Suffolk County Dept. of Social Services on Behalf of Michael V. v. James M.

• Citation: 591 N.Y.S.2d 202,188 A.D.2d 603
• Parties: In the Matter of SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of MICHAEL V. (Anonymous), etc., Respondent, v. JAMES M. (Anonymous), Appellant.
• Decision Date: 21 December 1992
• Court: New York Supreme Court — Appellate Division

Page 202

591 N.Y.S.2d 202

188 A.D.2d 603

In the Matter of SUFFOLK COUNTY DEPARTMENT OF SOCIAL

SERVICES on Behalf of MICHAEL V. (Anonymous), etc., Respondent, v. JAMES M. (Anonymous), Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 21, 1992.

John F. Clennan, Ronkonkoma, for appellant.

Robert W. Schmidt, County Atty., Hauppauge (Jeffrey A. Adolph, of counsel), for respondent.

John F. Middlemiss, Jr., Hauppauge (Anthony DiSanti, of counsel), Law Guardian on behalf of the child.

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a child protective proceeding pursuant to Family Court Act article 10, the father appeals, as limited by his notices of appeal and brief, from (1) an order of the Family Court, Suffolk County (Snellenburg, J.), entered February 28, 1991, as amended November 6, 1991, which granted the motion of the Suffolk County Department of Social Services for summary judgment as to the findings of fact, declaring the child Nicholas to be an abused child and the child Michael to be a neglected child, and (2) a dispositional order of the same court, entered March 14, 1991, which directed the appellant to "have no contact whatsoever" with the children.

ORDERED that the appeals from the order entered February 28, 1991, as amended November 6, 1991, is dismissed, without costs or disbursements, as superseded by the order of disposition entered March 14, 1991 (see, Matter of Nichole B., 175 A.D.2d 205, 572 N.Y.S.2d 346; Matter of Linda K., 132 A.D.2d 149, 521 N.Y.S.2d 705); and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

In the instant proceeding, the Suffolk County Department of Social Services (hereinafter DSS) alleged that the appellant abused his stepchildren Nicholas and Michael. The basis of these charges was information obtained with the aid of the Suffolk County District Attorney's office, which had secured an indictment against the appellant charging him with multiple counts of sodomy in the first degree and sexual abuse in the first degree. Following a jury trial, the appellant was convicted of multiple counts of sodomy in the first degree, based upon charges that he repeatedly forced Nicholas to perform oral sex upon him, and that he placed Nicholas's penis in his mouth. The appellant was sentenced to concurrent indeterminate terms of 12 1/2 to 25 years imprisonment for those crimes. This judgment of conviction has since been affirmed by this court.

Upon the appellant's conviction in the County Court, the DSS moved for summary judgment in the instant proceeding, arguing, inter alia, that his conviction for acts of sodomy perpetrated against Nicholas was conclusive proof of the allegations of abuse pending before the Family Court. Furthermore, the DSS moved for summary judgment as to Michael, alleging that the appellant's abuse of Nicholas established that Michael was a neglected child (see, Family Ct Act § 1046[a][i].

The Family Court granted the DSS's motion, and also issued an order of protection prohibiting the appellant from committing acts of physical violence against the children, and directing him to remain away from the children's home. By dispositional order dated March 14, 1991, the Family Court directed the appellant to have "no contact whatsoever with the children * * * including no telephone contact and no written communication of any kind".

Contrary to the appellant's contentions, we find that the Family Court properly awarded summary judgment to DSS on the issue of whether the children were abused and/or neglected. The appellant was convicted in County Court of multiple counts of sodomy against Nicholas. The same conduct was alleged in the abuse petition filed in regard to Nicholas. The appellant's criminal conviction is conclusive proof as to the finding that Nicholas is an abused child (see, Matter of Rosie B., 154 A.D.2d 900, 546 N.Y.S.2d 56; Matter of Denise J., 133 A.D.2d 687, 519 N.Y.S.2d 857; Matter of Princess CC., 120 A.D.2d 917, 502 N.Y.S.2d 554). The appellant raised no genuine factual issues in opposition to the summary judgment motion. Thus, summary judgment was properly granted to the petitioner (see, Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791; see also, Matter of JLP, 774 P.2d 624 [Wyo]; People in Interest of S.B., 742 P.2d 935 [Colo]. Moreover, under the circumstances of this case, the finding that the appellant sexually abused...