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In the Matter of Afton C. (Anonymous).

May 5, 2011

IN THE MATTER OF AFTON C. (ANONYMOUS). DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES, APPELLANT; JAMES C. (ANONYMOUS), ET AL., RESPONDENTS. (AND FOUR OTHER PROCEEDINGS.)


The opinion of the court was delivered by: Ciparick, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On this appeal, 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. We agree with the Appellate Division that the evidence presented is insufficient to prove neglect.

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 (Penal Law § 130.30 [1]), 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 (former Penal Law § 230.04; L 2007, ch 74, § 5). 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 offender treatment. Father returned home, where he lived with his wife and their five children, then between the ages of four and 14.

In November 2007, the Dutchess County Department of 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.*fn1 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.*fn2

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] demonstrat[ing] an 'impaired level of parental judgment as to create a substantial risk of harm'" (quoting Matter of Shaun X, 300 AD2d 772, 772 [3d Dept 2002]). The 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" (Matter of Afton C. (James

C.), 71 AD3d 887, 888 [2d Dept 2010]). 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" (id.). 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 (see id.). We granted DSS's motion for leave to appeal from the Appellate Division order (15 NY3d 709 [2010]), 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" ...


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