MatterofGiannaO. ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 4, 2014 517559
________________________________
In the Matter of GIANNA O.
and Others, Alleged to be
Neglected Children.
OTSEGO COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
DONALD P.,
Appellant,
et al.,
Respondent.
________________________________
Calendar Date: October 10, 2014
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
__________
Carol Malz, Oneonta, for appellant.
Steven Ratner, Otsego County Department of Social Services,
Cooperstown, for Otsego County Department of Social Services,
respondent.
Larisa Obolensky, Delhi, attorney for the children.
__________
Devine, J.
Appeal from two orders of the Family Court of Otsego County
(Lambert, J.), entered July 25, 2013 and August 1, 2013, which
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 10, to adjudicate the subject children to
be neglected.
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Respondent Barbara O. (hereinafter the mother) is the
mother of Gianna O. (born in 1995) and Robert O. (born in 1996),
and the mother and respondent Donald P. (hereinafter respondent)
are the parents of Gabriel P. (born in 2012). After receiving a
report indicating that respondent was a risk level II sex
offender and alleging occurrences of domestic violence and
inadequate guardianship of the children, an employee of
petitioner interviewed the mother and respondent and created a
safety plan prohibiting respondent from being with the children
without supervision. Petitioner conducted a further
investigation of the allegations and, thereafter, commenced this
neglect proceeding against the mother and respondent. Petitioner
and the mother eventually stipulated to a settlement of the
matter as it asserted claims of neglect against her. Following
the completion of fact-finding and dispositional hearings, Family
Court determined that respondent's conduct constituted neglect of
the children and ordered that respondent have no unsupervised
contact with them for one year. Respondent appeals.
Respondent argues that Family Court's finding of neglect
lacked a sound and substantial basis in the record. We disagree.
To establish neglect, petitioner must show "by a preponderance of
the evidence, that the child's physical, mental or emotional
condition has been impaired or is in imminent danger of becoming
impaired due to the failure of the parent or caretaker to
exercise a minimum degree of care" (Matter of Josephine BB.
[Rosetta BB.], 114 AD3d 1096, 1097 [2014]; see Family Ct Act §§
1012 [f]; 1046 [b] [i]; Nicholson v Scoppetta, 3 NY3d 357, 368
[2004]). Here, petitioner presented proof of an incident that
occurred a few months before Gabriel was born, in which
respondent became enraged when the mother refused to allow
respondent, who was intoxicated, to drive their vehicle and threw
the keys to the ground. In the presence of the children,
respondent and the mother had a "huge fight" and respondent
forced the mother to get on her hands and knees to retrieve the
keys. When Robert attempted to intervene, respondent forcibly
shoved him away. Additionally, Family Court heard testimony
about a subsequent incident that occurred in the hospital after
the mother had given birth to Gabriel, during which Gianna and
respondent had a verbal argument that required intervention by a
member of the hospital staff. Petitioner's employee averred that
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the older children admitted that they did not feel secure in the
home when respondent was present, and the record further reveals
that, shortly after the fight between respondent and the mother,
the older children decided to leave the residence and live with
their father. During her testimony, the mother conceded that she
and respondent had a troubled relationship and that she resorted
to requesting supervision when she and Gabriel visited respondent
while he was incarcerated.
As to respondent's status as a registered sex offender,
which designation resulted from his conviction for the second-
degree rape of a 15-year-old girl, respondent adamantly refused
to acknowledge his culpability for the crime and insisted to
Family Court that, because he had been wrongfully convicted, he
did not have to undergo any treatment. While respondent
correctly observes that his status as an untreated sex offender
does not, standing alone, create a presumption of neglect (see
Matter of Afton C. [James C.], 17 NY3d 1, 10-11 [2011]; Matter of
Hannah U. [Dennis U.], 97 AD3d 908, 909 [2012]), we find that the
evidence in the record sufficiently demonstrated that
respondent's conduct posed an imminent and substantial risk of
harm to the children (see Matter of Lillian SS. [Brian SS.], 118
AD3d 1079, 1081 [2014], lv dismissed 24 NY3d 936 [2014]; Matter
of Imena V [Dia V.], 91 AD3d 1067, 1069 [2012], lv denied 19 NY3d
807 [2012]). Therefore, Family Court's orders are affirmed.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
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ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court