On July 10, 2015 the Onondaga County Department of Children and Family Services filed a petition seeking an adjudication that S. P., born on XXXX, 2015, is a child neglected by his parents B.P. and S. P.

The mother suffers from untreated mental health issues.

The mother was unable to appropriately care for the child upon the child's birth.

The father was adjudicated to have neglected four children in his care based upon his admission that the residence was cluttered and created a danger to the children's health and safety.

The father was adjudicated to have abused a child in his care and the Court found that the father engaged in sexual contact with the child on numerous occasions. By the same order the father was adjudicated to have neglected three other children under his care.

The father did not complete mandated sex offender treatment as directed by the Court.

The father was adjudicated to have derivatively neglected a child born after the abuse finding as he did not complete Court ordered services.

The Appellate Division Fourth Department affirmed an order of the Jefferson County Family Court directing that the father have no parenting time with his two biological children.

Testimony was taken on December 10th, 2015, January 21st, January 22nd, and concluded on January 26, 2016. The Attorneys were directed to submit written summations and memoranda of law for the Court's consideration by February 19, 2016 which the Court did receive and review.

Ms. S. F. testified that she has been an investigative caseworker employed at the Onondaga County Department of Children and Family Services (hereinafter referred to as the "County") for the past three years and was previously employed by the Oswego County [*2]Department of Social Services.

Caseworker F. testified that she was assigned to the case in July of 2015 when the County received a hotline call concerning the safety of the child S. P. Caseworker F. testified she commenced an investigation and determined that Ms. P. has untreated mental health issues and that Mr. P. was an untreated Level 3 sex offender.

Ms. F. testified that she subsequently received correspondence dated July 9, 2015 from Dr. M. C., an attending neonatologist at U. Hospital, expressing significant concerns as to Ms. P.'s ability to care for the child. The Court received Dr. C.'s letter into evidence, without objection, as well as other certified records from U. Hospital (Petitioners Exhibit No.1). Caseworker F. further testified that some of the concerns contained in the correspondence were Ms. P.'s inability to keep track of infant feedings, being rough with the child and cursing at him. Dr. C.'s letter also expressed fear' for the child in the event Ms. P. was allowed to independently care for the newborn.

Ms. F. testified and her progress notes state that Ms. P. was convicted of Burglary in the Second Degree in 2011 and was incarcerated at the B. H. Correctional Facility until 2014. Ms. F. testified that Ms. P. expressed suicidal ideations, engaged in self-mutilation, cutting, and other forms of self-abuse while incarcerated. Ms. F. further testified that she was unaware if these issues have been addressed.

The Court received Ms. F.'s Investigation Progress Notes into evidence without objection from counsel (Petitioners Exhibit #2). The Court will note that upon review of the entries contained in Petitioner's Exhibit #2, Ms. P. also has been diagnosed with a bipolar disorder and a form of depression.

Ms. F.'s case notes also state that the nurses on staff at the hospital did much of the feeding and caring for the child after his birth and a nurse's aide was placed in Ms. P.'s room to ensure the child was properly cared for.

Ms. F. further testified that upon interviewing Mr. P. he admitted to an abuse adjudication when he sexually abused his girlfriend's six year old daughter with whom he previously resided with. Mr. P. was also criminally prosecuted for the sexual abuse and sentenced to four years of incarceration. Ms. F. also testified that Mr. P. was found to have derivatively neglected three other children as a result of the abuse adjudication, one of whom was his biological child.

Caseworker F. testified that Mr. P. was subsequently found to have derivatively neglected an additional biological child as he had not completed sex offender treatment as required by the Family Court.

On cross-examination by the attorney for the child, Caseworker F. gave further testimony that Mr. P. pled guilty to sexually abusing a six year old child. Ms. F. testified that Mr. P. told her that the abuse occurred due to the Department of Social Service's failure to intervene earlier to provide services and that Mr. P. believed the child initiated the sexual contact. The caseworker also testified that during a conversation on July 8, 2015 Mr. P. claimed that he should have been designated a Level 2 sex offender as opposed to his Level 3 sex offender designation.

The Court will also note that the caseworker's testimony and the exhibits received into evidence reflect that Mr. P. was arrested on or about December 1, 2004 for Rape in the First Degree and pled guilty to Sex Abuse in the First Degree on June 17, 2005 and was sentenced to a period of four years of incarceration. Further the Court will note that upon Mr. P. violating [*3]parole in 2009 he served an additional term of incarceration.

On cross-examination Ms. F. further testified Mr. P. had a prior indicated report in 2003 whereby children under his care were residing in deplorable conditions. The Court will note that Ms. F.'s progress notes state that Mr. P. has a total of eight prior indicated reports against him.

The Court finds Ms. F.'s testimony extremely credible, reliable and insightful.

Ms. P. testified that she gave birth to S. P. on XXXX, 2015 and remained in the hospital through XXXX, 2015. Ms. P. stated that upon the child being born she would feed, change, and bathe the child in an appropriate manner. Ms. P. denied ever being rough with the child or directing foul language toward the child. Ms. P. stated upon being hospitalized she only used vulgar language during the birth of the child which was directed at Mr. P. She also testified she left the hospital for a few short periods, but only to smoke cigarettes.

Ms. P. testified that she attends regular appointments with her treating psychiatrist and her therapist. She further testified that she is prescribed medication but could not recall the types of medication she takes.

The Court received certified records from the H. Psychiatric Center, without objection from counsel, which contained progress notes regarding Ms. P.'s mental health treatment. The progress notes reflect that Ms. P. has a long history of mental health issues and prior to her incarceration in 2011 she was admitted a number of times for psychiatric treatment at two local hospitals. The records also contain entries that while incarcerated Ms. P. was admitted to a Residential Crisis Treatment Program over fifty times due to threats of self-harm. Another entry states that a month prior to the birth of the child the mother had made only minimal progress' implementing strategies to increase her patience with situations out of her control.

On cross-examination Ms. P. testified that she is XX years old and has been married to Mr. P. for two years and is committed to their relationship. Ms. P. denied any physical or mental abuse by Mr. P. or being subject to any manipulation by him. Ms. P. further testified that she suffers from a borderline personality disorder diagnosis.

Ms. P. further testified that she was aware of Mr. P.'s sex offender status prior to their marriage and believed his offense involved "hands to pants touching" of a minor. She also stated that it was not until the testimony elicited during these proceedings that she had knowledge of the facts leading to Mr. P.'s designation as a sex offender and his abuse and neglect adjudications. Ms. P. also testified that she believed Mr. P. hates himself for his prior sexual conduct and testified that their child would not be in danger under Mr. P.'s care.

The Court finds the mother's testimony to be generally inconsistent, lacking in overall credibility and that substantial portions were unreliable. The Court also notes that Ms. P.'s demeanor during her testimony was at times volatile and that other portions were subdued in tone.

Mr. P. testified that he accompanied Ms. P. upon her being admitted to the hospital on July 4, 2015. He also testified that upon the child's birth he spent time at the hospital visiting and caring for the child.

Mr. P. stated he pled guilty to sexually abusing his then girlfriend's six year old daughter in 2005 and was then incarcerated at the C. Correctional Facility for a period of four years. Mr. P. also testified that while incarcerated he took a sex offender treatment course for eight months and a two week alcohol abuse treatment course.

Having reserved decision, the Court sustains the County's timely objection at trial as to the receipt of Respondent's Exhibits "A" and "B" into evidence. The Court also finds neither of the documents meets the requisite criteria for admissibility pursuant to §1046(b) (iii).

On cross-examination by the attorney for the presentment agency Mr. P. admitted to allegations (b), (c), (d), and (e) of the petition. On cross-examination by the attorney for the child Mr. P. testified that he pled guilty to sexually abusing a six year old child. Mr. P. testified that he has been treated for this offense. Mr. P. also testified to engaging in self-harming behaviors and an attempted suicide while incarcerated at the C. Correctional Facility.

Mr. P. further testified that shortly after being released from the C. Correctional Facility he violated his parole by possessing pornographic material. He then returned to state prison and was released in 2011 from the M.S. Correctional Facility.

The Court finds Mr. P.'s testimony on cross-examination as being forthright and his overall demeanor while testifying was "matter of fact".

Section 1012(f)(i) of the Family Court Act defines a neglected child as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the parent or other person legally responsible for care to exercise a minimum degree of care in a number of areas, including in providing the child with proper supervision or guardianship and by unreasonably inflicting or allowing to be inflicted harm.

Having had the unique opportunity to see, hear, and assess the witnesses and proofs adduced at trial and to review the pleadings and papers before it, the Court makes the following findings of fact based upon the material, relevant, credible, and competent evidence in the record.

The Court finds that B. P. and S. P. are persons legally responsible for the subject child as defined in Section 1012 (g) of the Family Court Act.

The Court takes judicial notice of the prior abuse and neglect adjudications by the Jefferson County Family Court under Dockets NN-XXXX-XXXX-05, NN-XXXX-XXXX-03 and NN-XXXX-05 regarding the respondent.

Family Court Act 1046(a)(i) states that adjudications of abuse, neglect and prior misconduct provide a sound basis for a finding that a child is in imminent danger of abuse or neglect. (Matter of Christopher C., 73 A.D. 1349) The statute provides "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent". A determinative factor is whether the prior conduct is so proximate in time to the proceeding that it can be reasonably concluded that the condition still exists. (In Re Nyjaiah, 72 AD3d 567, In Re Chelsea M. 61 AD3d 1030)

The Court finds that the respondent's prior neglect and abuse adjudications and the conduct upon which they were based, as well as the Jefferson County Family Court Article 6 decision, are sufficiently proximate in time. The Appellate Division, Fourth Department has previously ruled that even a 17 year gap between a prior neglect adjudication and the birth of a subsequent child does not preclude an adjudication of derivative neglect. (Matter of Ahmad H. 46 AD3d 1357)

The Court finds that Mr. P., upon his own admission, sexually abused a six year old child, which resulted in a sentence of incarceration from 2005 to 2009 at the C. Correctional Facility. Upon his own admission Mr. P. violated his parole by possessing pornographic material and returned to prison until 2011. The Court finds the testimony of Mr. P. as to his sex offender treatment programs while incarcerated to be inadequate, conclusory and provides no insight as to the scope of the rehabilitation programs he may have engaged in. Based upon the testimony and evidence presented the Court finds that there is a lack of credible evidence that Mr. P. has addressed or ameliorated the conduct that led to the prior adjudications of neglect and abuse. (Matter of Ahmad H. 46 AD3d 1357, Matter of Javon J. 51 AD3d 1395, Matter of Ilonni I., 119 AD3d 997)

This Court finds based upon the credible evidence and testimony that Mr. P.'s sexual abuse of a six year old child under his care, his designation as a Level 3 sex offender as a result of his criminal conviction as well as his subsequent conduct clearly demonstrates imminent danger to the child exists. The Court further finds that Mr. P.'s parental judgment so impaired that it creates a substantial risk of harm for any child left in his care. (In the Matter of Neveah A.A., 124 AD3d 938).

The reliance of Respondent's counsel in their written summations upon the Court of Appeals decision in Matter of Afton C. 17 NY3d 1, seeking dismissal of the petition is unwarranted. At trial, the petitioner has not relied primarily upon Mr. P.'s Level 3 sex offender designation as the basis for its petition. The Court finds applicable the Appellate Division, Fourth Department's holding that the Afton decision does not preclude a finding of neglect where additional factors are present, such as a criminal conviction and prior abuse adjudications. (Matter of Makayla L.P. 92 AD3d 1248)

The Court also takes judicial notice of the recent Appellate Division, Fourth Department decision affirming an order of the Jefferson County Family Court after trial denying Mr. P. any visitation with two of his biological children. (Matter of S.P. v. T.C., 129 AD3d 1555) The Court will note that generally the complete denial of parenting time is ordered only when substantial proof exists that such contact would be harmful to the child. (Culver v. Culver 82 AD3d 1296)

The denial of parenting time pursuant to a Family Court Act Article 6 order of custody is thus, in conjunction with the facts proven in this proceeding, legally sufficient to sustain a finding of derivative neglect as to this specific allegation.

The Court finds Ms. P. to have neglected the child S. P., based upon the testimony and evidence received which establishes by a preponderance of the evidence her inability to appropriately care for the child. The Court finds persuasive and credible evidence was presented to sustain the allegation that Ms. P. used profanities toward the child, was rough with the child, and did not comprehend on how to appropriately feed or care for the child after his birth. The Court finds that Ms. P.'s conduct demonstrates a failure to exercise a minimum degree of care for the child as defined in Family Court Act 1012(f)(i).

The Court recognizes and finds encouraging that Ms. P. is receiving mental health treatment. However, the Court finds that Ms. P.'s mental health problems are of a severe nature and have not been sufficiently ameliorated. (Matter of Anthony TT 80 AD3d 902, In Re Joseph MM, 91 AD3d 1077).

The testimony and evidence establishes by a preponderance of the evidence that the mother suffers from mental health conditions which have not been adequately addressed at the time of the filing of the petition.

In conclusion, the Court finds that the presentment agency has met its burden of proof against both parents and sustains the allegations set forth in paragraphs (a), (b), (c), (d), and (e) of the petition. The Court finds that the child subject to this proceeding is a neglected child as defined in the Family Court Act. The Court will schedule a date and time for a dispositional hearing at the appearance scheduled for March 22, 2016 at 2:00 PM.

The attorney for the Onondaga County Department of Children and Family Services is directed to submit an order on notice to counsel, incorporating the findings and conclusions of this Decision within 20 days of the disposition of this matter.