Opinion
No. CAF 06-03383.
May 2, 2008.
Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.), entered October 24, 2006 in a proceeding pursuant to Family Court Act article 10. The order, insofar as appealed from, upon petitioner's motion for summary judgment, adjudged that respondent Therman M. had neglected his son Therman G.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR RESPONDENT-APPELLANT.
DANIEL M. DE LAUS, JR., COUNTY ATTORNEY, ROCHESTER (PAUL N. HUMPHREY OF COUNSEL), FOR PETITIONER-RESPONDENT.
ROBERT A. DI NIERI, LAW GUARDIAN, CLYDE, FOR JOSHUA P. AND MONIQUE P. ANTHONY LEAVY, LAW GUARDIAN, ROCHESTER, FOR THERMAN G.
Present: Hurlbutt, J.P., Martoche, Peradotto, Pine and Gorski, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Family Court properly determined that the sexual abuse by respondent father of his stepdaughter, of which he was convicted in 2006, established his derivative neglect of his biological son pursuant to Family Court Act § 1046 (a) (i). A finding of derivative neglect may be made where the evidence with respect to the child found to be abused or neglected "demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care" ( Matter of Daniella HK, 236 AD2d 715, 716). Here, we conclude that petitioner established that the father had an "`impaired level of parental judgment'" so as to create a substantial risk of harm to any child residing in his care ( Matter of Mary S., 279 AD2d 896, 898; see also Matter of Ahmad H., 46 AD3d 1357), particularly in view of the evidence submitted by petitioner that the son participated in sexual acts at the direction of his father. Also contrary to the father's contention, the court properly granted that part of petitioner's motion for summary judgment on the petition with respect to the son, inasmuch as the criminal conviction of sexual abuse with respect to the stepdaughter provided conclusive proof to warrant the finding of derivative neglect with respect to the son as a matter of law ( see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178; Matter of Desiree C, 7 AD3d 522, 524).