In re Hannah U.
Malone Jr., J.
Respondent is the father of a daughter (born in 2005) and a son (born in 2008). In 2010, petitioner, the attorney for the children, commenced this proceeding against respondent alleging that he had neglected the children because he was a sex offender who had refused treatment and had violated the terms of his probation.1 Respondent and the Clinton County Department of Social Services (hereinafter DSS) opposed the petition and moved to dismiss it. Following a fact-finding hearing,2 Supreme Court, among other things, adjudicated the subject children to be neglected by respondent. Respondent appeals.
As is relevant here, petitioner, as the party seeking to establish neglect, bore the burden of establishing, by a preponderance of the evidence, first that the children’s “physical, mental or emotional condition [was] impaired or [was] in imminent danger of becoming impaired” and, second, that such harm was
Initially, contrary to petitioner’s contentions, respondent’s status as a registered risk level II sex offender does not constitute per se neglect or otherwise create a presumption of neglect (see Matter of Afton C., 17 NY3d at 10). Moreover, the evidence does not support a finding that respondent is an untreated sex offender inasmuch as the record shows that he successfully completed sex offender treatment programs in 2007 and 2008, more than two years prior to the filing of the instant neglect petition, and there is no suggestion that he has committed any further sex-related offenses since the offense in 2004. Supreme Court’s conclusion that respondent did not meaningfully benefit from his participation in those programs was belied by testimony of one of his counselors, and was based solely upon the court’s own belief that the counselors in the most recent program attended by respondent, to which he was referred by DSS, were not sufficiently qualified to run a meaningful or successful program. The court’s finding in that regard is not supported by any evidence in the record.
As for petitioner’s allegation that respondent violated the terms of his probation, it was undisputed that, despite a term of his probation that prohibited him from consuming alcohol, respondent was convicted of driving while ability impaired in 2006 and driving while intoxicated in 2007. However, this conduct occurred before the 2007 neglect proceeding, and there was no evidence that these convictions were not already submitted
The record reflects that, other than the incident regarding his falsification of the attendance slips, respondent’s conduct since the 2007 neglect proceeding has improved, and he has not been under DSS supervision since 2008 or probation supervision since 2009—more than one year prior to the instant neglect petition. As petitioner conceded, while respondent was under DSS supervision, he complied with all court orders and recommendations. Notably, DSS was aware of the overall family situation and, as early as 2009, approved respondent’s unsupervised visitation with his children. In 2010, DSS approved of his taking custody of the children and his stepchildren and, in fact, actively opposed the instant petition. Under the particular circumstances presented here, while respondent’s overall conduct historically has been, at times, troubling, petitioner has failed to demonstrate that such conduct constituted the neglect of his children.
Peters, P.J., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as found that respondent neglected his children; petition against respondent dismissed; and, as so modified, affirmed.