Dutchess County Dept. of Social Services on Behalf of Douglas E., III v. Douglas E., Jr.

• Decision Date: 29 March 1993
• Citation: 595 N.Y.S.2d 800,191 A.D.2d 694
• Parties: In the Matter of the DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of DOUGLAS E. (Anonymous), III, Appellant, v. DOUGLAS E. (Anonymous), Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 800

595 N.Y.S.2d 800

191 A.D.2d 694

In the Matter of the DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of DOUGLAS E. (Anonymous), III, Appellant, v. DOUGLAS E. (Anonymous), Jr., Respondent.

Supreme Court, Appellate Division Second Department.

March 29, 1993.

Ian MacDonald, County Atty., Poughkeepsie (Jennifer L. Deppa, on the brief), for appellant.

James V. Brands, Poughkeepsie, for respondent.

Michael T. Dahowski, Poughkeepsie, Law Guardian on behalf of the child.

Before THOMPSON, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner Dutchess County Department of Social Services appeals from an order of the Family Court, Dutchess County (Bernhard, J.), entered April 23, 1992, which granted the respondent father's motion to dismiss the neglect petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the motion to dismiss is denied, the petition is reinstated, and the matter is remitted to the Family Court, Dutchess County, for further proceeding with respect to the petition.

Generally, in cases of alleged child abuse or neglect, it is recognized that "[a] child need not sustain a serious injury in order to justify a finding that he or she has been abused. It is sufficient to show that the child was subjected to a substantial risk of physical injury which would be likely to cause * * * protracted impairment of his physical or emotional health" (Matter of Angela C., 183 A.D.2d 767, 768, 583 N.Y.S.2d 499). In cases of derivative abuse or neglect, there is no per se rule that the child of a parent who abuses one sibling is automatically a derivatively abused or neglected child (see, Matter of Rasheda S., 183 A.D.2d 770, 586 N.Y.S.2d 522). The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent's understanding of the duties of parenthood (Matter of Rasheda S., supra; Matter of Lynelle W., 177 A.D.2d 1008, 578 N.Y.S.2d 313; Matter of James P., 137 A.D.2d 461, 525 N.Y.S.2d 38; Matter of Cruz, 121 A.D.2d 901, 503 N.Y.S.2d 798; Matter of Christina Maria C., 89 A.D.2d 855, 453 N.Y.S.2d 33). Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused one child will place his or her other children at substantial risk of harm (see, Matter of Ely P., 167 A.D.2d 473, 562 N.Y.S.2d 146).

In the instant case, the respondent father admitted that he repeatedly sexually abused and sodomized his 10-year-old daughter for his sexual gratification over a period of five to six months. In the statement he made to police following his arrest, he admitted that he hugged, kissed, and tickled his daughter in his bed, that he licked her breasts and vagina, and that he inserted his finger in her anus. He reported to police that his daughter was a willing participant who "would be happy and smile, and say it felt good when I licked her vagina". These encounters would leave him in a state of sexual excitement after which, he claimed, he would masturbate alone in the bathroom. The respondent's daughter, however, made statements to a caseworker indicating that her father masturbated in her presence and she reportedly resisted her father's advances and "struggled every time". These revelations clearly support the allegations that the respondent father's judgment and understanding of his...