Saratoga Cnty. Dep't of Soc. Servs. v. Thomas II. (In re Joanne)

• Decision Date: 21 November 2012
• Citation: 100 A.D.3d 1204,955 N.Y.S.2d 228,2012 N.Y. Slip Op. 07915
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of JOANNE II. and Others, Alleged to be Abused Children. Saratoga County Department of Social Services, Respondent; Thomas II., Appellant. (Proceeding No. 1.) In the Matter of Joanne II. and Others, Alleged to be Neglected Children. Saratoga County Department of Social Services, Respondent; Thomas II., Appellant. (Proceeding No. 2.)

100 A.D.3d 1204
955 N.Y.S.2d 228
2012 N.Y. Slip Op. 07915

In the Matter of JOANNE II. and Others, Alleged to be Abused Children.
Saratoga County Department of Social Services, Respondent;
Thomas II., Appellant. (Proceeding No. 1.)
In the Matter of Joanne II. and Others, Alleged to be Neglected Children.
Saratoga County Department of Social Services, Respondent;
Thomas II., Appellant. (Proceeding No. 2.)

Supreme Court, Appellate Division, Third Department, New York.

Nov. 21, 2012.

Cynthia Feathers, Glens Falls, for appellant.

Stephen M. Dorsey, Saratoga County Department of Social Services, Ballston Spa (Mary Beth Hynes of counsel), for respondent.

Amy J. Knussman, Ballston Spa, attorney for the children.

Before: MERCURE, J.P., MALONE JR., KAVANAGH, STEIN and GARRY, JJ.

GARRY, J.

[100 A.D.3d 1204]Appeals from two orders of the Family Court of Saratoga County (Jensen, J.), entered September 14, 2011, which granted petitioner's applications, in two proceedings

[955 N.Y.S.2d 229]

pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be abused and/or neglected.

Respondent is the father of four children (born in 1999, 2002, 2006 and 2008). In February 2011, petitioner commenced these Family Ct. Act article 10 proceedings alleging that respondent had sexually abused the child born in 2006 (hereinafter the child) and had thereby derivatively abused and/or neglected the three other children. Following fact-finding and dispositional hearings, Family Court [100 A.D.3d 1205]sustained the petitions and, among other things, ordered respondent to be placed under petitioner's supervision for one year and prohibited contact with any of the children until he successfully completed sex offender treatment. Respondent appeals, limiting his challenge to the determinations of derivative abuse and neglect as to the children born in 1999 and 2002, and the bar of contact with these two children.

As respondent contends, proof that one child has been abused is admissible on the issue of the derivative abuse or neglect of other children, but “typically may not serve as the sole basis for [such] a finding” ( Matter of Cadejah AA., 33 A.D.3d 1155, 1157, 823 N.Y.S.2d 278 [2006] [internal quotation marks and citation omitted]; seeFamily Ct. Act § 1046[a][i]; Matter of Michael N. [Jason M.], 79 A.D.3d 1165, 1167, 911 N.Y.S.2d 709 [2010] ). However, evidence of the abuse of one child can suffice to establish derivative abuse or neglect when the conduct at issue “evidence[s] fundamental flaws in the respondent's understanding of the duties of parenthood” so profound as to place any child in his or her care at substantial risk of harm ( Matter of Evelyn B., 30 A.D.3d 913, 915, 819 N.Y.S.2d 573 [2006],lv. denied7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 [2006] [internal quotation marks and citations omitted]; see Matter of Kole HH., 61 A.D.3d 1049, 1053, 876 N.Y.S.2d 199 [2009],lv. dismisse...