Joanne II. (Thomas II.) |
| 2012 NY Slip Op 07915 [100 AD3d 1204] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Joanne II. and Others, Children Alleged to beAbused. Saratoga County Department of Social Services, Respondent; Thomas II., Appellant.(Proceeding No. 1.) In the Matter of Joanne II. and Others, Children Alleged to be Neglected.Saratoga County Department of Social Services, Respondent; Thomas II., Appellant. (ProceedingNo. 2.) |
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Stephen M. Dorsey, Saratoga County Department of Social Services, Ballston Spa (MaryBeth Hynes of counsel), for respondent.Amy J. Knussman, Ballston Spa, attorney for the children.
Garry, J. Appeals from two orders of the Family Court of Saratoga County (Jensen, J.),entered September 14, 2011, which granted petitioner's applications, in two proceedings pursuantto Family Ct Act article 10, to adjudicate respondent's children to be abused and/or neglected.
Respondent is the father of four children (born in 1999, 2002, 2006 and 2008). In February2011, petitioner commenced these Family Ct Act article 10 proceedings alleging that respondenthad sexually abused the child born in 2006 (hereinafter the child) and had thereby derivativelyabused and/or neglected the three other children. Following fact-finding and dispositionalhearings, Family Court sustained the petitions and, among other things, ordered respondent to beplaced under petitioner's supervision for one year and prohibited contact with any of the childrenuntil he successfully completed sex offender treatment. Respondent appeals, limiting hischallenge to the determinations of derivative abuse and neglect as to the children born in 1999and 2002, and the bar of contact with these two children.
As respondent contends, proof that one child has been abused is admissible on the issue ofthe derivative abuse or neglect of other children, but "typically may not serve as the sole basis for[such] a finding" (Matter of CadejahAA., 33 AD3d 1155, 1157 [2006] [internal quotation marks and citation omitted];see Family Ct Act § 1046 [a] [i]; Matter of Michael N. [Jason M.], 79 AD3d 1165, 1167 [2010]).However, evidence of the abuse of one child can suffice to establish derivative abuse or neglectwhen the conduct at issue "evidence[s] fundamental flaws in the respondent's understanding ofthe duties of parenthood" so profound as to place any child in his or her care at substantial risk ofharm (Matter of Evelyn B., 30AD3d 913, 915 [2006], lv denied 7 NY3d 713 [2006] [internal quotation marks andcitations omitted]; see Matter of KoleHH., 61 AD3d 1049, 1053 [2009], lv dismissed 12 NY3d 898 [2009]; Matterof Shaun X., 300 AD2d 772, 772 [2002]). We agree with Family Court that the evidencehere met that standard.
Several witnesses, including a counselor, a sheriff's department investigator and a childprotective caseworker, testified that the child, just four years old, had disclosed that respondentsexually abused her. Respondent's mother (hereinafter the grandmother) described dramatic anddisturbing changes in the child's personality and behavior that led to the child's disclosures.Concerned about these changes, the grandmother took the child to a counseling session inDecember 2010, where the child used dolls to show the grandmother and the counselor whatrespondent had allegedly done. The grandmother testified that when she confronted respondentabout these allegations later that day, he stated that he was going to pick up his youngest child(born in 2008) and then "go blow [his] head off," and he wrote out and signed a statement [*2]purporting to be a will.
Petitioner's expert, a clinical psychologist specializing in sexual abuse, testified that sheconducted a specialized sexual abuse evaluation of the child during which, among other things,the child stated that respondent did "private stuff" to her, that the abuse happened "a bunch oftimes" and that the child did not want to visit respondent any more. The child used dolls anddrew pictures to demonstrate respondent's actions. The psychologist described certain criteriaused in her evaluation, such as the "naive" quality of the child's language, which tended todemonstrate that she had not been coached, and concluded within a reasonable degree of medicalcertainty that the child's account was consistent with those of known sexual abuse victims.Petitioner's caseworker also described disclosures the child had made to her, and further testifiedthat she was told by the mother of respondent's youngest child—then two or three yearsold—that this child's rectal and vaginal areas were red when she returned from visits withrespondent, and that this child also displayed sudden disturbing behavior changes aroundThanksgiving 2010, after overnight visits with respondent.
Family Court found that the testimony of all of petitioner's witnesses was credible, whilerespondent's testimony—in which he denied having sexual contact with thechild—was not. According the appropriate deference to the court's credibility assessments(see e.g. Matter of Richard S. [MichaelS.], 72 AD3d 1133, 1136 [2010]), we find a sound and substantial basis in the record forits conclusion that respondent's sexual abuse of this very young and vulnerable child"demonstrates such an impaired level of parental judgment as to create a substantial risk of harmfor any child in [his] care" and, thus, we will not disturb the determination (Matter of Rebecca FF. [David FF.], 81AD3d 1119, 1120 [2011] [internal quotation marks and citations omitted]; see Matter of Ramsey H. [BenjaminK.], 99 AD3d 1040, 1042 [2012]; Matter of Branden P. [Corey P.], 90 AD3d 1186, 1189 [2011]; Matter of Doe, 47 AD3d 283, 287[2007], lv denied 10 NY3d 709 [2008]; Matter of Sabrina M., 6 AD3d 759, 761 [2004]).
Finally, respondent's challenge to the orders of protection barring him from contact with anyof the children until he successfully completes sex offender treatment is moot, as the ordersexpired by their own terms in August 2012 (see Matter of Dezerea G. [Lisa G.], 97 AD3d 933, 935 [2012]; Matter of Chelsea M. [Ernest M.], 68AD3d 1489, 1489 [2009]; Matter ofDestiny HH., 63 AD3d 1230, 1231 [2009], lv denied 13 NY3d 706 [2009]; see also Matter of Kole HH. [ThomasHH.], 84 AD3d 1518, 1520 [2011]).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the orders areaffirmed, without costs.