| Matter of Lillian SS. (Brian SS.) |
| 2014 NY Slip Op 04101 [118 AD3d 1079] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Lillian SS. and Another, ChildrenAlleged to be Neglected. Ulster County Department of Social Services,Respondent; Brian SS., Appellant. (And Another RelatedProceeding.) |
Ted J. Stein, Woodstock, for appellant.
Heather D. Harp, Ulster County Department of Social Services, Kingston, forrespondent.
Daniel Gartenstein, Kingston, attorney for the child.
Marian Cocose, Bearsville, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered March 29, 2013, which granted petitioner's applications, in two proceedingspursuant to Family Ct Act article 10, to adjudicate the subject children to beneglected.
Petitioner commenced these proceedings alleging that respondent Brian SS.(hereinafter the father) and respondent Keri SS. (hereinafter the mother), the marriedparents of Lillian SS. (born in 2010), neglected her and Lee TT. (born in 1997), themother's son from a previous relationship. The allegations of neglect were based on therisk posed by the father, an untreated risk level three sex offender, and the mother'sinadequate supervision and guardianship. After a lengthy fact-finding hearing, FamilyCourt determined that the father had been convicted in 1996 [*2]in North Carolina of the crime of indecent liberties with aminor after pleading guilty to placing his penis in the mouth of his two-year-old daughterand that, while on probation in 1997 for that offense, he was charged with raping hisgirlfriend's 18-month-old daughter and ultimately entered an Alford plea in 1999to taking indecent liberties with a child. Upon moving to New York in 2011, the fatherwas classified as a risk level three sex offender. Petitioner submitted evidence that thefather had not completed the sex offender treatment that had been a condition of hisinitial probation and had not engaged in any sex offender treatment while imprisoned forhis second offense. The father consistently denied abusing his daughter and claimed thathis second conviction was only for a probation violation. The mother testified that shebelieved the father's version of both events and would be comfortable leaving him alonewith her children, despite her knowledge of his past and his failure to inform her of thedetails of his second conviction. Family Court determined that the mother and the fatherneglected both children, and the father now appeals.
Petitioner bore the burden of establishing, by a preponderance of the evidence, "firstthat the children's 'physical, mental or emotional condition [was] impaired or [was] inimminent danger of becoming impaired' and, second, that such harm was directlyattributable to a failure on the part of [the] respondent 'to exercise a minimum degree ofcare . . . in providing the [children] with proper supervision orguardianship' " (Matterof Hannah U. [Dennis U.], 97 AD3d 908, 908-909 [2012], quoting Family CtAct § 1012 [f] [i] [B]; see Family Ct Act § 1046 [b][i]). While actual harm is not required, the imminent danger of harm "must be near orimpending, not merely possible" (Nicholson v Scoppetta, 3 NY3d 357, 369 [2004])."[A]dditionally, there must be a link or causal connection between the basis for theneglect petition and the circumstances that allegedly produce the child's impairment orimminent danger of impairment" (id.).
Relying on Matter of AftonC. (James C.) (17 NY3d 1 [2011]), the father argues that his status as anuntreated sex offender is insufficient to establish neglect of the children. We are notpersuaded. Rather, we agree with Family Court that the evidence submitted regarding thefacts underlying the father's convictions for abusing young children in his care issufficient to distinguish this case from Matter of Afton C. (James C.) (17 NY3dat 11; see Matter of ChristopherC. [Joshua C.], 73 AD3d 1349, 1351 [2010]; Matter of Shaun X., 300AD2d 772, 772-773 [2002]).
In addition, petitioner also introduced evidence that the father did not complete thesex offender treatment he had been ordered to undergo after his first conviction, that hedid not participate in any sex offender treatment while in prison for his second convictionand that the individual counseling he received from a minister while in prison and uponhis release did not qualify as appropriate sex offender treatment. The father did notcounter this proof with any evidence that he had completed any appropriate sex offendertreatment and, although a significant period of time has elapsed since his last conviction,the expert in sex offender risk assessment who interviewed the father ultimatelyconcluded that he should not be allowed to be with the children unsupervised. Thisopinion was based, in part, on the attitude of the mother, who testified that, although shewas aware of the convictions, she was comfortable leaving the children with thefather.
While we note the expert's acknowledgment that the father posed a minimal risk ofoffending against Lee, he nevertheless concluded that, based on the father's sexual abuseof two children similar in age to Lillian, he should not be allowed to be in the presence ofeither child without appropriate supervision. Based on the mother's failure toacknowledge the danger posed [*3]by the father, the sexoffender evaluator also concluded that she was an inappropriate supervisor absent awillingness on her part to recognize the father's conduct and receive appropriate training.In view of all of these circumstances, we find no basis to disturb Family Court'sconclusion that petitioner established, by a preponderance of the evidence, that the fatherposed an imminent danger to the children in his care (see Matter of Destiny EE. [Karen FF.], 90 AD3d 1437,1443-1444 [2011], lv dismissed 19 NY3d 856 [2012]; Matter of ChristopherC. [Joshua C.], 73 AD3d at 1351; Matter of Kole HH., 61 AD3d 1049, 1052-1053 [2009],lv dismissed 12 NY3d 898 [2009]). The father's remaining contentions have beenconsidered and determined to be without merit.
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.