Opinion
03-15-2017
In re ENRIQUE R., and Another., Children under Eighteen Years of age, etc., Eddie R., Respondent–Appellant, The Administration for Children's Services, Petitioner–Respondent.
Andrew J. Baer, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent. Tamara A. Steckler, The Legal Aid Society, New York (Marianne Allegro of counsel), attorney for the children.
Andrew J. Baer, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Marianne Allegro of counsel), attorney for the children.
FRIEDMAN, J.P., ANDRIAS, GISCHE, WEBBER, JJ.
Order of disposition, Family Court, Bronx County (Linda B. Tally, J.), entered on or about June 18, 2015, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about March 19, 2015, finding that respondent derivatively neglected the subject children, unanimously affirmed, without costs. Appeal from fact-finding order, unanimously dismissed, without costs, as subsumed in the appeal from the order of disposition.
The finding of neglect is supported by a preponderance of the evidence, and the court's credibility determinations are entitled to deference (Family Ct. Act § 1046[b][I] ; Matter of Irene O., 38 N.Y.2d 776, 777–778, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ).
The neglect findings were not based solely upon a presumption that the father's conviction for sexually abusing an unrelated five year old is sufficient to establish that he poses a danger to his children in the absence of treatment (see Matter of Afton C. [James C.], 17 N.Y.3d 1, 9–10, 926 N.Y.S.2d 365, 950 N.E.2d 101 [2011] ). Rather, the neglect findings were premised on the circumstances surrounding the conviction, which involved abuse of a friend's child, as well as the father's failure to complete a sex offender treatment program prior to the filing of the petitions, denial of responsibility for the crime to which he had pleaded guilty, and violation of the conditions of his parole which prohibited him from living with any children without permission of the sentencing court (see Matter of Cashmere S. [Rinell S.], 125 A.D.3d 543, 544–545, 4 N.Y.S.3d 190 [1st Dept.2015], lv. denied 26 N.Y.3d 909, 2015 WL 6182303 [2015] ; Matter of Anastacia L. [Vito L.], 90 A.D.3d 452, 453, 933 N.Y.S.2d 862 [1st Dept.2011], lv. denied 18 N.Y.3d 809, 2012 WL 1033690 [2012] ; Matter of Ahmad H., 46 A.D.3d 1357, 1358, 849 N.Y.S.2d 140 [4th Dept.2007], lv. denied 12 N.Y.3d 715, 2009 WL 1810907 [2009] ). The court was also justified in drawing a negative inference concerning the father's rehabilitation based on his failure to testify and his denial of responsibility (Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 521, 942 N.Y.S.2d 79 [1st Dept.2012] ). All of these factors together warranted a finding that the father was not acting as a "reasonable and prudent parent" under the circumstances (Matter of Christopher C. [Joshua C.], 73 A.D.3d 1349, 1350–1351, 900 N.Y.S.2d 795 [3d Dept.2010] ).