Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel) for Rinell S., respondent.
Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for Wendy W., respondent.
Karen Freedman, Lawyers For Children Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
TOM, J.P., RENWICK, ANDRIAS, RICHTER, GISCHE, JJ.
Opinion Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about May 5, 2014, which, after a fact-finding hearing, dismissed a petition alleging that respondent father and respondent mother neglected the subject child by failing to exercise a minimum degree of care in providing the subject child with proper supervision and guardianship, unanimously reversed, on the law, without costs, the petition granted, and the matter remanded to Family Court, New York County for a dispositional hearing. The Family Court also erred in dismissing the neglect petition against the mother. The mother acknowledged that she was aware of the father's sex offense conviction, and that he was a registered sex offender. She nevertheless allowed the father to act as the child's sole caretaker and to have unsupervised access to the child (see Matter of Destiny EE. [Karen FF.], 90 A.D.3d 1437, 1443, 936 N.Y.S.2d 703 [3rd Dept.2011], lv. dismissed 19 N.Y.3d 856, 946 N.Y.S.2d 561, 969 N.E.2d 780 [2012] ).
Contrary to the father's and mother's contentions, the Court of Appeals decision in Matter of Afton C. (James C.), 17 N.Y.3d 1, 926 N.Y.S.2d 365, 950 N.E.2d 101 (2011) does not warrant a dismissal of the petition. In that case, the Court found that the fact that the father was a risk-level 3 sex offender who had never sought sex offender treatment, and was living in the same home as the subject children, was insufficient to establish neglect (id. at 6, 926 N.Y.S.2d 365, 950 N.E.2d 101 ). The Court further noted, however, that “there are circumstances in which the facts underlying a sex offense are sufficient to prove neglect. Where, for example, sex offenders are convicted of abusing young relatives or other children in their care, their crimes may be evidence enough” (id. at 11, 926 N.Y.S.2d 365, 950 N.E.2d 101 ). Here, the father's sexual abuse of his young son and young niece is sufficient evidence to prove neglect of the subject child, especially when coupled with the father's refusal to accept responsibility for his crime, and distinguishes this case from Afton C.
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