                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 7, 2016                       521051
________________________________

In the Matter of ALEXANDER TT.
   and Others, Alleged to be
   Abused and/or Neglected
   Children.

TOMPKINS COUNTY DEPARTMENT OF                MEMORANDUM AND ORDER
   SOCIAL SERVICES,
                    Respondent;

HORACE VV.,
                    Appellant.
________________________________


Calendar Date:    May 26, 2016

Before:    Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                              __________


     Pamela Bleiwas, Ithaca, for appellant.

      Jennifer Donlan-Fitzgibbon, Tompkins County Department of
Social Services, Ithaca, for respondent.

     Donna Chin, Ithaca, attorney for the children.

                              __________


Rose, J.

      Appeals from two orders of the Supreme Court (Rowley, J.),
entered December 30, 2014 and May 7, 2015 in Tompkins County,
which granted petitioner's application, in a proceeding pursuant
to Family Ct Act article 10, to adjudicate the subject children
to be abused and/or neglected.

      After respondent was charged with sexually abusing his
stepdaughter (born in 2001), petitioner commenced this proceeding
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alleging that respondent had abused and neglected her and
derivatively neglected his two biological children (born in 2006
and 2007).1 Respondent thereafter pleaded guilty to, among other
things, criminal sexual act in the second degree in regard to the
sexual abuse of his stepdaughter and criminal contempt in the
first degree based upon his admission to directing, among others,
the stepdaughter's mother, who was also the mother of his
biological children, to pressure the stepdaughter to recant.
Based upon his convictions, petitioner moved for summary
judgment, which Supreme Court granted. Accordingly, the court
adjudicated the stepdaughter to be abused and neglected and
respondent's two biological children to be derivatively
neglected. Following a dispositional hearing, corresponding
orders of disposition and protection were issued. Respondent
appeals.

      Respondent's sole contention on appeal is that petitioner's
submissions in support of its motion were insufficient to
establish, as a matter of law, that he derivatively neglected his
two biological children.2 We disagree. Although rarely used,
summary judgment is appropriate in a Family Ct Act article 10
proceeding where no triable issues of fact exist (see Matter of
Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178,
182 [1994]; Matter of Sumaria D. [Madelyn D.], 121 AD3d 1203,
1205 [2014]). In this regard, collateral estoppel effect may be
given to a respondent's criminal conviction where the identical
issue was resolved in the criminal action (see Matter of Suffolk
County Dept. of Social Servs. v James M., 83 NY2d at 182; Matter
of Jewelisbeth JJ. [Emmanuel KK.], 97 AD3d 887, 888 [2012]).


     1
        This proceeding and   respondent's criminal action were
subsequently transferred to   the Integrated Domestic Violence part
of Supreme Court, where the   same judge presided over this
proceeding and the criminal   action.
     2
        Inasmuch as respondent makes no argument with respect to
the finding that he abused and neglected the stepdaughter, any
argument that he could have made in that regard is deemed
abandoned (see Matter of Tara AA. v Matthew BB., 139 AD3d 1136,
1137-1138 [2016]).
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Although a finding that a respondent sexually abused one child is
not sufficient, by itself, to prove that other children in the
household have been derivatively neglected, such a finding is
warranted where, as here, the evidence demonstrates an impaired
level of parental judgment that places the other children at risk
of harm (see Matter of Blaize F., 50 AD3d 1182, 1184 [2008];
Matter of Sabrina M., 6 AD3d 759, 761 [2004]).

      In support of its motion, petitioner submitted the
indictment charging respondent with various sexual offenses and
the certificates of conviction establishing that he was convicted
of criminal sexual act in the second degree and criminal contempt
in the first degree. In addition, respondent does not dispute
that the parties agreed that Supreme Court would take judicial
notice of the proceedings in the criminal action. The transcript
of the plea colloquy establishes that respondent admitted to
orally sodomizing his 12-year-old stepdaughter and engaging in
efforts to pressure her to recant. This proof, in our view,
amply establishes not only that the identical issues were
resolved in the criminal action (see Matter of Suffolk County
Dept. of Social Servs. v James M., 83 NY2d at 182; Matter of
Tavianna CC. [Maceo CC.], 99 AD3d 1132, 1134 [2012], lv denied 20
NY3d 856 [2013]), but that respondent has such an impaired level
of understanding of his parental duties as to create a risk of
harm to his other children (see Matter of Ajay P., 60 AD3d 681,
683 [2009]; see also Matter of Blaize F., 50 AD3d at 1184; Matter
of Sabrina M., 6 AD3d at 761). Because no triable issues of fact
exist, petitioner's motion for summary judgment was properly
granted.

     Lahtinen, J.P., Lynch, Clark and Aarons, JJ., concur.
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ORDERED that the orders are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
