NY court: Sex offender not threat to his children

5-8-2011 New York:

ALBANY, N.Y. — New York's top court ruled Thursday that a man designated a sex offender for patronizing an underage prostitute hasn't been shown to be an imminent threat to his own five children and that his return home did not constitute child neglect by him and his wife.

The Court of Appeals said evidence presented by Dutchess County social services workers against the man based on his 2007 convictions was insufficient for a family court judge to force him out of his Poughkeepsie home for the next three years.

After spending a year in jail, the man identified in court only as James C. pleaded guilty in Manhattan to second-degree rape involving a 14-year-old and to patronizing an underage prostitute. He was sentenced to time served and went home.

A midlevel court reversed the family court decision in 2010. Though the wife and children moved to Canada, the top court said Thursday's ruling still could be of some consequence because they may return.

"No doubt there are circumstances in which the facts underlying a sex offense are sufficient to prove neglect," Judge Carmen Beauchamp Ciparick wrote. "Where, for example, sex offenders are convicted of abusing young relatives or other children in their care, their crimes may be evidence enough."

However, the judges "reject any presumption" that an untreated sex offender residing with his or her children is a neglectful parent, Ciparick wrote. Five other judges agreed.

Instead, under New York's Family Court Act, they cited two findings that required them to determine neglect. The first is "proof of actual (or imminent danger of) physical, emotional, or mental impairment to the child." Second is the danger "must be a consequence of the parent's failure to exercise a minimum degree of parental care."

The court noted the statutory test is not best or ideal care for children, but a minimum degree.

The Dutchess County Department of Social Services filed neglect petitions against both parents alleging the father was an untreated level-three sex offender, deemed likely to reoffend, whose crimes involved young teens, and that the mother failed to protect the children from the father. The caseworker acknowledged having no evidence the father was sexually inappropriate with any of his children, who then ranged in age from 4 to 14.

In a concurring opinion, Judge Victoria Graffeo said this was not an area of law "amenable to bright-line rules," but requires establishing neglect based on particular facts and circumstances proven at a hearing. She said there were gaps in the information the county presented, with no evidence detailing the facts underlying the father's convictions or from the hearing where he was designated a level-three sex offender, but that he was reluctant when questioned to provide any details.

"The facts underlying that finding may have supported an inference that the father posed a threat of harm — but they do not appear in the record of this neglect proceeding," Graffeo wrote. She doubted the court's ruling will have broad value as a precedent. ..Source.. Wall Street Journal