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The Appellate Division reversed the Family Court order


In this appealed Criminal case, the court we consider whether there is sufficient evidence to support a finding that the subject children are neglected pursuant to article 10 of the Family Court Act.

A New York Criminal attorney said that In October 2007, respondent father pleaded guilty to rape in the second degree, engaging in sexual intercourse with a person less than 15 years of age, and patronizing a prostitute in the third degree, which at the time of his conviction was defined as patronizing a prostitute under 17 years of age. He was sentenced to one year imprisonment, and was released on time served. The court adjudicated father a level three sex offender under the Sex Offender Registration Act (SORA), but he was never ordered to attend any sex crimes offender treatment. Father returned home, where he lived with his wife and their five children, then between the ages of 4 and 14.

Thereafter, in 2007, the Dutchess County Social Services (DSS) filed neglect petitions pursuant to Family Court Act article 10 against both parents. As relevant here, the petitions alleged that father neglected the children because he was an “untreated” sex offender whose crimes involved victims between 13 and 15 years old. Mother allegedly “failed to protect the children” from father. DSS sought to have the children adjudicated neglected, both parents ordered into a sex offender relapse intervention program, and a temporary order of protection issued against father on the children’s behalf. Child Pornography was not charged.

At the fact-finding hearing, the DSS caseworker who authored the neglect petitions testified that he began investigating the family after receiving a report from the SORA registry that father was an untreated level three sex offender. He did not receive any documentation from the New York County District Attorney’s office regarding father’s conviction, and had not interviewed any of the victims in that case. The caseworker acknowledged that he had no evidence that father was sexually inappropriate with any of the subject children.

Father testified that he “pled guilty to whatever his lawyer told him to plead guilty to,” and recalled that, during his plea colloquy, he had affirmed that he committed the crimes. He explained that the indictment had alleged that he patronized a prostitute “between 2000 and 2004,” when she was 15 to 19, but testified that he first met the victim in 2003, when she was 18. Father claimed that when he was asked during his plea colloquy “whether [he] engaged in sexual acts with her between 2000 and 2004[he] said yes meaning … when she was 18 or 19.” With respect to the second degree rape conviction, father refused to comment on whether he had sexual relations with someone below the age of consent, exercising his Fifth Amendment right. Family Court permitted him not to answer, but drew a “negative inference … that the victim was under the age of consent.” Father further testified that, other than the events resulting in his conviction, he had never had “intercourse with an under age woman.” He acknowledged that he was a level three sex offender under SORA, and had never received sex offender treatment.

Mother testified that she had “no personal knowledge” of father’s crimes, beyond knowing what he had pleaded to, and had not inquired into the details. She did not think father was a risk to their children because “he has never engaged in any behavior that would create a risk to his children.” Other witnesses included the eldest child and a school resource officer. DSS proffered father’s certificate of conviction, but no additional evidence was submitted regarding the facts underlying the conviction.

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.

A parent should protect its children. They must see to it that their children are free from any harm or danger. But if said parent is the reason for the danger by means of sexual abuse, said parent must be punished accordingly. Here in Stephen Bilkis and Associates, we have New York Sexual Abuse attorneys who will make these parents answerable to their acts. For other concerns, we also have New York Criminal lawyers who are always ready to answer your queries.

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