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The Appellate Division reversed…. cont

Family Court concluded that both parents neglected their children. It found that father’s behavior created a substantial risk of harm to the children because he is a convicted level three sex offender, and therefore “pose[s] a risk of harm to the public at large.” His testimony, in the court’s view, demonstrated a “lack of candor, a shortage of insight into his own behavior and obvious attempts to avoid responsibility for the illegal acts involving minors.” Moreover, the court saw father’s “failure to address any issues in counseling [as] demonstrating an ‘impaired level of parental judgment as to create a substantial risk of harm’ ”. The Criminal court’s finding that mother had neglected the children was based on her “failure to inquire into the details of the father’s illegal conduct and her decision to gauge the children’s safety by her knowledge of the father.” Both parents appealed the finding of neglect.

The Appellate Division reversed the Family Court order, denied the petitions, and dismissed the proceedings, holding that “[t]he 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.

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 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 [neglect proceedings] 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 children.

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, the Court disagreed.

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.

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