State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 20, 2016 520817 

521656

________________________________

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