Matter of Shyrelle F.

[*1] Matter of Shyrelle F. 2011 NY Slip Op 52193(U) Decided on October 27, 2011 Family Court, Kings County Olshansky, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2011
Family Court, Kings County

In the Matter of Shyrelle F. Brandon S. Justin S. Children under Eighteen Years of Age Alleged to be Neglected by Wendell S., Respondent.



NN-1728 - 30/09



APPEARENCES:

Christine Waer, Esq.

Special Assistant Corporation Counsel

Administration for Children's Services

330 Jay Street

Brooklyn, New York 11201

Racquel Cousins, Esq.

For respondent father

299 Broadway, Suite 700

New York, New York 10007

Rhonda Weir, Esq.

For non respondent mother

869 East 12th Street

Brooklyn, New York 11230

Kim Ostheimer, Esq.

Attorney for the Child, Shyrelle F.

Legal Aid Society

Juvenile Rights Practice

111 Livingston Street

Brooklyn, New York 11201

Michael A. Fiechter, Esq.

Attorney for the Children, Brandon S. and Justin S.

P.O. Box 1107

Bellmore, New York 11710

Emily M. Olshansky, J.

After the conclusion of the fact-finding hearing in the above child protective proceeding, the attorneys for the parties and the Attorneys for the Children have submitted written summations. In addition, the Attorney for the Children, Brandon S. and Justin S., has moved by order to show cause for the dismissal of the derivative neglect allegations. The Administration for Children's Services is seeking a finding of neglect against respondent based on inadequate guardianship on behalf of respondent's stepdaughter, Shyrelle, and findings of derivative neglect as to his biological children, Brandon and Justin. Respondent opposes a finding of neglect or derivative neglect and is seeking dismissal of the petitions. The Attorney for the Children, Brandon S. and Justin S., seeks dismissal of the derivative neglect allegations and the Attorney for the Child, Shyrelle, supports a finding of neglect as to her client. For the reasons set forth herein, the Court enters a finding of neglect against respondent based on the inadequate guardianship of his stepdaughter, Shyrelle, and dismisses the allegations of derivative neglect as to the children, Brandon and Justin.

Factual Background

Respondent father and non-respondent mother are married and the parents of two children, Justin, born on October 9, 2001 and Brandon, born on August 24, 2007. Non-respondent mother is also the mother of Shyrelle, born on March 14, 1998. Shyrelle's father does not reside in the United States.

Prior to the commencement of this proceeding, respondent father (hereinafter, the "respondent") lived with his wife, non-respondent mother, and the three subject children in Brooklyn. The Administration for Children's Services (hereinafter "ACS") alleges and respondent does not seriously dispute that he is a "person legally responsible" [FN1] for the care of Shyrelle. [*2]

On June 25, 2009, the Administration for Children's Services (hereinafter, "ACS") filed the instant petitions against respondent pursuant to Article 10 of the Family Court Act. The petitions allege that respondent committed acts against Shyrelle constituting neglect based on inadequate guardianship. Specifically, the petitions allege that on one occasion respondent inappropriately touched his stepdaughter and on other occasions he insisted on having conversations with her about sex which made her extremely uncomfortable. There are no allegations of sexual contact or sexual abuse; nor is there any allegation that respondent's actions were for purposes of sexual gratification. The petitions also allege that as a result of respondent's actions with respect to Shyrelle, Justin and Brandon are derivatively neglected children.

Upon the filing of the petitions, the children were temporarily released to non-respondent mother under ACS supervision. A temporary order of protection was entered on behalf of the children against respondent excluding him from the case address and directing that he stay away from them except for agency supervised visitation with his two children.

A fact-finding hearing was conducted on January 11, 2010, March 26, 2010, January 11, 2011 and February 25, 2011. ACS called two witnesses, Shyrelle and the investigating ACS caseworker. In addition, ACS introduced an oral report transmission dated June 10, 2009. Respondent testified on his own behalf.

After carefully evaluating the credibility of the witnesses and considering the documentary evidence introduced, as well as the relevant case and statutory law, the Court finds that Shyrelle's testimony was sufficiently credible to support a finding of neglect against respondent. The Court rejects respondent's assertion that her testimony is unworthy of belief. The Court has considered the inconsistencies in her testimony and having had the opportunity to observe her demeanor as she testified under oath found her to be largely credible.[FN2] In contrast, the Court found respondent's testimony denying the allegations of inappropriate touching lacking in credulity. Accordingly, the Court has afforded his testimony little weight. Nevertheless, the Court dismisses the allegations of derivative neglect finding the evidence insufficient to establish a fundamental defect in respondent's [*3]understanding of the duties of parenthood to the extent that any child in his care would be at risk of neglect. Procedural History

In early June 2009 respondent, non-respondent mother and the three children were returning home from a shopping trip. Respondent said that he wanted to make a bet and that he would give a massage to anyone who could correctly name the flower that grew in front of the family's house. Shyrelle correctly named dandelions as the flower and won the bet.

Shyrelle thereafter asked respondent several times for her massage. Initially, he refused saying that the bet had been between him and non-respondent mother. Shyrelle continued to ask and eventually respondent agreed.

Shyrelle said that on the day of the massage her mother was not home and her two half brothers were in their rooms. She said that it took place in the living room. She said that it happened just before her prom around her mother's birthday. At the beginning of the massage Shyrelle was lying on her stomach. Respondent told her to tell him if he did anything that made her uncomfortable. Shyrelle told him not to touch her below her waist.

At first respondent massaged Shyrelle's back. According to Shyrelle that felt good. Shyrelle had received massages from other family members in the past and they had only massaged her back. She said that her stepfather then began to massage her legs. After that he told her to turn over. He again told her to tell him if he did anything that made her uncomfortable. Shyrelle again told him not to touch her below the waist.

According to Shyrelle's testimony respondent continued to massage her legs. He then massaged her stomach. After that Shyrelle said respondent moved "lower and lower." At that point Shyrelle again told respondent not to touch her below the waist. He said, "How do you expect me to give you a massage if I don't touch you below the waist?"

During her testimony, Shyrelle was asked to explain where respondent touched her when he moved "lower and lower." She pointed to the parts of her body. The Court noted and the attorneys agreed that Shyrelle was pointing to her pelvic area and the top of her thigh. During the testimony of the investigating caseworker she said that Shyrelle reported that respondent massaged her on "the outskirts of her groin area."

According to Shyrelle she asked her stepfather not to touch her below the waist three times. Nevertheless, she said that he continued massaging her upper thigh and pelvic area. She testified that she eventually turned over and then moved away from him.

Shyrelle testified that the massage lasted between five and ten minutes. When it was over, respondent told her not to tell her mother. She testified that she did not tell her mother because she was scared.

Shyrelle testified that she was completely shocked by what her stepfather did. She said, "I was just shocked; I couldn't believe I didn't know what to feel. I was just shocked." She said that it made her "really sad" and that she cried a lot. She said that her teacher sent her to see her guidance counselor about one week after the incident. Shyrelle told her guidance counselor about what happened. She also told her that she was scared to go home because she was afraid that her stepfather would touch her inappropriately again. Shyrelle's guidance counselor called in a report of suspected child maltreatment to the New York State Central Registry.

Shyrelle testified that prior to the massage she and respondent had a good relationship. Nevertheless, Shyrelle testified about a number of other interactions with her stepfather that upset her. For example, she testified that respondent had initiated a number of conversations with her [*4]about sex when her mother was not present. Shyrelle repeatedly told respondent that she did not want to talk to him about sex, but he insisted.

According to Shyrelle, in early June 2009 respondent asked her what she knew about the "process of sex." Shyrelle said she did not want to talk to him about it and that she talked to her mother about those things. The conversation stopped when Shyrelle's mother came home. Two days later, however, respondent asked Shyrelle the same question. She told respondent that she did not want to talk to him about it but he insisted. She eventually told him about her understanding of sexual intercourse. Respondent apparently understood her description to be incorrect. He corrected her and explained.

In addition, she testified about a prior occasion when respondent stopped speaking to her for several days after she threw a dirty soup bowl in the garbage, instead of washing it. She also described one incident when respondent kicked her on her butt. She said that one day she had been walking through the living room and tried to pass respondent who had one leg resting on the arm of a chair. She said that when she tried to pass he moved his leg and then kicked her in the behind. She did not say that she was hurt or disturbed by that incident.

The caseworker testified about the statements made by Shyrelle during the interview she conducted with Detective Wonsor on June 10, 2009 at the Child Advocacy Center. The caseworker's testimony described the same sequence of events that Shyrelle had described. The caseworker testified that Shyrelle said that the massage took place around June 3. The caseworker also testified that Shyrelle told her that she kept a journal and that she had made two recent entries in which she said that she wanted to die.

The caseworker testified that Shyrelle told her that prior to the massage she and respondent had a good relationship. She said they got along a lot of the time. She said that she loved her brothers and that respondent treated her and the boys the same way. She said that she and respondent occasionally disagreed about homework or boyfriends and she described the incident about the soup bowl stating that respondent gave her the "silent treatment" for three days after it happened.

Respondent testified and acknowledged that he and his stepdaughter had engaged in a number of conversations about sex. He said that he had informed non-respondent mother about the conversations. He acknowledged that he did not speak with Shyrelle for three days after discovering the dirty soup bowl in the garbage. He denied that he ever gave Shyrelle a massage.

Legal Analysis

1. Respondent Failed to Exercise a Reasonable Degree of Care and as a Result his Step-Daughter's Physical, Mental or Emotional Condition was Impaired or Placed at Imminent Risk of Impairment

Article 10 of the Family Court Act defines a "neglected child" as a child less than 18 years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of h[er] parent or other person legally responsible for h[er] care to exercise a minimum degree of care in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm or a substantial risk thereof or by any other acts of a similarly serious nature" (Family Court Act § 1012 [f] [i] [B]).

Family Ct Act § 1012 (f) imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence (Family Ct Act § 1046 [b] [i]). First, there must be a showing that a parent failed to exercise a minimum degree of care. A "minimum degree of care" is a "baseline of proper care for children that all parents, regardless of lifestyle or social or economic [*5]position, must meet." This is an objective test requiring the court to determine whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing" (Nicholson v Scoppetta, 3 NY3d 357, 368 - 370 [2004]; Matter of Afton C., 17 NY3d 1 [2011]). The statute provides that parents and persons legally responsible for the care of a child exercise only a minimum degree of care not maximum, not best, not ideal and the failure to do so must be actual, not threatened (In Matter of Afton C., 17 NY3d at 9).

Second, there must be proof of actual or imminent danger of physical, emotional, or mental impairment to the child.[FN3] The drafters of article 10 were "deeply concerned" that an imprecise definition of child neglect might result in "unwarranted state intervention into private family life" (Nicholson v Scoppetta, 3 NY3d 357, 368 — 370 [2004]; Matter of Nassau County Dept. of Social Servs. [Dante M.] v Denise J., 87 NY2d 73, 78-79 [1995]). This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.

"Imminent danger" reflects the Legislature's judgment that a finding of neglect may be appropriate even when a child has not actually been harmed. Imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based. Imminent danger, however, must be near or impending, not merely possible (Family Court Act § 1012 [h]; Nicholson v Scoppetta, 3 NY3d 357, 368 — 370 [2004]; Matter of Angelique L. v Tracy L., 42 AD3d 569 [2d Dept 2007]).

Additionally, in order to establish neglect, the "impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child." In this regard, the Legislature recognized that the source of emotional or mental impairment-unlike physical injury-may be murky, and that it is unjust to fault a parent too readily. The Legislature therefore specified that such impairment be "clearly attributable" to the parent's failure to exercise the requisite degree of care (Nicholson v Scoppetta, 3 NY3d 357 at 370).

In the instant case, respondent failed to exercise a minimum degree of care when he gave his stepdaughter a massage on "the outskirts of her groin," repeatedly touching her pelvic area and the top of her thigh despite her three explicit requests that he not do so. Applying an objective test, this is not how a reasonable and prudent parent would have acted under the circumstances.

The fact that respondent touched his stepdaughter inappropriately on only one occasion does not require a different result since the evidence establishes that respondent's judgment was impaired and the child was exposed to a risk of substantial harm (Matter of Jared S. v Monet S., 78 AD3d 536 [1st Dept 2010] [a single incident of domestic abuse is sufficient to support a finding of neglect where the parent's judgment was strongly impaired and the child was exposed to a risk of substantial harm]; In re Joseph RR., 86 AD3d 723 [3d Dept 2011] [a finding of neglect does not require actual injury or impairment but only an imminent threat that such injury may result and such a threat may [*6]result from a single incident]; Matter of Serenity P., 74 AD3d 1855 [4th Dept 2010] [where a mother left her two children, ages one and three, unattended in a car for 15 minutes while she went shopping she demonstrated that her judgment was strongly impaired and her children were exposed to a risk of substantial harm sufficient to support a finding of neglect]; In re Victoria CC., 256 AD2d 931, 932-933 [3d Dept 1998] [a single incident may be sufficient to constitute neglect if the parent was aware of the intrinsic danger of the situation and leaving a nine-month-old child unattended in a bathtub is intrinsically dangerous and manifests a lack of judgment that placed the child in substantial risk of harm]; Matter of Rachel H., 60 AD3d 1060, 1061 [2d Dept 2009] [one incident of excessive corporal punishment was sufficient to establish neglect where the mother threw a can of hairspray at her four-year-old child]; Matter of Lester M., 44 AD3d 944 [2d Dept 2007] [a single incident may be sufficient to constitute neglect if the parent was aware or should have been aware of the intrinsic danger of the situation and the danger of using a curling iron near a two-year-old child jumping on the bed should have been apparent]; Matter of Padmine M., 84 AD3d 806 [2d Dept 2011] [a single incident of excessive corporal punishment supported a finding of neglect where the father hit his 15-year-old daughter several times with a pole, causing bruises to her arm and back]).

The evidence establishes that Shyrell's physical, mental or emotional condition was impaired or placed at substantial risk of becoming impaired as a direct result of respondent's actions. Shyrelle testified that she was completely shocked by what her stepfather did. She said that it made her "really sad" and she cried a lot as a result. Although Shyrelle attempted to keep the incident a secret she was unable to do so. Her reaction was apparently sufficiently obvious to her teacher that she sent her to see her guidance counselor.

Shyrelle felt betrayed by her stepfather. She was scared to go home because she did not want to see him and she was afraid that he would touch her inappropriately again.

She continued to express her feelings of sadness and confusion during the months that followed. She talked about how disappointed she was when she learned that her mother continued to maintain contact with her stepfather. She wished that her mother would divorce him. Later, she made entries in her diary indicating that she wanted to die.

2. The Nature and Duration of the Underlying Neglect are Insufficient to Establish a Fundamental Flaw in Respondent's Understanding of the Duties of Parenthood Sufficient to Create a Substantial Risk of Harm for any Child in his Care

Utilizing the concept of derivative neglect, the courts have attempted to protect not only children who are the direct victims of abuse or neglect, but also those who have a probability of being subject to maltreatment because they are in the care of a respondent who has been found to have neglected another child. The concept of derivative neglect is based on the assumption that a respondent who mistreats one child is more likely to mistreat other children in his care.

Accordingly, Family Court Act § 1046 (a) (i) provides that proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of other children of respondent (Matter of Jovann B., 153 AD2d 858 [2d Dept 1989]; Matter of James P., 137 AD2d 461 [1st Dept 1988]). Nevertheless, there is no per se rule that the children of a respondent who neglects one sibling are automatically also neglected children. The mere admissibility of evidence constitutes neither prima facie nor presumptive evidence of abuse or neglect of that child's siblings (Dutchess County Dept of Social Servs. on behalf of Douglas E., 191 AD2d 694 [2d Dept 1993]). Rather, the court must consider the parent's role and nature of the underlying misconduct, notably its duration, the circumstances surrounding its commission and whether it can be said to evidence a fundamental flaw in respondent's understanding of the duties of parenthood sufficient to create a substantial risk [*7]of impairment for any child in his care (In re Andrew B.-L., 43 AD3d 1046, 1047-1048 [2d Dept 2007]; In re Jahyalle F., 66 AD3d 1019, 1019-1020 [2d Dept 2009] [where respondent put her son in a hot oven as a form of punishment she demonstrated a fundamental defect in her understanding of parental duties relating to the care of children, sufficient to support a finding of derivative neglect]; In re Ramsay M., 17 AD3d 678 [2d Dept 2005] [the sexual abuse of one child was sufficient to establish an impaired level of parental judgment creating a substantial risk of harm for any child in his care]; In re Cory S., 70 AD3d 1321 [4th Dept 2010] [by allowing her daughter to be sexually abused by her adult son respondent demonstrated a fundamental defect in her understanding of the duties and obligations of parenthood sufficient to support a finding of derivative neglect]).

In determining whether the abuse or neglect of one child is sufficient to support a derivative finding as to other children in a respondent's care the courts have generally considered whether the direct abuse or neglect demonstrated such a fundamental defect in respondent's understanding of the duties and obligations of parenthood as to create a substantial risk of harm to any child in his care. Numerous factors are relevant to this determination including the following:

(i) whether the direct abuse or neglect was serious and/or involved a course of abusive or neglectful behavior;

(ii) whether there is evidence of specific harm to the siblings or whether the underlying abuse or neglect was of sufficient magnitude to establish that the siblings' physical, mental or emotional condition was in imminent danger of becoming impaired in the absence of extraneous proof;

(iii) whether the direct abuse or neglect was sufficiently proximate in time to reasonably support the conclusion that the condition continues to exist.

A.The Seriousness of the Underlying Finding

In considering whether to enter a derivative finding the courts have examined the nature and duration of the underlying abuse or neglect. These factors are considered since it is assumed that the more serious and longstanding the underlying misconduct the more probative it is of respondent's ability to provide adequate care to any children in the home.

Where the underlying finding was based on acts of sexual abuse by a respondent derivative findings are frequently made (see Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992] [respondent's sexual abuse of his stepdaughter supported a derivative finding of neglect as to his eleven-year-old daughter since the direct abuse demonstrated a fundamental defect in respondent's understanding of the duties of parenthood]; In re Vincent L., 46 AD3d 395 [1st Dept 2007], lv denied 10 NY3d 706 [2008] [respondent's sexual abuse of children under the age of 14 demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to the remaining children in his care]; Matter of Jasmine A., 18 AD3d 546 [2d Dept 2005][evidence that one child was sexually and physically abused and that her brothers were physically abused, supported a finding of derivative neglect as to the remaining children since respondent's conduct demonstrated a fundamental defect in his understanding of parental duties relating to any child in his care]).

Similarly, where the underlying finding was based on physical abuse by a respondent a derivative finding may be warranted (see Matter of Dutchess County Dept. of Social Servs. [Noreen K.], 242 AD2d 533 [2d Dept 1997] [derivative finding entered based on three non-accidental bone fractures suffered by a two-month-old infant since the injuries showed such an impaired level of parental judgment as to create a substantial risk of harm for any child in the parents' care]; In re Joshua R., 47 AD3d 465 [1st Dept 2008], lv denied 11 NY3d 703 [2008] [findings of derivative neglect entered where respondent shoved food into the mouth of a child who refused to eat and then [*8]slapped him in the face causing vomiting, a bloody nose and bruised eye]; Matter of Eli G., 189 AD2d 764 [2d Dept 1993] [respondent's beating of his son with an electrical cord resulting in bruises and lacerations was sufficient to establish derivative abuse where the beating was not an isolated incident but a pattern of discipline that the respondent continued to feel was justified]; Matter of Pierre M., 239 AD2d 262 [1st Dept 1997] [evidence that respondent hit her 15-year-old daughter in the head with a wooden table leg with a nail protruding causing lacerations requiring stitches supported a derivative finding]; Matter of Dareth O., 304 AD2d 667 [2d Dept 2003]).

Likewise, derivative neglect findings are often made in cases where the underlying abuse or neglect was based on a course of conduct rather than an isolated incident. This factor is considered since it is presumed that the more longstanding the underlying misconduct, the more probative it is of respondent's ability to provide adequate care to any child (compare Matter of Eli G., 189 AD2d 764 [2d Dept 1993] [respondent's abuse of his son by beating him with an electrical cord was sufficient to establish derivative abuse where the beating was not an isolated incident but a pattern of discipline that respondent felt was justified]; Matter of Andrew B., 49 AD3d 638 [2d Dept 2008], lv denied 10 NY3d 714 [2008] [respondent's repeated fabrications as to the child's medical condition, which required unnecessary medical treatments and the withdrawal of the child from school, demonstrated fundamental flaws in her understanding of the duties of parenthood sufficient to warrant a finding of derivative neglect with respect to the other child in the home], with Matter of Amanda R., 209 AD2d 702 [2d Dept 1994] [evidence of a single incident of abuse of a one-month-old child did not make out a prima facie case of derivative neglect as to respondent's 10-year old]; In re Keith B., 306 AD2d 343 [2d Dept 2003] [evidence of a prior neglect finding entered three months before the subject child was born was an isolated incident which did not warrant a finding of derivative neglect, although there were two other prior findings, they were remote in time]; In re Samuel Y.,270 AD2d 531 [3d Dept 2000][evidence of a single incident in which the mother struck one of her children on the side of the face was insufficient to prove such an impaired level of parental judgment as to create a substantial risk of harm for any child in her care]).

Moreover, where the underlying finding was based on acts of a respondent perpetrated on multiple victims a derivative finding may be warranted (Matter of Jasmine A., 18 AD3d 546 [2d Dept 2005] [evidence that one child was sexually and physically abused and that two of her brothers were physically abused was sufficient to support a finding of derivative neglect as to the remaining children since respondent's conduct demonstrated a fundamental defect in his understanding of parental duties relating to any other children in his care]; In re Shaun X., 300 AD2d 772 [3d Dept 2002] [evidence that the father abused and neglected his daughter, that he repeatedly sexually abused his girlfriend's son while he was entrusted with the care of his daughter and that he left his daughter unattended while abusing his girlfriend's son was sufficient to support a derivative finding]).

Likewise, where a respondent commits acts of sexual or physical abuse against one child while other children are present a derivative finding may be warranted (see Matter of Amanda LL., 195 AD2d 708, 710 [3d Dept 1993] [the nature of the abuse and that it was perpetrated while another child was in the same room demonstrated a total lack of understanding of the parental role, which created a substantial risk of physical injury likely to cause protracted impairment of the non-target child's physical and emotional health, thus supporting a finding of derivative abuse]; In re Joseph RR., 86 AD3d 723 [3d Dept 2011] [evidence that respondent and her paramour fought frequently, that he drank alcohol daily, that during an argument, while three of the children were present, he threatened respondent with a handgun, discharged the weapon numerous times and that he grabbed [*9]one child's wrist, displayed his pocket knife and threatened to cut her finger off for picking her nose, supported a derivative finding for another child in the home]; In re A.J., 17 Misc 3d 631, 643-644 [Fam Ct, Queens County 2007] [evidence that respondent abused one child while another child was in the room created a substantial risk of physical injury likely to cause protracted impairment of the non-target child's physical or emotional health and supported a finding of derivative abuse]; In re Ingrid R., 18 Misc 3d 1129A [Fam Ct, Queens County 2008] [exposing a 10-year-old child to the sexual abuse of two other children constituted derivative abuse]).

In such circumstances, the physical and emotional harm inflicted on the "target child" is considered evidence that the perpetrator lacks the capacity to care for and protect the other children in his care (Matter of Melissa L., 276 AD2d 856 [3d Dept 2000], lv denied 96 NY2d 702 [2001] [the repeated sexual abuse of one child evinced a lack of ability to protect a child from harm, which created a substantial risk to any child in respondent's care]; In re Christopher W., 299 AD2d 268 [1st Dept 2002] [the nature and severity of the direct abuse, involving a bathtub scalding of a child resulting in death, warranted a finding of derivative abuse]; Matter of Jorge S., 211 AD2d 513 [1st Dept 1995], lv denied 85 NY2d 810 [1995] [an unexplained fracture sustained by one child supported a finding of derivative neglect as to other children in the home]; Matter of Christina Maria C.,89 AD2d 855 [2d Dept l982] [one-year-old was found to be derivatively neglected based upon the physical abuse of the child's seven-year-old half-brother]; Matter of Rasheda S., 183 AD2d 770 [2d Dept 1992] [the sexual abuse of a stepdaughter supported a derivative finding as to an eleven-year-old daughter since the direct abuse demonstrated a fundamental defect in respondent's understanding of the duties of parenthood]; Matter of Dutchess County Department of Social Services o/b/o Douglas E., 191 AD2d 694 [2d Dept 1993] [a derivative neglect finding was entered as to respondent's son where he repeatedly sexually abused his 10-year-old daughter]).

In the instant case, the underlying finding was not based on acts of physical or sexual abuse. It was not based on a course of conduct but on an isolated incident. It did not involve multiple victims or acts of abuse or neglect against one child while other children were present. Accordingly, the underlying finding was not of sufficient duration or magnitude to support the conclusion that respondent was unable to provide adequate care to any children in the home.

B. Whether the Underlying Neglect was of Sufficient Magnitude to Establish that the Siblings' Physical, Mental or Emotional Condition is in Imminent Danger of Becoming Impaired in the Absence of Extraneous Proof

In order to establish that respondent's actions against Shyrelle are indicative of a fundamental flaw in his understanding of the duties of parenthood sufficient to establish derivative neglect ACS must introduce evidence of specific harm to the siblings unless the underlying neglect is of sufficient magnitude to support a finding in the absence of extraneous proof (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004]; Matter of Cadejah AA., 33 AD3d 1155 [3d Dept 2006]). Absent evidence of actual harm, the underlying finding must provide a reliable indicator that the siblings' physical, mental or emotional condition is in imminent danger of becoming impaired. Otherwise, a finding of derivative neglect cannot stand (see e.g., In re Christina P., 275 AD2d 783 [2d Dept 2000] [although respondent knew or should have known that allowing her daughter and her paramour to sleep together in the same bed would not have been tolerated by a reasonably prudent parent and thereby placed her daughter in imminent danger of sexual abuse, there was insufficient evidence to support a finding of derivative neglect with regard to her son]; In re Ijeoma O., 271 AD2d 691 [2d Dept 2000] [where respondent was aware that her daughter was emotionally disturbed and needed mental health services that she failed to obtain, she neglected the child; however, the evidence was [*10]insufficient to sustain the finding that she derivatively neglected her other children]; Matter of Andrew B.-L., 43 AD3d 1046 [2d Dept 2007] [no derivative neglect in the absence of evidence that respondent used excessive corporal punishment against the other children]; In re Shawndel M., 33 AD3d 1006 [2d Dept 2006] [although respondent encouraged the child to decline medical treatment and leave the hospital thereby placing her in imminent danger of impairment, the finding of derivative neglect was unsupported since there was no showing that respondent's actions placed the sibling at imminent risk]; In re Summer Y.-T., 32 AD3d 212 [1st Dept 2006] [a derivative finding of neglect was not warranted where the parents' conduct was not so egregious as to support a conclusion that they lacked the requisite judgment to function as adequate parents]; Matter of Justin O., 28 AD3d 877 [3d Dept 2006] [respondent's failure to protect one child from excessive corporal punishment did not establish that the other children were derivatively neglected since there was no evidence that any other child was struck or that their physical, mental or emotional condition was impaired or in danger of becoming impaired as a result of the incident]; Matter of Daniella HH., 236 AD2d 715 [3d Dept 1997] [where the underlying finding was based on the medical neglect of an infant who had health problems since birth and was admitted to the hospital suffering from failure to thrive a finding of derivative neglect was unwarranted]; In re Jocelyne J., 8 AD3d 978 [4th Dept 2004] [where the underlying finding was based on the fact that respondents, having raised a child as their own, sent her back to Haiti without making arrangements for her to return, since those actions did not provide a reliable indicator that the second child was at substantial risk of harm, the child's attorney opposed a derivative finding and respondents cared for the second child appropriately]; In re Julia BB., 42 AD3d 208 [3d Dept 2007], lv denied 9 NY3d 815 [2007] [even if the target child had been abused no derivative finding should have been entered where there was no evidence that the other children's physical, mental or emotional well-being was impaired or in danger of becoming impaired since the other children were thriving in respondents' care and they were attentive and loving parents who attended to all of the children's needs]).

In recent years the Court of Appeals has repeatedly emphasized the need to prove the element of impairment or risk of impairment stressing that presumptions, assumptions suspicion and conjecture will not suffice (Nicholson v Scoppetta, 3 NY3d 357, 370 [2004]; Matter of Afton C., 17 NY3d 1 [2011]; Nassau County Dept. of Social Services on Behalf of Dante M. v Denise J., 87 NY2d 73, 79 [1995] [the Family Court erred in concluding that a positive toxicology for a controlled substance alone was sufficient to support a finding of neglect since the test alone does not prove that the child has been physically, mentally or emotionally impaired or is in imminent danger of being impaired; relying solely on a positive toxicology for a neglect determination fails to make the necessary causative connection to the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child]; see also Matter of Cadejah AA., 33 AD3d 1155 [3d Dept 2006]).

Addressing this issue in Matter of Afton C. (17 NY3d 1 [2011]), the Court of Appeals vacated findings of neglect that had been entered against a father on behalf of his five children. In that case, the Court found that the nature of the underlying misconduct was not of sufficient magnitude to support a neglect finding in the absence of extraneous proof of harm or risk of harm. Specifically, the Court held that the father's plea of guilty to rape in the second degree, engaging in sexual intercourse with a person less than 15 years of age, patronizing a prostitute under 17 years of age and his acknowledgement that he was an untreated level three sex offender, without more, did not warrant a neglect finding where there was no evidence that his actions inflicted harm or a substantial risk of harm to his own children. [*11]

In Afton C., the Family Court had entered a finding of neglect. It concluded that the father's behavior created a substantial risk of harm to the children because he was a convicted sex offender and that he, therefore, "posed a risk of harm to the public at large." Additionally, the court found that the father's testimony demonstrated a "lack of candor, a shortage of insight into his own behavior and an attempt to avoid responsibility for the illegal acts involving minors" (Id., 17 NY3d at 8). Moreover, the court saw the father's failure to obtain treatment as demonstrating an impaired level of parental judgment sufficient to create a substantial risk of harm to any child in his care.

The Appellate Division, Second Department reversed holding that "[t]he mere fact that a designated sex offender resides in the home is not sufficient to establish neglect absent a showing of actual danger to the subject children." The Court added that although the trial court could properly consider whether father's testimony was evasive the evidence remained insufficient to establish that he posed an imminent danger to the children.

The Court of Appeals agreed with the Appellate Division rejecting the argument that the father's status as a sex offender convicted of crimes involving minors was sufficient to establish that he posed a danger to his own children. The Court emphasized that a presumption of risk could not be used as a substitute for evidence to establish the necessary causal connection between parental misconduct and the alleged harm or risk of harm to the children. The Court noted that such bare allegations do not meet the Family Court Act's requirement for proof by a preponderance of the evidence of actual or imminent risk of harm as a result of the parent's failure to exercise a minimum degree of care (Matter of Afton C., 17 NY3d at 10, citing Nicholson, 3 NY3d at 370 — 371).

The Court rejected the suggestion that an untreated sex offender residing with his children is presumably a neglectful parent. The Court stated that the Sex Offender Registration Act (SORA) assessment was not designed to ascertain whether the offender met the Family Court Act's definition of parental neglect. The Court indicated that even if a level three SORA assessment were evidence of likely recidivism, child protective services failed to prove that the father's crimes endangered his children. Accordingly, the likelihood of a repeat offense which is what SORA purports to measure is not directly relevant to whether respondent's own children were at imminent risk.

The Court stressed that child protective services failed to present evidence, expert or otherwise, explaining how respondent's criminal conviction established that he posed a risk of harm to his children (Matter of Afton C., 17 NY3d at 10 — 13). The fact that respondent's crimes involved victims younger than 18 was deemed insufficient to establish that he breached a minimum duty of parental care or posed a danger of near or impending harm to his children. The Court added that although respondent was evasive and, in the Family Court's view, lacked candor or insight into his behavior, that was insufficient to fill the evidentiary gap (Id.).

Applying similar reasoning inMatter of Cadejah AA. (33 AD3d 1155 [3d Dept 2006]), the Appellate Division, Third Department rejected a derivative finding although a parent had neglected his teenage stepdaughter by spying on her through a hole he made in her bedroom wall. The Court explained that its decision was based on the failure of the child protective agency to prove the element of impairment or risk of impairment which was necessary to establish derivative neglect.

The Court emphasized that there was no evidence establishing that respondent's biological son was aware of his father's behavior or that the behavior had any impact on him. The Court concluded that there had been no actual harm to the child and that the duration and seriousness of the underlying neglect was not of sufficient magnitude to support a derivative finding in the absence of extraneous proof. The Court emphasized that differences in gender and parentage between a child who had been directly neglected and children alleged to be derivatively neglected would not [*12]preclude a derivative finding. Nevertheless, the Court indicated that these factors could be considered in determining whether a respondent's conduct placed his other children at risk of harm.After considering these factors, the Court found that a single incident of inappropriate conduct by respondent establishing neglect of the stepdaughter was insufficient to support a derivative finding of neglect as to respondent's son.

Considering these principles in light of the facts at bar, the Court concludes that a single incident of inappropriate conduct by respondent as to his stepdaughter did not provide a reliable indicator that his two biological children were placed at a substantial risk of harm sufficient to support a finding of derivative neglect. ACS introduced no evidence establishing that respondent's biological children were aware of their father's behavior or that his inappropriate behavior had any impact on them. ACS introduced no evidence expert or otherwise to establish that respondent's neglect of his stepdaughter presented an imminent risk of harm to the physical, mental or emotional condition of the two younger children. Additionally, ACS failed to establish that the duration and magnitude of the underlying neglect evidenced a fundamental flaw in his understanding of the duties of parenthood. Even though respondent's neglect of Shyrelle involved a half-sibling of the younger children that alone did not demonstrate that his actions inflicted harm or a substantial risk of harm to the other children. Although respondent denied the allegations of neglect and appeared to lack insight into his behavior that was insufficient to fill the evidentiary gap.

C. Proximity in Time

The third issue is whether the underlying incident is sufficiently proximate in time to reasonably support the conclusion that the condition continues to exist. This factor is considered since it is presumed that the more recent the underlying misconduct, the more probative it is of respondent's current ability to provide adequate care to other children in the home (compare Matter of Baby Boy W., 283 AD2d 584 [2d Dept 2001] [where the subject child was born two months after the prior incident it was sufficiently proximate in time to support a finding of derivative neglect]; In re Amber C., 38 AD3d 538 [2d Dept 2007], appeal denied 8 NY3d 816 [2007] [where the parents admitted neglecting four of their children and prior findings were entered nine and seven months prior to the subject child's birth, the prior incidents were sufficiently proximate in time to support a finding of derivative neglect]; Matter of Tradale CC.,52 AD3d 900 [3d Dept 2008] [a derivative finding was entered where respondent continued to use excessive corporal punishment to such a degree that her contact with the children had to be supervised and she failed to cooperate with any of the services or program that were ordered], with In re Dana T., 71 AD3d 1376, 1376 - 1377 [4th Dept 2010] [the prior adjudication of neglect was too remote in time to sustain a derivative finding where respondent had consented to the prior finding five years earlier as to her older children based on the condition of her home and her failure to obtain medical treatment since child protective authorities had virtually no contact with respondent during the 2 1/2 years prior to the birth of the child and were unable to provide testimony regarding her current living situation or her understanding of her parental duties and respondent presented witnesses who testified that the home was clean and that she had attended all prenatal appointments for the child at issue]; In re Kadiatou B., 52 AD3d 388 [1st Dept 2008], lv denied 12 NY3d 701 [2009] [dismissing derivative neglect allegations where the prior abuse finding was entered six years earlier based on res ipsa loquitur after the death of respondents' three-month-old baby and an injury to her twin sister nine years earlier given the lack of proof of respondents' culpability, that it was remote in time, that respondents complied with the service plan and obtained services on their own, that respondents' [*13]interactions with children were positive and that the agency discharged the twin from foster care to respondents' without court permission]).

In the instant case, ACS alleges that the two younger siblings were derivatively neglected by respondent during the same period of time that the neglect of Shyrelle took place. Since these events allegedly occurred contemporaneously there is little issue regarding proximity in time. Nevertheless, since ACS failed to establish a causal connection between respondent's neglect of Shyrelle and the alleged risk of harm to the younger children, proximity in time is not dispositive of whether respondent was able to provide adequate care to other children in the home.

Conclusion

Based upon the nature and duration of respondent's neglect of his stepdaughter, the Court rejects the assertion that he has a fundamental defect in his understanding of his parental duties and obligations, this Court finds that the conditions which led to the neglect of Shyrelle do not establish imminent risk to the physical, mental or emotional condition of respondent's biological children.

In the instant case, there is no evidence of actual or imminent danger of physical, emotional or mental impairment to Brandon S. and Justin S. let alone an impairment that was clearly attributable to respondent's unwillingness or inability to exercise a minimum degree of care toward them. The duration and magnitude of the original neglect against Shyrelle, standing alone, does not support the conclusion that the younger children were at risk.

In reaching this conclusion, the Court has considered that the finding as to Shyrelle did not involve sexual abuse or a course of abusive or neglectful behavior. It did not involve violent acts or multiple victims or acts of maltreatment against one child while other children were present. It was based an isolated incident rather than a course of conduct.

In reaching this conclusion, the Court has also considered that there was no evidence adduced suggesting that respondent's biological sons were aware of their father's behavior or that his behavior had any impact on them. Although differences in gender and parentage between Shyrelle who was directly neglected and the two boys who were alleged to be derivatively neglected would not preclude a derivative finding, such factors have been considered in evaluating whether respondent's misconduct placed his other children at risk of harm. Since the underlying finding does not provide a reliable indicator that the half - siblings' physical, mental or emotional condition was impaired or placed in imminent danger of becoming impaired, a finding of derivative neglect cannot stand.

Accordingly, it is

ORDERED, that the petition alleging neglect as to Shyrelle F. is granted; and it is further

ORDERED, that the motion is to dismiss the allegations of neglect as to Brandon S. and Justin S. is granted; and it is further

ORDERED, that a dispositional hearing shall be conducted before the Court on November 9, 2011, at 3:30 PM.

DATED:E N T E R:

_________________________

EMILY OLSHANSKY, J.F.C. Footnotes

Footnote 1: The Family Court Act § 1012 (g) provides that a "person legally responsible" for a child includes the child's custodian, guardian or any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child." In determining whether a respondent is "person legally responsible" under the statute, the court must consider such factors as the frequency and nature of the contact between the child and the respondent, the nature and extent of control exercised by the respondent over the child's environment, the duration of respondent's contact with the child and respondent's relationship to the child's parent (In re Yolanda D., 88 NY2d 790 [1996]). A respondent will be deemed a "person legally responsible" where, as here, they resided in the same household as the child at all relevant times and is involved in the child's ongoing care (People v Carroll, 244 AD2d 104 [1st Dept 1998], affd 93 NY2d 564 [1999]; Matter of Johnnie S., 272 AD2d 472 [2d Dept 2000]).

Footnote 2: Where allegations of abuse or neglect are established by the testimony of a child, contradictions and inconsistencies often occur. This fact must be viewed in the context of the entire record. The court must consider whether other evidence sufficiently corroborates the original allegations. Undue emphasis should not be placed on minor inconsistencies between the child's trial testimony and her prior statements if her testimony is largely consistent and corroborated by other evidence (In re Melissa P., 261 AD2d 141 [1st Dept 1999], appeal dismissed 93 NY2d 1041 [1999]; Matter of Rubina A., 308 AD2d 537 [2d Dept 2003] [the child gave credible testimony regarding the abuse and the contradictions in her testimony were attributable to familial pressure and a reluctance to testify]; In re Brandi U., 47 AD3d 1103 [3d Dept 2008] [the child's testimony was properly credited despite minor inconsistencies since it corroborated her unsworn out-of-court statements describing the abuse]; In re Heather S., 19 AD3d 606 [2d Dept 2005] [the child's testimony sufficiently corroborated her out-of-court descriptions of abuse despite peripheral inconsistencies relating to time-frame]; Matter of Melissa M., 136 Misc 2d 773 [Fam Ct, Suffolk County 1987] [inconsistencies in the child's various out-of-court statements were minor and did not undermine her credibility]; In re Ida EE., 31 AD3d 923 [3d Dept 2006] [the child's testimony was sufficient to sustain the allegations of abuse and neglect despite the inconsistencies, where the court had the opportunity to observe the child as she testified and found her to be credible]).

Footnote 3: Family Court Act § 1012 (h) provides that "impairment of emotional health" and "impairment of mental or emotional condition" include a "state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child."