In the Matter of BORYANA D. and Another, Alleged to be Neglected Children. SCHUYLER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; VICTORIA D., Appellant.
Calendar Date: November 13, 2017
J. Hoffman Jr., Albany, for appellant.
J. Getman, County Attorney, Watkins Glens (Kristin E. Hazlitt
of counsel), for respondent.
J. Fitzsimmons, Watkins Glen, attorney for the children.
Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from two orders of the Family Court of Schuyler County
(Keene, J.), entered December 1, 2015 and May 2, 2016, which,
among other things, granted petitioner's application, in
a proceeding pursuant to Family Ct Act article 10, to
adjudicate respondent's children to be neglected.
April 2014, respondent, as a single parent, adopted two
children from Bulgaria - a daughter (born in 2002) and a son
(born in 2003). Respondent permitted the children to develop
a relationship with her ex-husband. In June 2015, the son
reported to school staff his suspicion that there had been
sexual activity between the ex-husband and the daughter
during the preceding night, when both children and the
ex-husband were sleeping in the same bed while staying at his
home. On investigation, the daughter admitted to having
engaged in sexual intercourse with the ex-husband that night
and to having had a sexual relationship with him that had
begun several months previously. Petitioner then commenced
this Family Ct Act article 10 proceeding alleging that
respondent neglected both children. After a hearing, Family
Court adjudged the children to have been neglected by
respondent and, after a dispositional hearing, placed the
children in the custody of petitioner. Respondent now appeals
from the fact-finding order and the dispositional order.
sole argument on appeal is that the finding of neglect is not
supported by the evidence. "In order to adjudicate a
child neglected, the preponderance of the evidence must
establish that the child's physical, mental or emotional
condition has been or is in imminent danger of being impaired
as a result of the failure of the legal custodian to provide
the minimum degree of care (see Family Ct Act §
1012 [f] [i]). The parental behavior asserted as a basis for
neglect is measured against the behavior of a reasonable and
prudent parent faced with the same circumstances. A child can
be declared to be neglected as a result of the failure of the
parent to act when the parent knew or should have known of
circumstances which required action in order to avoid actual
or potential impairment of the child" (Matter of
Alaina E., 33 A.D.3d 1084, 1085-1086  [citations
Court properly found that respondent neglected the children.
The record contained ample evidence of circumstances that
existed prior to the reported incident of abuse that required
action by respondent to avoid actual harm to the children and
further demonstrated that respondent failed to take
appropriate action to protect the children from the risk of
such harm. Respondent was aware that her ex-husband had a
prior indicated report for child abuse that, although
ultimately reversed, was based on his admission that he had
viewed a magazine containing nude photographs while in the
company of his then-girlfriend's eight-year-old daughter.
Respondent was also aware that both children had a traumatic
past in Bulgaria, including rape of the daughter, and that,
as a result, the daughter evinced an age-inappropriate
interest in sex that she manifested by viewing pornography on
her computer and by seeking attention from adult men.
Nonetheless, respondent allowed the children to develop a
relationship with the ex-husband that included regular,
unsupervised overnight stays and age-inappropriate conduct.
In that regard, respondent learned that her ex-husband had
taken the daughter to a wine and food festival on his
motorcycle, where he let her drink wine and bought her a
bracelet with a heart charm. Two weeks before the reported
incident of abuse, the ex-husband had disclosed to respondent
that he was concerned because the daughter had become very
affectionate toward him, an observation the son had
previously shared with respondent. Notably, respondent was
also advised that the children slept in the same bed as the
ex-husband during overnight visits to his home and she
acknowledged being advised, in May 2015, that both children
had slept in the same bed as the ex-husband when he stayed
with them in her home while she attended an out-of-town
funeral. Despite having this knowledge, she allowed the
unsupervised overnight visits to continue for as many as
three nights per week. Respondent's limited efforts to
curtail the daughter's use of a shared computer to view
pornography and to obtain counseling for the children were
patently insufficient to address the extensive risks, and a
reasonably prudent parent would not have permitted the
ex-husband to have continued, unsupervised access to the
children under the circumstances present in this case.
Accordingly, we conclude that Family Court properly found the
children to be neglected (see Matter of Zackery D. [Tosha
E.], 129 A.D.3d 1121, 1123 ; Matter of Penny
Y. [Roxanne Z.], 129 A.D.3d 1117, 1118-1119 ;
Matter of Mary MM., 38 A.D.3d 956, 957 ;
Matter of Alaina E., 33 A.D.3d at 1087).
P.J., Clark, Mulvey and Aarons, JJ., concur.
that the appeal from the order entered December 1, 2015 is
dismissed, without costs.
that the order entered May 2, 2016 is ...