In re Paige WW.
Respondent Charles XX. (hereinafter the father) had five children with his former wife. The wife also had older children from a previous relationship who did not live in her household, including respondent Tina WW. (hereinafter the mother).1 In 2002, the children of the father and the wife were removed as a result of child protective proceedings commenced in Dutchess County.2 In 2005, the Dutchess County Family Court (hereinafter the 2005 court) determined that while the children had been in the care of the father and wife, three of them had been sexually abused and neglected, and the other two had been derivatively neglected. The father subsequently surrendered his parental rights to all but one of these children, and none of them lived with him again. In 2006, the wife died and, shortly thereafter, the father and the mother began living together. Paige WW. (hereinafter the child) was born to them in October 2007.
In April 2008, petitioner commenced the current neglect proceedings, alleging, among other things, that the father had a history of sexual abuse and had not engaged in court-ordered treatment. Family Court accepted admissions of neglect from the mother and conducted a fact-finding hearing with respect to the father. Thereafter, the court entered an order adjudicating the child as neglected by both parents, and issued an order of
The father contends that the evidence was insufficient to support the derivative neglect determination. He was the only witness during the fact-finding hearing, and his testimony focused on the events leading to the decision and order of the 2005 court (hereinafter the 2005 decision). He denied that he had sexually abused his other children. Family Court rejected this testimony and determined, based upon the 2005 decision, that he did sexually abuse his other children. The court further found that by denying this abuse and by failing to participate in treatment ordered by the 2005 court, the father had derivatively neglected the child in this proceeding. The father contends on appeal that the determination was based on a mistaken reading of the 2005 decision, that he did not sexually abuse his other children, and, further, that the evidence of his current circumstances was insufficient to demonstrate any risk of harm to the child.
Proof of a parent‘s abuse or neglect of a child “shall be admissible evidence” as to the parent‘s neglect of another child (
We further find that the prior determination of abuse and neglect was “sufficiently proximate in time such that it can be reasonably concluded that the conditions still exist” (Matter of Suzanne RR., 35 AD3d 1012, 1013 [2006], quoting Matter of Hunter YY., 18 AD3d 899, 900 [2005]). Although the acts of abuse and neglect that led to the 2005 decision took place six years or more before the current proceedings were filed, there is no “bright-line, temporal rule beyond which we will not consider older child protective determinations” (Matter of Evelyn B., 30 AD3d at 915; but see Matter of Natasha RR., 27 AD3d 788, 789 [2006]). While the evidence as to whether the conditions that attended the 2005 decision still prevailed in 2008 is sparse, the record does reveal that the father did not comply when he was ordered in 2005 to participate in sex offender programming. Not until these proceedings were filed in 2008 did he obtain the required evaluation and, at the time of the fact-finding hearing, he had just begun to participate in programming (cf. Matter of Jemila PP., 12 AD3d 964, 966 [2004]). As to the substance abuse that contributed to his prior acts of abuse and neglect, he testified that he was successfully participating in substance abuse training and had abstained since 2007 from the use of illegal drugs; however, he also testified that this participation was an involuntary condition of his parole for an unidentified offense. Moreover, the father‘s failure to accept responsibility for the se-
However, the order of protection barring the father from all contact with the child until she reaches the age of 18 is not justified by the record. Family Court entered the order over the father‘s objection and upon the request of the Law Guardian, who argued that the father was not entitled to the rights of a biological parent because he was not married to the mother and had not been adjudicated to be the child‘s father. However, the petition identified him as the child‘s father, and both the father and the mother testified without contradiction that he was the father. While an in-court admission of paternity is not conclusive as a matter of law, it does constitute evidence of paternity, and that evidence was uncontradicted (see Matter of Howard v Robinson, 32 AD2d 837 [1969]; 2-19 New York Civil Practice: Family Court Proceedings § 19.13). Further, the record reveals that before the child‘s removal, the father acknowledged paternity by living with her and supporting her (see
Finally, the father objects to the permanency hearing order on the ground that Family Court should have adjourned the permanency hearing to enable him to be present. However, the father‘s counsel was present and, without requesting an adjournment, indicated that the father objected to the permanency plan. In the absence of a request for an adjournment, and given the strict statutory timetable within which permanency hearings must be completed (see
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur.
Ordered that the order entered January 16, 2009 is modified, on the law, without costs, by remitting the matter to the Family Court of Columbia County for further proceedings not inconsistent with this Court‘s decision and, pending such proceedings, the order of protection shall remain in effect as a temporary order, and, as so modified, affirmed. Ordered that the order entered March 6, 2009 is affirmed, without costs.