Matter of Warren RR. , 39 N.Y.S.3d 267 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 520817
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________________________________
In the Matter of WARREN RR.,
Alleged to be a Neglected
Child.
ST. LAWRENCE COUNTY DEPARTMENT
OF SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
BRITTANY Q. et al.,
Appellants.
________________________________
Calendar Date: September 12, 2016
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.
__________
Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for Brittany Q., appellant.
Michelle I. Rosien, Philmont, for Christopher RR.,
appellant.
David D. Willer, St. Lawrence County Department of Social
Services, Canton, for respondent.
Christopher Obstarczyk, Latham, attorney for the child.
__________
Egan Jr., J.P.
Appeals from two orders of the Family Court of St. Lawrence
County (Champagne, J.), entered March 3, 2015 and July 30, 2015,
which, among other things, granted petitioner's application, in a
proceeding pursuant to Family Ct Act article 10, to adjudicate
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respondents' child to be neglected.
Respondents, Brittany Q. (hereinafter the mother) and
Christopher RR. (hereinafter the father), are the unmarried
parents of a son (born in 2014) (hereinafter the subject child).
The father, who is a risk level three sex offender, has eight
other children with five other women and an extensive history
involving both the criminal justice system and petitioner. In
2003, the father pleaded guilty to two counts of rape in the
second degree and two counts of rape in the third degree –
stemming from incidents wherein he engaged in sexual intercourse
and fathered children with two teenage girls – and was sentenced
to a prison term of 1 to 5 years. Although the father was
granted a conditional release, he twice violated the terms
thereof and was returned to prison, where he remained until some
point in 2008. According to the father, each of his subsequent
attempts to have his risk level classification reduced have been
unsuccessful.
Shortly before his incarceration in 2003, the father was
found to have neglected three of his other children (based upon
incidents of domestic violence with his then wife) and was
directed to engage in preventative services, including substance
abuse counseling. According to the father, he voluntarily
surrendered his parental rights to these three children in
October 2010. In the interim, by order entered May 15, 2008, the
father was found to have permanently neglected one of his other
sons and received a suspended judgment subject to various terms
and conditions – including that he undergo an alcohol and
substance abuse evaluation and cooperate with any recommended
treatment. Upon the father's failure to, among other things,
participate in alcohol and substance abuse services, the
suspended judgment was revoked and the father's parental rights
to this child were terminated. Thereafter, by order entered June
8, 2011, the father was found to have permanently neglected one
of his daughters and, based upon, among other things, the
father's failure to timely complete recommended services and his
continued use of drugs and alcohol, his parental rights to this
child were terminated. Finally, by order entered May 13, 2014,
the father was found to have permanently neglected another son
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and, as he failed to, among other things, complete recommended
services, his parental rights to this child also were terminated.
Shortly thereafter, petitioner commenced this proceeding
against the father and the mother alleging that the mother
neglected the subject child by, among other things, sharing a
residence with a convicted sex offender and that the father,
based upon his prior convictions and extensive involvement with
petitioner relative to his other children, derivatively neglected
the subject child. During the pendency of this proceeding, the
child remained in the mother's custody, and a temporary order of
protection precluding the father from having any unsupervised
contact with the child was issued. At the conclusion of the
fact-finding hearing that followed, Family Court granted
petitioner's application and, by order entered March 3, 2015,
adjudicated the subject child to be neglected. Following a
dispositional hearing, Family Court, by order entered July 30,
2015, continued the subject child's placement with the mother and
placed both parents under the supervision of petitioner for a
period of 12 months.1 These appeals ensued.2
We begin with the father's assertion that Family Court
erred in finding that he derivatively neglected the subject
child. "Derivative neglect is established where the evidence
demonstrates an impairment of parental judgment to the point that
it creates a substantial risk of harm for any child left in that
1
Even assuming that respondents no longer are under the
supervision of petitioner and that the corresponding orders of
protection have expired, these appeals are not moot as a finding
of neglect has enduring consequences that may adversely affect
respondents in future proceedings (see Matter of Shay-Nah FF.
[Theresa GG.], 106 AD3d 1398, 1399 n 1 [2013], lv denied 21 NY3d
863 [2013]).
2
The mother appealed from the fact-finding order, both
parents appealed from the dispositional order and this Court
granted the mother's subsequent motion to consolidate the
appeals.
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parent's care, and the prior neglect determination is
sufficiently proximate in time to reasonably conclude that the
problematic conditions continue to exist" (Matter of Xiomara D.
[Madelyn D.], 96 AD3d 1239, 1240 [2012] [internal quotation marks
and citations omitted]; accord Matter of Neveah AA. [Alia CC.],
124 AD3d 938, 939 [2015]; see Matter of Ilonni I. [Benjamin K.],
119 AD3d 997, 997 [2014], lv denied 24 NY3d 914 [2015]). The
crux of the father's argument upon appeal is twofold – first,
that the 2003 neglect adjudication is not sufficiently proximate
to the instant proceeding to constitute proof of neglect within
the meaning of Family Ct Act § 1046 (a) (i) and, second, that the
2008, 2011 and 2014 permanent neglect adjudications similarly
cannot be considered as proof of neglect because such
determinations were based upon the father's failure to plan
rather than what he categorizes as affirmative acts of neglect.
Neither of these arguments has merit.
While the 2003 neglect adjudication is somewhat attenuated,
this Court consistently has held that "there is no bright-line,
temporal rule beyond which we will not consider older child
protective determinations" (Matter of Iryanna I. [Benjamin K.],
132 AD3d 1096, 1097 [2015] [internal quotation marks and
citations omitted]; accord Matter of Sumaria D. [Madelyn D.], 121
AD3d 1203, 1204 [2014]; Matter of Paige WW. [Charles XX.], 71
AD3d 1200, 1203 [2010]; see Matter of Evelyn B., 30 AD3d 913, 915
[2006], lv denied 7 NY3d 713 [2006]). Similarly, evidence that a
parent permanently neglected one child has long been considered
in the context of determining whether such parent derivatively
neglected another child in his or her care (see Matter of
Alexander Z. [Melissa Z.], 129 AD3d 1160, 1163 [2015], lv denied
25 NY3d 914 [2015]; Matter of Mikel B. [Carlos B.], 115 AD3d
1348, 1349 [2014]; Matter of Michael N. [Jason M.], 79 AD3d 1165,
1167-1168 [2010]; Matter of Krystal J., 267 AD2d 1097, 1098
[1999]) – particularly where, as here, the underlying
adjudications reflect both a longstanding pattern of neglect and,
more to the point, a longstanding inability and/or unwillingness
to address serious substance abuse issues.
As evidenced by the documentary evidence in the record, the
father repeatedly was directed to undergo substance abuse
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counseling and treatment. Despite making some progress in this
area over the years, the father frequently tested positive for
marihuana (including on the date of the dispositional hearing) –
purportedly due to the stress occasioned by petitioner's
involvement in his life. Moreover, while the father's status as
a risk level three sex offender admittedly "does not constitute
per se neglect or otherwise create a presumption of neglect"
(Matter of Hannah U. [Dennis U.], 97 AD3d 908, 909 [2012]), it
nonetheless remains an important factor to consider in
ascertaining whether the father's understanding of his parental
duties is sufficiently flawed so as to place any child in his
care at a substantial risk of harm. Notably, although the father
acknowledged his conduct, testified that he completed offender
treatment and indicated that his last sex offense was committed
in 2002, his explanation for his sexual encounters with the
teenage girls at issue – namely, that he was a 20-year-old man in
the ninth grade and that these were simply the girls in his
"social circle" – evidences a lack of insight as to the magnitude
of his offenses. Given the previous finding of neglect, the
prior terminations of the father's parental rights, the father's
failure to address his pervasive substance abuse issues and his
status as a risk level three sex offender (see Matter of Landon
U. [Amanda U.], 132 AD3d 1081, 1083-1084 [2015]; Matter of
Alexander Z. [Melissa Z.], 129 AD3d at 1163-1164; Matter of
Sumaria D. [Madelyn D.], 121 AD3d at 1205; Matter of Ilonni I.
[Benjamin K.], 119 AD3d at 998; Matter of Michael N. [Jason M.],
79 AD3d at 1167-1168; Matter of Tradale CC., 52 AD3d 900, 902
[2008]; Matter of Evelyn B., 30 AD3d at 915), and taking into
consideration both the vulnerable age of the subject child, who
was not even four months old at the commencement of this
proceeding, and the overarching purpose of Family Ct Act article
10 (see Matter of Paige WW. [Charles XX.], 71 AD3d at 1204), we
find that Family Court's determination that the father
derivatively neglected the subject child is supported by a
preponderance of the evidence and, as such, it will not be
disturbed.
We reach a similar conclusion with respect to Family
Court's finding that the mother neglected the subject child.
"The case law makes clear that a child may be adjudicated to be
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neglected within the meaning of Family Ct Act § 1012 (f) (i) when
a parent knew or should have known of circumstances which
required action in order to avoid actual or potential impairment
of the child and failed to act accordingly. Determining whether
a parent exercised the requisite minimum degree of care is
evaluated by asking whether, under the circumstances, a
reasonable and prudent parent would have so acted" (Matter of
Mary YY. [Albert YY.], 108 AD3d 803, 804 [2013] [internal
quotation marks, brackets and citations omitted], lv denied 21
NY3d 865 [2013]; see Matter of Marcus JJ. [Robin JJ.], 135 AD3d
1002, 1004 [2016]). In this regard, "a finding of neglect does
not require actual injury or impairment, but only an imminent
threat that such injury or impairment may result" (Matter of
Dylynn V. [Bradley W.], 136 AD3d 1160, 1162 [2016] [internal
quotation marks and citations omitted]).
The mother readily admitted that she was fully familiar
with the father's criminal convictions and prior history with
petitioner – including the fact that he was a registered sex
offender and had lost his parental rights to most of his other
children. After speaking with whom she reluctantly characterized
as one of the father's victims, the mother was convinced that the
father never would harm their child and, therefore, ensured that
he never was left alone with the child solely in an effort to
ward off interference from petitioner. Although the mother and
the father each testified that they resided in separate
apartments within the same building, sharing only the common
kitchen and bathroom, Family Court deemed such testimony to be
"absurd" – crediting instead the testimony offered by one of
petitioner's caseworkers, who indicated that the area where the
father allegedly slept "was full of clutter," did not contain a
bed and did not "look like anybody lived there." Based upon such
testimony, Family Court essentially concluded that the mother and
the father were in fact living together and that, in so doing,
the mother had demonstrated a willingness to put her interests
ahead of her child's welfare. Having reviewed the record as a
whole, and taking into consideration the father's documented
history and ongoing substance abuse issues, we have no quarrel
with Family Court's conclusions in this regard, nor do we discern
any basis upon which to disturb its finding that the mother
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neglected the subject child by allowing him to reside in the same
household with the father (see e.g. Matter of Mary MM., 38 AD3d
956, 957 [2007]). The parties' remaining contentions, to the
extent not specifically addressed, have been examined and found
to be lacking in merit.
Lynch, Devine, Clark and Mulvey, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court