Jesse B., Respondent-Appellant. v. << (2004)

 Respondent appeals from an order adjudicating the 15-year-old daughter of his girlfriend to be neglected and directing that respondent have no contact with the child until her 18th birthday.   The adjudication of neglect is based upon the presence of respondent in the home, given that he has prior convictions involving the sexual abuse of children.   In relevant part, Family Ct. Act § 1012(f)(i)(B) defines a neglected child as a child “whose physical, mental or emotional condition ․ is in imminent danger of becoming impaired as a result of the failure of his [or her] parent or other person legally responsible for his [or her] care to exercise a minimum degree of care ․ in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, ․ or by any other acts of a ․ serious nature requiring the aid of the court․”  The statute allows the court to adjudicate a child to be neglected based on proof of “potential harm” (Matter of Kenneth V. [Appeal No. 2], 307 A.D.2d 767, 768, 761 N.Y.S.2d 422;  see Nicholson v. Scoppetta, 3 N.Y.3d 357, 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004];  Matter of Christopher JJ., 281 A.D.2d 720, 721, 721 N.Y.S.2d 692).   Petitioner bears the burden of proving such potential harm by a preponderance of the evidence (see § 1046[b] [i];  Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038;  Kenneth V., 307 A.D.2d at 768, 761 N.Y.S.2d 422).   Family Court properly found under the circumstances of this case that the child's physical, mental or emotional condition is in imminent danger of becoming impaired (see Matter of Mariah CC., 302 A.D.2d 799, 800-801, 756 N.Y.S.2d 661;  Matter of Child Protective Servs., 260 A.D.2d 631, 632, 689 N.Y.S.2d 173;  Matter of Dutchess County Dept. of Social Servs. v. Peter B., 224 A.D.2d 617, 617-618, 639 N.Y.S.2d 400;  Matter of Kasey C. [Appeal No. 1], 182 A.D.2d 1117, 1118, 586 N.Y.S.2d 163, lv. denied 80 N.Y.2d 757, 588 N.Y.S.2d 825, 602 N.E.2d 233).   Here, as in Kasey C., “ [t]here is ample proof to show that the [child is] at imminent risk of sexual abuse as a result of the presence of respondent ․ in the household ․ [inasmuch as t]he proof demonstrates that he is an unreconstructed sexual abuser who denies his guilt of the prior incidents for which he was convicted” (id.).

We have considered respondent's remaining contentions and conclude that any error in the admission of incompetent opinion evidence or hearsay statements is harmless (see Matter of Benjamin L., 9 A.D.3d 153, 158-159, 780 N.Y.S.2d 8;  Matter of Lindsay N., 300 A.D.2d 216, 217, 751 N.Y.S.2d 739, lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790 N.E.2d 276;  Matter of Michael G., 300 A.D.2d 1144, 1145, 752 N.Y.S.2d 772;  Matter of Sherri M.K., 292 A.D.2d 868, 869, 739 N.Y.S.2d 325).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: