Untreated Sex Offenders: Automatically Presumed Neglectful Parents?

The New York Court of Appeals recently decided a case involving a father of five children who was found to be a level three sex offender after being convicted of various crimes, including “rape in the second degree, sexual intercourse with a person less than 15 years of age, and patronizing a prostitute”. Although none of these crimes involved the father’s own children or any other relatives, the court was faced with the question of whether or not the father nevertheless neglected his own children based on his status as a sex offender. 

The Family Court found that not only did the father neglect his children for posing a serious risk to the children and by not attending any counseling, but that the mother also neglected the children for her “failure to inquire into the details of [her husband’s] illegal conduct”. The Appellate Division reversed the Family Court’s decision, finding that neither the father nor the mother neglected their children. The court reasoned that: “[t]he 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 subject children”.

The Court of Appeals affirmed the Appellate Division’s decision, citing to section 1012(f) of the Family Court Act. In order for neglect to be found under that section, two requirements must be met. The Court of Appeals explained that: “First, there must be ‘proof of actual (or imminent danger of) physical, emotional, or mental impairment to the child’… Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care” (citing Nicholson v Scoppetta, 3 NY3d 357, 368-69 (2004)). The local Social Services Department attempted to argue that because the father was a sex offender whose sex crimes involved minors and because the mother allowed the father to return home, that both parents had neglected their children. The Court of Appeals did not agree based on its determination that the two requirements under the Family Court Act had not been met. The court directly stated that: “[W]e now reject any presumption that an untreated sex offender residing with his or her children is a neglectful parent”.

However, although the Court of Appeals did not find neglect in this case, the court did go on to say that in other cases, where there is a different set of facts, a parent’s status as a sex offender may be proof of neglect. These cases would have to involve more egregious circumstances, such as when the “sex offender [is] convicted of abusing young relatives or other children in [his or her] care,” or when a sex offender parent “refused sex offender treatment after being directed to participate in it”. In this case, there was no evidence that the father had done anything that would indicate that he posed a threat to his own children, nor had sex offender treatment been mandated.

In declining to recognize a presumption of neglect when a parent is found to be an untreated sex offender, the Court of Appeals seems to have upheld the idea that there is a very heavy burden to prove that a parent is “unfit”. While some may argue that the Court of Appeals came to the correct conclusion based on the requirements under the Family Court Act, others may fear that the such a presumption of neglect should be found when faced with a parent who is also a registered sex offender based on the severity of the parent’s previous conduct. In these types of situations, should there be an automatic presumption, or should the fact that the parent is also a sex offender just be one of the factors that a court considers?

Court of Appeals decision (In re Afton C.,N.Y., No. 69, 5/5/11) can be found at: