Opinion
No. CAF 07-00504.
October 3, 2008.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered January 31, 2007 in a proceeding pursuant to Family Court Act article 10. The order, among other things, placed respondent under the supervision of petitioner and ordered respondent to undergo a mental health evaluation.
ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, LAW GUARDIAN, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR DYLAN L. AND LOGAN L.
Before: Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order of disposition that, inter alia, placed him under petitioner's supervision upon a finding that he neglected his two sons by exposing them to pornographic videos. Family Court did not find that respondent had sexually abused the children inasmuch as there was evidence of the possible involvement of another perpetrator, but the court ordered respondent to undergo a mental health evaluation to address the court's concerns that he may be in need of sex offender treatment. Contrary to respondent's contention, the mental health evaluation is not a "subsequent action or proceeding" and thus does not constitute a relitigation of the allegations of sexual abuse that would be barred by the doctrine of collateral estoppel ( Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 152). Also contrary to respondent's contention, the court did not abuse its discretion in ordering respondent to undergo the mental health evaluation. The record establishes that, although there was insufficient evidence to support the allegations of sexual abuse, the court had a well-reasoned basis for ordering respondent to undergo the mental health evaluation because of his conduct in exposing his sons to pornographic videos ( see Matter of Sean K., 50 AD3d 1220, 1222-1223; Matter of Charlene TT., 217 AD2d 274, 277-278; see also Matter of Selena L., 289 AD2d 35, 37).