Opinion
582 CAF 16–01132
06-08-2018
In the MATTER OF SEAN P. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Brandy P., Respondent, and Sean P., Respondent–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT. LAURA ESTELA CARDONA, SYRACUSE, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT.
LAURA ESTELA CARDONA, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent father appeals from an order determining that he derivatively neglected his newborn son. Family Court's determination was based on, inter alia, the father's sexual abuse of a child, which resulted in an abuse adjudication. On a prior appeal, we affirmed the order determining that respondent mother neglected the subject child herein ( Matter of Sean P. [Brandy P.], 156 A.D.3d 1339, 65 N.Y.S.3d 902 [4th Dept. 2017] ).
Contrary to the father's contention, the finding of derivative neglect is supported by a preponderance of the evidence in the record (see Family Ct Act § 1046[b][i] ; Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 371, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; Matter of Makayla L.P. [David S.], 92 A.D.3d 1248, 1249–1250, 939 N.Y.S.2d 680 [4th Dept. 2012], lv dismissed 19 N.Y.3d 886, 948 N.Y.S.2d 577, 971 N.E.2d 858 [2012] ). Although evidence of abuse or neglect of one child does not, standing alone, establish a prima facie case of derivative neglect against a parent, "[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 [the parent's] care’ " ( Matter of Jovon J., 51 A.D.3d 1395, 1396, 857 N.Y.S.2d 850 [4th Dept. 2008] ; see § 1046[a][i] ). "In order ‘[t]o sustain a finding of derivative neglect, the prior finding must be so proximate in time to the derivative proceeding so as to enable the factfinder to reasonably conclude that the condition still exists’ " ( Matter of Dana T. [Anna D.], 71 A.D.3d 1376, 1376, 896 N.Y.S.2d 545 [4th Dept. 2010] ); however, " ‘there is no bright-line, temporal rule beyond which we will not consider older child protective determinations’ " ( Matter of Ilonni I. [Benjamin K.], 119 A.D.3d 997, 998, 990 N.Y.S.2d 116 [3d Dept. 2014], lv denied 24 N.Y.3d 914, 2015 WL 588728 [2015] ). In the instant case, "there is no reason to believe that the father's proclivity for sexually abus[e] ... has changed, nor is there any indication the father has addressed the issues that led to the prior adjudication of ... his sexual abuse of [the] child[ ]" ( Matter of Ahmad H., 46 A.D.3d 1357, 1357–1358, 849 N.Y.S.2d 140 [4th Dept. 2007], lv denied 12 N.Y.3d 715, 2009 WL 1810907 [2009] ). We therefore see no reason to disturb the court's finding of neglect (see Makayla L.P., 92 A.D.3d at 1249, 939 N.Y.S.2d 680 ). Inasmuch as petitioner made out a prima facie case of derivative neglect, we reject the father's further contention that the court erred in denying his motion to dismiss at the close of petitioner's case (see Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1493, 41 N.Y.S.3d 341 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 628934 [2017] ).
Finally, we reject the father's contention that he was denied effective assistance of counsel. "The record, viewed in its totality, establishes that the father received meaningful representation" ( Matter of Heffner v. Jaskowiak, 132 A.D.3d 1418, 1418, 17 N.Y.S.3d 556 [4th Dept. 2015] ; see Matter of Deon M. [Vernon B.], 155 A.D.3d 1586, 1586–1587, 63 N.Y.S.3d 786 [4th Dept. 2017], lv denied 30 N.Y.3d 910, 2018 WL 772534 [2018] ; cf. Matter of Martin v. Martin, 46 A.D.3d 1243, 1246–1247, 848 N.Y.S.2d 433 [3d Dept. 2007] ).