In re Paige WW.

71 A.D.3d 1200, 895 N.Y.S.2d 603
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 4, 2010
StatusPublished
Cited by22 cases

This text of 71 A.D.3d 1200 (In re Paige WW.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Paige WW., 71 A.D.3d 1200, 895 N.Y.S.2d 603 (N.Y. Ct. App. 2010).

Opinion

Garry, J.

Appeals (1) from an order of the Family Court of Columbia County (Czajka, J.), entered January 16, 2009, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondents’ child to be neglected and issued an order of protection, and (2) from an order of said court, entered March 6, 2009, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10-A, to continue the placement of the subject child.

Respondent Charles XX. (hereinafter the father) had five children with his former wife. The wife also had older children from a previous relationship who did not live in her household, including respondent Tina WW. (hereinafter the mother).1 In 2002, the children of the father and the wife were removed as a result of child protective proceedings commenced in Dutchess County.2 In 2005, the Dutchess County Family Court (hereinafter the 2005 court) determined that while the children had been in the care of the father and wife, three of them had been sexually abused and neglected, and the other two had been derivatively neglected. The father subsequently surrendered his parental rights to all but one of these children, and none of them lived with him again. In 2006, the wife died and, shortly thereafter, the father and the mother began living together. Paige WW. (hereinafter the child) was born to them in October 2007.

In April 2008, petitioner commenced the current neglect proceedings, alleging, among other things, that the father had a history of sexual abuse and had not engaged in court-ordered treatment. Family Court accepted admissions of neglect from the mother and conducted a fact-finding hearing with respect to the father. Thereafter, the court entered an order adjudicating the child as neglected by both parents, and issued an order of [1202]*1202protection with respect to the father. The father now appeals from the dispositional order as well as from a subsequent permanency hearing order.

The father contends that the evidence was insufficient to support the derivative neglect determination. He was the only witness during the fact-finding hearing, and his testimony focused on the events leading to the decision and order of the 2005 court (hereinafter the 2005 decision). He denied that he had sexually abused his other children. Family Court rejected this testimony and determined, based upon the 2005 decision, that he did sexually abuse his other children. The court further found that by denying this abuse and by failing to participate in treatment ordered by the 2005 court, the father had derivatively neglected the child in this proceeding. The father contends on appeal that the determination was based on a mistaken reading of the 2005 decision, that he did not sexually abuse his other children, and, further, that the evidence of his current circumstances was insufficient to demonstrate any risk of harm to the child.

Proof of a parent’s abuse or neglect of a child “shall be admissible evidence” as to the parent’s neglect of another child (Family Ct Act § 1046 [a] [i]; see Matter of John QQ., 19 AD3d 754, 756 [2005]). Here, we find that the derivative neglect determination is supported by evidence that “ ‘demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [the father’s] care’ ” (Matter of Tiffany AA., 268 AD2d 818, 819-820 [2000], quoting Matter of Vincent M., 193 AD2d 398, 404 [1993]). The 2005 decision sustained allegations of both sexual abuse and neglect as against both parents, and Family Court relied upon that determination.3 We note that while there were allegations regarding the father’s conduct, the 2005 decision neither' clearly identified nor clearly excluded the father as a perpetrator of sexual abuse. Its discussion of the father’s conduct was limited to his abuse of alcohol, his failure to supervise the children at times when several known sex offenders who frequently associated with the family had access to them, and the adequacy of his response when the children displayed sexualized behavior. However, the 2005 court was unambiguous and explicit in its determination that the three older children were subjected to multiple acts of [1203]*1203sexual abuse and that, as a result, they suffered significant physical and emotional harm. The 2005 court further found, at minimum, that the father acquiesced in the sexual abuse of his children by permitting known pedophiles to associate with them and by failing to supervise them; the father and wife were found to have been present in other parts of the house, drinking alcohol, when some of the molestations took place. Notably, the Family Ct Act defines an “abused child,” with reference to sexual abuse, as any child under 18 whose parent “commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law” (Family Ct Act § 1012 [e] [iii] [emphasis added]). Thus, even in the absence of an unambiguous determination that the father was himself a perpetrator, “ ‘the nature of [his] direct abuse [or neglect], notably its duration, [and] the circumstances surrounding its commission . . . can be said to evidence fundamental flaws in [his] understanding of the duties of parenthood’ ” sufficient to serve as a basis for Family Court’s finding of derivative neglect (Matter of Cadejah AA., 33 AD3d 1155, 1157 [2006], quoting Matter of Amanda LL., 195 AD2d 708, 709 [1993]; see Matter of Stephiana UU., 66 AD3d 1160, 1162 [2009]; Matter of Evelyn B., 30 AD3d 913, 916 [2006], lv denied 7 NY3d 713 [2006]).

We further find that the prior determination of abuse and neglect was “sufficiently proximate in time ‘such that it can be reasonably concluded that the conditions still exist’ ” (Matter of Suzanne RR., 35 AD3d 1012, 1013 [2006], quoting Matter of Hunter YY., 18 AD3d 899, 900 [2005]). Although the acts of abuse and neglect that led to the 2005 decision took place six years or more before the current proceedings were filed, there is no “bright-line, temporal rule beyond which we will not consider older child protective determinations” (Matter of Evelyn B., 30 AD3d at 915; but see Matter of Natasha RR., 27 AD3d 788, 789 [2006]). While the evidence as to whether the conditions that attended the 2005 decision still prevailed in 2008 is sparse, the record does reveal that the father did not comply when he was ordered in 2005 to participate in sex offender programming. Not until these proceedings were filed in 2008 did he obtain the required evaluation and, at the time of the fact-finding hearing, he had just begun to participate in programming (cf. Matter of Jemila PP., 12 AD3d 964, 966 [2004]). As to the substance abuse that contributed to his prior acts of abuse and neglect, he testified that he was successfully participating in substance abuse training and had abstained since 2007 from the use of illegal drugs; however, he also testified that this participation was an involuntary condition of his parole for an unidentified offense. Moreover, the father’s failure to accept responsibility for the se[1204]*1204vere harm suffered by his other children went well beyond his denial that he had sexually abused them (see Matter of Stephiana UU., 66 AD3d at 1162).

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Bluebook (online)
71 A.D.3d 1200, 895 N.Y.S.2d 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paige-ww-nyappdiv-2010.