The Appellate Division reversed the Family Court order, denied the petitions, and dismissed the proceedings, holding that “the mere fact that a designated sex offender resides in the home is not sufficient to establish neglect absent a showing of actual danger to the subject children” The court added that although Family Court could properly consider whether father’s testimony was evasive and that he invoked his Fifth Amendment right, “the evidence was insufficient to establish that the father posed an imminent danger to the children”. Because DSS failed to prove that father’s presence endangered the children, the court found that, by extension, mother did not neglect them by allowing him to reside in the home.
The Court granted DSS’s motion for leave to appeal from the Appellate Division order, and now affirm.
Under section 1012 (f) of the Family Court Act, a neglected child is defined as, inter alia:
“a child less than eighteen years of age(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof”
The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence. First, there must be “proof of actual physical, emotional, or mental impairment to the child”. In order for danger to be “imminent,” it must be “near or impending, not merely possible”. Further, there must be a “causal connection between the basis for the neglect petition and the circumstances that allegedly produce the… imminent danger of impairment”. This requirement is intended to “focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior”
Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care. This is an objective test that asks whether “a reasonable and prudent parent would have so acted, or failed to act, under the circumstances”. A parent may deviate from this standard by “unreasonably inflicting a substantial risk” of harm to the child. Critically, however, “the statutory test is minimum degree of care — not maximum, not best, not ideal — and the failure must be actual, not threatened”
DSS and the attorney for the eldest child argue that because father is an untreated, level three sex offender whose crimes involved minors, and because he failed to demonstrate sufficient introspection or remorse, the children were properly adjudicated neglected. DSS also maintains that mother neglected the children by allowing him to return home. In response, father and the attorney for the other four children argue that DSS failed to prove that either parent neglected their child.
To the extent that DSS is arguing that father’s status as a level three sex offender convicted of sex crimes involving minors is sufficient to establish a presumption that he poses a danger to his children in the absence of treatment, we disagree.
In a case, the Court rejected use of a presumption of neglect where a parent had allowed a child to witness domestic violence, holding that this bare allegation did not meet the Family Court Act’s requirements. The Court emphasized that a finding of neglect was only permissible where a preponderance of evidence established actual or imminent harm to the subject children as a result of the parent’s failure to exercise a minimal degree of care. For similar reasons, the Court now reject any presumption that an untreated sex offender residing with his or her children is a neglectful parent. Even where, as here, the criminal offender’s crimes involve victims younger than 18, that alone does not demonstrate that his actions “inflicted harm, or a substantial risk thereof” to his children, or that the children’s “physical, mental or emotional condition was in imminent danger of becoming impaired”
DSS argues that because father is a level three sex offender under SORA, and has therefore been deemed particularly likely to reoffend, he is a danger to the subject children. SORA assessment was not designed, however, to ascertain whether the offender has met the Family Court Act’s parental neglect standard.
Here, even assuming that a level three SORA assessment is evidence of likely recidivism, DSS failed to prove that father’s crimes endangered his children. It follows that the likelihood of a repeat offense — which is all SORA purports to measure — is not directly relevant to whether the children are in imminent danger. While DSS could have introduced evidence from the plea and SORA proceedings, it did not do so, and the SORA designation alone is not dispositive.
No doubt there are circumstances in which the facts underlying a sex offense are sufficient to prove neglect. Where, for example, sex offenders are convicted of abusing young relatives or other children in their care, their crimes may be evidence enough. The Court’s conclusion here might also be different if respondent had refused sex offender treatment after being directed to participate in it, or if other evidence showed that such treatment was necessary. In all cases, however, petitioner must meet its statutory burden. It failed to do so here.
DSS proved only father’s conviction; that he was adjudicated a SORA level three sex offender; that he never sought sex offender treatment; and that he was residing at home. This evidence, without more, does not demonstrate that father breached a minimum duty of parental care and poses a near or impending harm to his children. That he declined to discuss the circumstances of his conviction and, in Family Court’s view, lacked candor or insight into his behavior does not fill the evidentiary gap.
Because DSS failed to prove by a preponderance of the evidence that father posed an imminent danger to his children, it necessarily failed to prove that mother neglected the children by allowing father to return home.
Accordingly, the order of the Appellate Division should be affirmed, with costs.