An appeals court has backed the finding of a Family Court judge who declared two children neglected after their mother said she wanted her husband—a twice-convicted child sex offender—to have unsupervised access to them.

The Appellate Division, Third Department, held in Matter of Lillian SS., 516710, that Ulster County Family Court Judge Anthony McGinty (See Profile) was within his discretion in determining that the father posed an “imminent danger” to the children and that the 7-year-old boy and 4-year-old girl were neglected.

Among the factors that McGinty properly considered while weighing the neglect petition from the Ulster County Department of Social Services was the father’s history of abusing his 2-year-old daughter in 1996 and an 18-month-old in 1997 in North Carolina, the unanimous court said.

The judges also noted that the father, now a Level 3 sex offender in New York, had not completed sex offender treatment after either offense.

The Albany-based judges said that contrary to the father’s argument, Matter of Afton C. (James C.), 17 NY3d 1 (2011), does not prohibit a neglect finding in a case involving an untreated sex offender. The appeals judges held that the “facts underlying” the father’s child abuse convictions provided a “sufficient” basis for the neglect determination.

A sex offender expert who interviewed the father determined that while posing a “minimal” risk of abusing his wife’s 7-year-old son, he should not have unsupervised contact with either child due to his history of abusing children around the age of the 4-year-old girl, who is his daughter.

Justices John Lahtinen (See Profile), Leslie Stein (See Profile) and Elizabeth Garry (See Profile) joined in the ruling written by Justice Robert Rose (See Profile).

Theodore Stein of Woodstock represented the father. Ulster County Department of Social Services attorney Heather Harp defended her agency. Daniel Gartenstein of Kingston and Marian Cocose of Bearsville were attorneys for the children.