In this case brought against an anonymous defendant, a New York father had pleaded guilty to charges related to his having sex with a prostitute under the age of 15. He was released on time served and not required to participate in sex offender treatment. The state Sex Offender Registration Act (SORA) required him to register as an untreated level-three sex offender. He returned home to live with his wife and five children, who were between the ages of four and fourteen.
The Dutchess County Department of Social Services (DSS) filed neglect petitions against both the father and mother pursuant to Article 10 of the Family Court Act. The DSS’s theory was that, because the father was an “untreated” sex of-fender whose crimes involved minors, he was a danger to his children and the mother had “failed to protect the children” from their father by allowing him to live with them.
At a fact-finding hearing, the DSS caseworker testified that he filed the petition based upon the father’s SORA registration, without any specific knowledge about the crimes or any evidence that the father had been sexually inappropriate with his own children. The father testified that he had pleaded guilty to the prostitution charge based on the advice of his attorney and alleged that he had sex with the prostitute only after she was 18, but exercised his Fifth Amendment rights when asked whether he had ever had sex with minors. The Family Court drew a negative inference from the father’s denial of the crimes and his failure to testify, concluding that both parents had neglected their children. The parents then appealed.
The Appellate Division reversed the Family Court, denied the neglect petitions and dismissed the proceedings, holding that “the mere fact that a designated sex offender resides in the home is not sufficient to establish neglect absent a showing of actual danger to the children.” It also held that “the evidence was insufficient to establish that the father posed an imminent danger to the children.” The DSS appealed.
The Court of Appeals upheld the decision of the Appellate Division, rejecting “any presumption that an untreated sex offender residing with his or her children is a neglectful parent,” even when the sex offender’s victim was a minor. The DSS had failed to prove that there was an actual danger to the children caused by a parent’s failure to exercise a minimum degree of parental care. Since the father had not been shown to pose an actual danger to his children, the neglect petition against the mother for allowing the father to live with his children also failed. See: In the Matter of Afton C., 17 N.Y.3d 1, 950 N.E.2d 101 (N.Y. 2011).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
In the Matter of Afton C.
|Cite||17 N.Y.3d 1, 950 N.E.2d 101 (N.Y. 2011)|
|Level||State Court of Appeals|