State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 521051 

________________________________

In the Matter of ALEXANDER TT. 

and Others, Alleged to be 

Abused and/or Neglected 

Children.

TOMPKINS COUNTY DEPARTMENT OF MEMORANDUM AND ORDER

SOCIAL SERVICES,

Respondent;

HORACE VV.,

Appellant.

________________________________

Calendar Date: May 26, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

__________

Pamela Bleiwas, Ithaca, for appellant.

Jennifer Donlan-Fitzgibbon, Tompkins County Department of

Social Services, Ithaca, for respondent.

Donna Chin, Ithaca, attorney for the children.

__________

Rose, J.

Appeals from two orders of the Supreme Court (Rowley, J.),

entered December 30, 2014 and May 7, 2015 in Tompkins County,

which granted petitioner's application, in a proceeding pursuant

to Family Ct Act article 10, to adjudicate the subject children

to be abused and/or neglected.

After respondent was charged with sexually abusing his

stepdaughter (born in 2001), petitioner commenced this proceeding
-2- 521051 

alleging that respondent had abused and neglected her and

derivatively neglected his two biological children (born in 2006

and 2007).1 Respondent thereafter pleaded guilty to, among other

things, criminal sexual act in the second degree in regard to the

sexual abuse of his stepdaughter and criminal contempt in the

first degree based upon his admission to directing, among others,

the stepdaughter's mother, who was also the mother of his

biological children, to pressure the stepdaughter to recant. 

Based upon his convictions, petitioner moved for summary

judgment, which Supreme Court granted. Accordingly, the court

adjudicated the stepdaughter to be abused and neglected and

respondent's two biological children to be derivatively

neglected. Following a dispositional hearing, corresponding

orders of disposition and protection were issued. Respondent

appeals. 

Respondent's sole contention on appeal is that petitioner's

submissions in support of its motion were insufficient to

establish, as a matter of law, that he derivatively neglected his

two biological children.2 We disagree. Although rarely used,

summary judgment is appropriate in a Family Ct Act article 10

proceeding where no triable issues of fact exist (see Matter of

Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178,

182 [1994]; Matter of Sumaria D. [Madelyn D.], 121 AD3d 1203,

1205 [2014]). In this regard, collateral estoppel effect may be

given to a respondent's criminal conviction where the identical

issue was resolved in the criminal action (see Matter of Suffolk

County Dept. of Social Servs. v James M., 83 NY2d at 182; Matter

of Jewelisbeth JJ. [Emmanuel KK.], 97 AD3d 887, 888 [2012]). 

1 This proceeding and respondent's criminal action were

subsequently transferred to the Integrated Domestic Violence part

of Supreme Court, where the same judge presided over this

proceeding and the criminal action.

2 Inasmuch as respondent makes no argument with respect to

the finding that he abused and neglected the stepdaughter, any

argument that he could have made in that regard is deemed

abandoned (see Matter of Tara AA. v Matthew BB., 139 AD3d 1136,

1137-1138 [2016]).
-3- 521051 

Although a finding that a respondent sexually abused one child is

not sufficient, by itself, to prove that other children in the

household have been derivatively neglected, such a finding is

warranted where, as here, the evidence demonstrates an impaired

level of parental judgment that places the other children at risk

of harm (see Matter of Blaize F., 50 AD3d 1182, 1184 [2008];

Matter of Sabrina M., 6 AD3d 759, 761 [2004]).

In support of its motion, petitioner submitted the

indictment charging respondent with various sexual offenses and

the certificates of conviction establishing that he was convicted

of criminal sexual act in the second degree and criminal contempt

in the first degree. In addition, respondent does not dispute

that the parties agreed that Supreme Court would take judicial

notice of the proceedings in the criminal action. The transcript

of the plea colloquy establishes that respondent admitted to

orally sodomizing his 12-year-old stepdaughter and engaging in

efforts to pressure her to recant. This proof, in our view,

amply establishes not only that the identical issues were

resolved in the criminal action (see Matter of Suffolk County

Dept. of Social Servs. v James M., 83 NY2d at 182; Matter of

Tavianna CC. [Maceo CC.], 99 AD3d 1132, 1134 [2012], lv denied 20

NY3d 856 [2013]), but that respondent has such an impaired level

of understanding of his parental duties as to create a risk of

harm to his other children (see Matter of Ajay P., 60 AD3d 681,

683 [2009]; see also Matter of Blaize F., 50 AD3d at 1184; Matter

of Sabrina M., 6 AD3d at 761). Because no triable issues of fact

exist, petitioner's motion for summary judgment was properly

granted.

Lahtinen, J.P., Lynch, Clark and Aarons, JJ., concur.
-4- 521051 

ORDERED that the orders are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court