Matter of B.D.

[*1] Matter of B.D. 2012 NY Slip Op 51397(U) Decided on July 10, 2012 Family Court, Bronx County Sherman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2012
Family Court, Bronx County

In the Matters of B.D. I.D. Children Under the Age of Eighteen Years Alleged to be Abused and Neglected by J.D., Respondent.



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Counsel appearing in this matter are:

The Bronx Defenders - Family Defense Practice (Scott Constantine, Esq., of counsel), for Respondent, Bronx, New York 10451. Telephone: (718) 838-7878.

Sam Dulberg, Esq., Attorney for the Child I.D., Bronx, New York 10451. Telephone: (718) 681-5400.

Ava G. Gutfriend, Esq., Attorney for the Child B.D, Great Neck, New York 11020.

Telephone: (516) 946-9224.

Michael Cardozo, Corporation Counsel of the City of New York, by Alan W. Sputz, Special Assistant Corporation Counsel, Administration for Children's Services, Bronx, New York (Angela De La Cruz, Esq., of counsel) for Petitioner. Telephone: (718) 590-5438.

Carol R. Sherman, J.

Two petitions were filed by the Administration for Children's Services (ACS) in May 2010 on behalf of three-year-old child, B.D., and five-year-old I.D., daughters of Respondent. The petition on behalf of I.D. also named the child's mother, C. L., as co-respondent, and the [*2]petition on behalf of B.D. named her mother, B.P., as co-respondent.[FN1]

The allegations in the petitions as to both I.D. and B.D. are identical. The petitions allege that both children are less than eighteen years of age and, their father, Respondent, has sexually abused them, as defined in Family Court Act § 1012 (e) (iii), and has impaired their physical, mental or emotional conditions, or placed them in imminent danger of such impairment, as a result of his failure to exercise a minimum degree of care in providing each of them with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the court within the purview of the Family Court Act § 1012 (f) (i) (B). The allegations, in relevant part, are as follows:

"J. D. committed or allowed to be committed a sex offense against

such child as defined in Article 130 of the Penal Law, specifically

sections 130.65, 130.30, and 130.75, AND, . . .

1. The respondent father committed sex offenses against

children under the age of the eighteen, in that:

a. On 2/13/01, the respondent father pled guilty to endangering

the welfare of a child (Penal Law 260.10), incest (Penal Law 255.25),

rape in the second degree (Penal Law 130.30), and course of sexual

conduct against a child in the first degree (Penal Law 130.75).

Upon information and belief, the respondent father was sentenced to

seven years in prison as a result.

b. On 4/26/10, the respondent father admitted to this ACS caseworker that he was charged with statutory rape in the second degree and that he was found guilty of that in 2001. He stated that he spent six years in prison as a result. He further stated that he was convicted based upon allegations that he raped his half-sisters. Upon information and belief, his half-sisters were seven and thirteen years old at the time. The respondent father further admitted that he is a level three sex offender.

c. On 4/23/10, an Ithaca social services worker reported to the state central register that the respondent father sexually abused the child D.T. in January, 2010. It was further reported that D.T.'s mother walked into the room while the respondent father was sexually abusing D.T. and that the respondent father then physically assaulted D.T.'s mother in D.T.'s presence.

d. On 4/27/10, twelve-year-old D.T. reported to an Ithaca social worker that she had been "touched" by the respondent on at least three occasions. The respondent father was arrested on 5/3/10

and charged with sexual abuse in the first degree. On 5/7/10, the respondent father reported that it is possible that D.T. is his daughter."

The fact finding hearing was commenced January 24, 2011 and was completed on March 23, 2012. ACS called two witnesses. A non-subject child, D.T., testified via two way circuit video from a residential treatment center in Syracuse, New York. The ACS Caseworker also testified. Respondent testified on his own behalf.

The court admitted evidence as follows:

Petitioner's Exhibit 1 -Oral Report Transmittal (ORT) of Suspected Child

Abuse and Maltreatment dated April 27, 2010.

Petitioner's Exhibit 2 -Certificate of Disposition - People of the State of New

York v J. D., Disposition No. 51802, conviction by plea

July 25, 2001, sentenced November 26, 2001.

Petitioner's Exhibit 3-New York State Criminal JusticeServices, Sex Offender Details Page, lists J. D. as a level three sex offender and states he was arrested on February 3, 2001 and was convicted of rape in the second degree and his victims were females seven years and fourteen years.

Respondent's Exhibit A -Release of information to ACS signed by J. D.

dated May 17, 2010.

Respondent's Exhibit B -Parole Board Release, Decision Notice (conditions of

parole) dated May 26, 2005.

PETITIONER'S CASE

D.T., Non-Subject Child

D.T. was thirteen years old at the time of her testimony on January 24, 2011. She testified that Respondent is the biological father of two of her five siblings. She stated that she lived with him, her mother and her siblings for approximately two years in Brooklyn. She last lived with him about two to three years ago when she was nine and ten years old. D.T. stated that when she was ten years old, Respondent came into her bedroom in her mother's home in Brooklyn on two occasions and touched her breasts. She was on the top bunk of bunk beds and some of her siblings were sleeping in the bedroom with her. She testified that when she was nine years old, she was at Respondent's home in the Bronx and he came into the bed in which she was sleeping and put his penis on her buttocks. She did not see his penis but she felt it. She testified that her siblings were in the bed with her and Respondent when this alleged incident occurred. She said her mother was not in the home at that time. D.T. said she was wearing clothes and Respondent was wearing boxer shorts. D.T. testified she did not tell anyone about any of the incidents until two years after they occurred when she told a school counselor. She said this was because she was afraid of Respondent because she had seen him hit her mother and her siblings. D.T. also testified that Respondent never threatened to hit her and she was not afraid of him. She said she tried to contact him through the computer to inform him that she and her siblings had been [*3]removed from her mother's care.

ACS Caseworker

The ACS Caseworker testified that Respondent was the biological father of the subject children. Respondent told the Caseworker that he had been convicted in 2001 of rape in the second degree and was incarcerated for six years and was on parole for two years. He was released in 2005 and completed parole in 2007. The Caseworker testified that, according to Respondent, the victims were his two sisters ages seven and nine. Respondent admitted that he was registered as a level three sex offender. Respondent informed the Caseworker that he completed a sex offender program while incarcerated and saw a psychiatrist twice while he was on parole. The Caseworker claimed he never received any proof from Respondent that he completed a sex offender program in prison. However, the Caseworker stated Respondent signed the necessary consent forms for him to obtain information about his participation in and completion of a sex offender program. The Caseworker admitted he never made any inquiries of Respondent's Parole Officer, the sex offender program itself or the Department of Corrections to confirm whether Respondent completed the program. The Caseworker admitted he did not interview anyone other than D.T. in relation to her allegations. He did not speak with her mother or the other children who, she stated, were in the home at the time of the alleged incidents. The Caseworker admitted that at the time he filed this petition, there was no legal restriction prohibiting Respondent from having contact with children.

ACS did not present any evidence as to any mistreatment of I.D. or B.D. by Respondent.

RESPONDENT'S CASE

Respondent Father J.D

Respondent testified and admitted that he was convicted of rape of two of his half-sisters, ages nine and fourteen. Respondent admitted that his 2001 rape conviction was the result of his having rubbed his then nine-year-old sister's buttocks and vagina and his having sexual intercourse with his then 14 year old sister on approximately five occasions. He said that at the time he believed his younger sisters were consenting to the sexual contact but he now realized they were not consenting.

Respondent said he was 22 years old at the time of his arrest. He pled guilty to rape in the second degree and was incarcerated for about six years. Respondent stated that while incarcerated he completed a six month sex offender program at Gowanda Correctional Facility and that the sex offender program taught him to cope with his fears and anger and understand his triggers and stressors. Respondent said he learned to seek help and remove himself from situations in which he felt any inclination to deviant behavior. Respondent stated he completed parole on January 6, 2007 and complied with all parole requirements as well as the requirements of the sex offender registry. He said he saw a therapist four times while on parole. He testified he had not attended a sex offender program since his release and was not required to do so. Respondent testified that he was not prohibited from living with children.

Respondent testified he was the father of two of D.T.'s siblings. He said he was released from prison in 2005 and lived with D.T.'s mother and her children for about two years commencing in 2006. D.T. was about eight years old at the time. Respondent denied that he was ever alone with D.T. and that he ever touched her inappropriately.

Legal Analysis[*4]Petitioner ACS asks that the court, pursuant to Family Court Act § 1012 (e) (iii) and§ 1012 (f) (i) (B), find that the subject children are derivatively neglected or abused children based on Respondent's 2001 conviction of rape in the second degree of his two half-sisters, then ages fourteen and seven years,[FN2] his registration as a level three sex offender, and the testimony of non-subject child D.T. who alleged that Respondent committed sex offenses against her around 2006-2008. The Attorney for the Child I.D. joins in ACS's application. Respondent argues that the court must dismiss the instant petitions based on ACS's failure to establish derivative abuse or neglect of the two subject children or to present evidence to show that Respondent has harmed the children or placed them in substantial risk of harm. Further, Respondent asserts that the testimony of the thirteen-year-old child D.T. as to his alleged sexual touching of her was not credible and could not be used as a predicate offense for a finding of derivative child abuse or neglect.

The court's authority to enter derivative findings is found in Family Court Act § 1046 (a) (i), which provides that "proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent." Section 1046 (a) (i) authorizes the family court to extend " its protective cloak around [a] child' " before injury occurs (Matter of Cruz, 121 AD2d 901, 903 [1st Dept 1986] quoting Matter of Anthony, 81 Misc 2d 342, 345 [Fam Ct, New York County 1975]). This evidentiary rule recognizes "when there is a finding that one child is abused, as Christopher certainly was here, experience shows that there is a substantial risk of future abuse to the other children" (Matter of James P., 137 AD2d 461, 464 [1st Dept 1988] holding that the death of 19 month old infant Christopher due to non-accidental scalding burns constituted child abuse by the respondent mother and rendered his five-year-old surviving sibling, who had not suffered any injuries, a derivatively abused child).

The courts have sustained derivative findings based on predicate offenses by respondents against biological children, legally-related children and non-related children (Matter of Rebecca FF. [David FF.], 81 AD3d 1119 [3d Dept 2011] finding respondent's commission of sexual abuse against adopted stepdaughter [born in 1988], who lived with him, a basis for derivative neglect finding as to his birth daughters [born in 1998 and 2001]; Matter of Anthony Y. [Kelly AA.-Paul AA.], 72 AD3d 1419 [3d Dept 2010] grandfather's conviction by guilty plea of rape in the second degree of his 14-year-old daughter served as predicate offense in finding derivative neglect of his grandchildren; Matter of Ian H., 42 AD3d 701, 704 [3d Dept 2007] respondent sexually abused female children in a day care center based in his home, which formed a predicate offense for a derivative neglect finding as to his twin sons, one of whom was in the home when respondent sexually abused the other children; Matter of Sheena, 27 AD3d 1128 [4th Dept 2006], mod 7 NY3d 781 [2007] appellate court upheld a derivative neglect finding as to the sons of respondent based on his sexual abuse of his 16-year-old sister-in-law, who resided with him for four months and for whose care he was legally responsible). Thus, derivative findings of child abuse and neglect are powerful tools and the due process rights of parents and children require an [*5]individualized determination of the actual harm or imminent danger of harm that the prior offensive conduct imposes for the respondent's children or other children currently in his care (see Matter of Afton C. [James C.], 17 NY3d 1, 9 [2011]; Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]).

The courts have developed the following framework for analyzing and determining whether a derivative finding is warranted: 1) a predicate offense of the abuse or neglect of a child is established; 2) the offense "was not remote in time"; 3) the prior offense was "serious or involved a course of abusive or neglectful behavior"; and 4) "the conduct demonstrated a fundamental defect in respondent's understanding of the duties and obligations of parenthood" (Matter of Department of Social Servs. v Manual S., 148 Misc 2d 988, 995 [Fam Ct, Dutchess County 1990] [citations omitted]). In determining whether deficient conditions still exist, the court must consider "whether sufficient positive change in the parents' behavior has occurred" (Matter of Kadiatou B., 52 AD3d 388, 389 [1st Dept 2008], lv denied 12 NY3d 701 [2009] citing Matter of Kimberly H., 242 AD2d 35, 39 [1st Dept 1998] holding that both the respondent mother's engagement in services and a fact-finding determination as to the safety risk she posed to her children were necessary to show that she "has successfully overcome her prior inclinations and behavior patterns [use of excessive corporal punishment], despite what may be the best of intentions").

In cases alleging derivative abuse based on a predicate sex offense, the statute requires the court to find first that the respondent "committed (or knowingly allowed to be committed) a felony sex offense" (Matter of Marino S., 100 NY2d 361, 375 [2003] respondent's rape of eight year old child of his paramour formed predicate offense for derivative finding of severe abuse as to his non-injured biological child). "The statute does not specify the person against whom the felony sex offense must have been committed" (id.). Moreover, for the purpose of establishing a predicate offense, the statute does not require that the respondent be a parent or other person responsible for the care of the first child victim (Matter of Kole HH., 61 AD3d 1049, 1053 [3d Dept 2009], lv dismissed 12 NY3d 898 [2009] holding that respondent's victimization of nine-year-old daughter of maternal cousin, for whom he was not legally responsible, still provided a "legal basis for a finding of derivative neglect of his own two children," reversing family court's dismissal of the derivative neglect petition). The petitioner has the burden of proof and must establish the elements to support a derivative finding by a preponderance of "only competent, material and relevant evidence" (Family Court Act § 1046 [b] [iii]; Matter of Tammie Z., 66 NY2d 1 [1985]).

This court does not find by a preponderance of the evidence that the testimony of the non-subject child D.T. established acts of sexual abuse by Respondent. The child was vague as to the times and circumstances of the three alleged incidents. She testified that her siblings were in the rooms with her when all three incidents occurred, but none of them awoke. Specifically as to the incident in 2010, she stated that four siblings were asleep in one bed with her, that they changed positions during the night, and that Respondent put his penis on her buttocks. She stated, however, that none of her siblings awoke or witnessed the alleged molestation and that she did not cry out. The court finds this description implausible and incredible. Further, the ACS Caseworker failed to interview or make any attempt to interview any of D.T.'s siblings or her mother to investigate or confirm the allegations. Nor did the Caseworker present any evidence [*6]that a Family Court or Criminal Court action had been brought against Respondent based on her allegations. D.T. stated she did not report these alleged events for two years because she feared Respondent. However, she also testified she was not afraid of him, he had never threatened her and she had not had contact with him for about two years. Accordingly, the court finds that the testimony of the non-subject child D.T. is not sufficient to establish by a preponderance of the evidence that Respondent committed an act of sexual abuse against her. The court also finds that the testimony of the ACS Caseworker to be inaccurate as to many facts to which he initially testified nor was his investigation thorough as to D.T.'s allegations of Respondent's sexual abuse.ACS has proven by a preponderance of the evidence, and Respondent has admitted to, his 2001 conviction for felony sex offenses committed against his minor half-sisters, offenses which constitute acts of abuse defined in Family Court Act § 1012 (e) ( iii ) and establish a predicate offense of child abuse (see Matter of Ajay P., 60 AD3d 681, 683 [2d Dept 2009]). To sustain a derivative finding based on the 2001 conviction, the predicate offense must be analyzed first as to its "time proximity" to the birth of the subject children and the initiation of the instant proceedings (Matter of Kadiatou B., 52 AD3d at 389). The court also must analyze relevant time frames and the current circumstances of Respondent to determine whether the conditions that led to the 2001 conviction still exist (Matter of Baby Girl S., 174 Misc 2d 682, 687 [Fam Ct, Bronx County 1997]). The relevant time frames in this matter include Respondent's 2001 conviction, his release from prison in 2005, and his completion of parole conditions in 2007. The child B.D. was born in 2009 and I.D. in 2007. The court finds that the egregious nature of the crimes that formed the basis for Respondent's conviction in 2001, the closeness in time between Respondent's release from prison and the birth of his daughters, and the initiation of these proceedings in 2010, are sufficient to support a finding of "time proximity" (see Matter of Ahmad H., 46 AD3d 1357 [4th Dept 2007], lv denied 12 NY3d 715 [2009] reversing family court and finding that a 17 year period between the prior conviction for sexual offenses and the birth of the subject children was not remote in time and may form a proper basis for the adjudication of the current charges of derivative neglect). However, the evidence that establishes a predicate offense does not by itself establish a prima facie case of derivative neglect or abuse.

The dispositive question remains — whether the defective conditions that led to Respondent's sexual abuse and rape of his minor half-sisters and his designation as a level three sex offender continue to exist to the extent that " the nature of the direct abuse [or neglect,] notably its duration, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent's understanding of the duties of parenthood' " are sufficient to serve as a basis for this court's finding of derivative abuse and/or neglect (Matter of Cadejah AA., 33 AD3d 1155, 1157 [3d Dept 2006] quoting Matter of Amanda LL., 195 AD2d708, 709 [3d Dept 1993] citing Matter of Evelyn B., 30 AD3d 913, 914-915 [3d Dept 2006]). A finding of derivative neglect is warranted where the evidence establishes that "[t]he abuse by respondent . . . demonstrates such an impaired level of parental judgment as to create substantial risk of harm for any child in [his] care' " (Matter of Sheena D., 27 AD3d 1128, 1128 [4th Dept 2006], mod 7 NY3d 781 [2007], quoting Matter of Daniella HH. 236 AD2d 715, 716 [3d Dept 1997]). Further, "[s]uch a finding is justified where [the] abuse or neglect was repeated, . . . was perpetrated on multiple victims or was accompanied by evidence that other children were nearby when the abuse occurred' " (Matter of Ian H., 42 AD3d at 704, quoting [*7]Matter of Cadejah AA., 33 AD3d at 1157 [citations omitted] citing Matter of Shaun X., 300 AD2d at 772).

Based on the court's finding that the testimony of the child D.T. was not credible, the court finds that Petitioner ACS has not demonstrated by a preponderance of evidence that the sexual offenses committed by Respondent in 2001 were repeated, nor has ACS presented any evidence that Respondent has harmed his daughters. To warrant a derivative finding in this matter, ACS must demonstrate that Respondent's 2001 conviction is "a reliable indicator" that the subject children's "physical, mental or emotional condition is in imminent danger of becoming impaired" (Matter of Shyrelle F., 33 Misc 3d 1232[A] [Fam Ct, Kings County 2011]). However, ACS has not offered proof of "actual (or imminent danger of) physical, emotional or mental impairment" to the children B.D. and I.D. nor shown that such danger is "near or impending, not merely possible," nor has it established "a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child's impairment or imminent danger of impairment" (Nicholson v Scoppetta, 3 NY3d at 369). ACS has established the fact of Respondent's conviction and status as a level three sex offender but these facts by themselves do not establish a presumption that he poses a danger to his children (Matter of Afton C. [James C.], 17 NY3d at 9).

The courts have recognized circumstances "in which the facts underlying a sex offense are sufficient to prove neglect" (id. citing Matter of Christopher C. [Joshua C.], 73 AD3d 1349, 1351 [ 3d Dept 2010] reversing family court's dismissal of the petition and entering a finding of neglect where therapist found respondent/sex offender had "a higher risk for re-offending," and respondent failed to complete sex offender treatment program and evidence established he continued to sexually abuse young children; Matter of Shaun X., 300 AD2d at 772-773 upholding derivative finding of abuse and neglect as to daughter of respondent and girlfriend where respondent sexually abused girlfriend's son at the same time he cared for his daughter and had previously committed acts of sexual abuse against a stepdaughter). However, ACS has offered no expert testimony or other evidence concerning the risk of harm posed by Respondent and has failed to meet its evidentiary burden (see Matter of Shyrelle F., 33 Misc 3d 1232[A] [Fam Ct, Kings County 2011] holding that where petitioner failed to demonstrate that respondent's prior sexual misconduct with one child placed his two other children at risk of harm "a finding of derivative neglect cannot stand").

In this matter, Respondent testified candidly and did not deny his guilt for his sex offenses against his half-sisters, for which he was arrested in 2001 when he was 22 years of age. He acknowledged the deficiencies that led to his conviction. Respondent stated in uncontradicted testimony that he engaged in and completed a sex offender treatment program while incarcerated and complied with the conditions of his post-release supervision, which expired in January 2007. These circumstances are clearly distinguished from those in which the courts found a continuing substantial risk of harm by a registered sex offender (see Matter of Anastacia L. [Vito L.], 90 AD3d 452 [1st Dept 2011], lv denied 18 NY3d 809 [2012] neglect and derivative neglect findings upheld where level three sex offender who committed past offenses against children failed to complete sex offender treatment, and despite court direction had unsupervised time with children; Matter of Makayla L.P. [David S.], 92 AD3d 1248 [4th Dept 2012] respondent adjudicated level two sex offender based on sexual abuse of his 12 year old [*8]mentally challenged stepsister and failed to engage in voluntary treatment; Matter of Anthony Y. [Kelly AA.-Paul AA.], 72 AD3d at 1420, in which grandfather was registered as a level two sex offender and completed treatment, but he and the grandmother "failed to understand the sexual abuse dynamic and the mother's reliance upon the grandparents as the primary caretakers placed the grandchildren in imminent danger of substantial harm and constituted a failure to exercise a minimum degree of care in providing supervision"). The court finds that ACS's case rests on Respondent's 2001 conviction and status as a registered sex offender, and these facts, standing alone, cannot serve as the sole basis for a derivative finding of neglect and/or abuse in this matter (see Matter of Afton C. [James C.], 17 NY3d at 10).

The court credits Respondent's testimony that he has completed specialized treatment to remedy the underlying conditions that led to his sexual misconduct and has made progress in overcoming these conditions (see Matter of Kadiatou B., 52 AD3d at 389). Moreover, ACSpresented no evidence that he had ever harmed his daughters and insufficient evidence to support a finding that Respondent has or will place them in substantial risk of harm (Matter of Afton C. [James C.], 17 NY3d at 9; Matter of Daniella HH., 236 AD2d at 716). Absent such evidence, the court does not enter a derivative finding based solely on the Respondent's 2001 conviction and status as a level three sex offender (see Matter of Elijah O [Marilyn O.]., 83 AD3d 1076, 1077 [2d Dept 2011], lv denied 8 NY3d 809 [2007] reversing family court's grant of a summary judgment derivative severe abuse finding, holding that given the passage of time between the respondent mother's criminal offense and the birth of the subject child (three years) "it cannot be said, as a matter of law, that the condition still exists").

Accordingly, the court finds that Petitioner ACS has failed to prove by a preponderance of the evidence derivative neglect or abuse by Respondent as to the subject children, B.D. and I.D., and dismisses the petitions.

E N T E R:

Dated: Bronx, New York

July 10, 2012

_________________________Carol R. Sherman, J.F.C.

Family Court, Bronx County Footnotes

Footnote 1: The court entered an adjournment in contemplation of dismissal as to B. P. on December 14, 2010 and as to C. L. on January 3, 2011.

Footnote 2: Respondent testified that his half-sisters were nine years and fourteen years when these incidents of sexual abuse occurred. However, the print-out from NYS Department of Criminal Justice Services (Petitioner's Exhibit #3) lists the victims' ages as seven and fourteen years.