Matter of Trenasia J.
APPEARANCES OF COUNSEL
Maxine H.
Zachary W. Carter, Corporation Counsel, New York City (Kathy Chang Park, Richard Dearing and Larry A. Sonnenshein of counsel), for rеspondent.
Karen P. Simmons, The Children’s Law Center, Brooklyn (Barbara H. Dildine and Janet Neustaetter of counsel), Attorney for the J. Children.
Seymour W. James, Jr., The Legal Aid Society, New York City (Marcia Egger and Tamara A. Steckler of counsel), Attorney for the Child Brije D.
Lansner & Kubitschek, New York City (David J. Lansner of counsel), and The Bronx Defenders, Bronx (Emma S. Ketteringham and Saul Zipkin of counsel), for The Bronx Defenders and others, amici curiae.
OPINION OF THE COURT
Memorandum.
The оrder of the Appellate Division should be affirmed, without costs.
The primary issue in this appeal is whether appellant Frank J. was a “person legally responsible” (PLR) as defined by
Frank J. is the uncle of the subject child through marriage, and the father of thrеe children (the J children). In February 2011, the Administration for Children’s Services (ACS) filed petitions against Frank J. alleging that according to state-ments
The Family Court Act defines a “respondent” in a child protective proceeding as “any parent or other person legally responsible for a child’s care who is alleged to have abused or neglected such child” (
“the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when thе conduct of such person causes or contributes to the abuse or neglect of the child” (
Family Ct Act § 1012 [g] ).
Frank J. moved to dismiss the petition for want of jurisdiction, arguing that he was not a PLR because he was neither the guardian nor custodian of the child, and she was never a member of his household. The attorney for the J children supported Frank J.’s motion to dismiss. After a hearing on the motion to dismiss, where the court heard testimony from the responding police officer and the child’s mother, Family Court, Kings County, denied Frank J.’s motion to dismiss, stating that there was no “serious question that [Frank J.] is a [PLR] within . . . the meaning” of the statute. The matter then proceeded to a fact-finding hearing, at which the subject child, the responding police officer, and Frank J. testified. The child’s testimony essentially tracked the allegations of the complaint, as did the testimony of the rеsponding officer, who reported the child’s version of the incident. Frank J. denied the allegations, and testified that the child had become upset when he scolded her for eating in one of the bedrooms. Upon conclusion of the testimony, the Family Court held that Frank J. abused the child “by committing an act of attempted sexual abuse in the
The Appellate Division affirmed (Matter of Trenasia J. [Frank J.], 107 AD3d 992 [2013]). The Court stated that “[c]ontrary to [Frank J.’s] contention, . . . Family Court correctly found him to be a [PLR] . . . within the meaning of the Family Court Act” (107 AD3d at 993, citing Matter of Yolanda D., 88 NY2d 790, 797 [1996], and Matter of Christopher W., 299 AD2d 268 [1st Dept 2002]). The Court determined that ACS established by a preponderance of the evidence that Frank J. abused the child. Additionally, the Court stated that the finding of derivative neglect was also proper because Frank J.’s “attempt to sexually abuse his niece while his two young daughters were home, at a time when he was the sole adult present, evinced a flawed understanding of his duties as a parent and impaired parental judgment” (id. at 993-994). This Court granted Frank J.’s motion for leave to appeal (22 NY3d 859 [2014]).
Matter of Yolanda D. (88 NY2d 790 [1996]) is this Court’s seminal decision on the factors to consider in determining who is a PLR under
“that parenting functions are not always performed by a parent but may be discharged by other persons, including custodians, guardians and paramours, who perform caretaking duties commonly associated with parents. Thus, the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents” (id. at 795).
We held that deciding whether “a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” (id. at 796). We listed factors to be considered when determining who is a PLR, which include (1) “the frequency and nature of the contact,” (2) “the nature and extent of the control exercised by the respondent over the child’s environment,” (3) “the duration of the respondent’s contact with the child,” and (4) “the resрondent’s relationship to the child’s parent(s)” (id.). This Court also stated that “article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide
Yolanda D. concerned whether a respondent uncle, who was alleged to have abused his 12-year-old niece during her visits to his Pennsylvania home, was a PLR. The uncle described the contact between him and his niece as six to seven visits during the summer of 1991, with three to four overnight visits. The uncle’s girlfriend who lived in the house at the time stated that the niece spent two weekends a month during the summer at his home. The evidence indicated that the niece and her mother lived in New York and the niece’s mother did not accompany her on these visits to Pennsylvania. Additionally, the uncle regularly visited his niece’s home. Family Court and the Appellate Division determined that the uncle was a PLR, and we agreed because the uncle was “regularly in the same household as [the child] during the relevant time, an environment he controlled, and he regarded his relationship with [the child] as close and familial” and further hе permitted the child “to stay overnight in his home, [thereby] provid[ing] shelter, a traditional parental function, in an area geographically distant from the child’s own household” (id. at 797).
Based on the evidence admitted during Frank J.’s hearing, there is record support for Family Court’s affirmed finding of fact that Frank J. was a PLR under
As to “the nature and extent of the control exercised by the respondent over the child’s environment,” this incident occurred in Frank J.’s home during an overnight visit, and he was the only adult present at the time. Additionally, Family Court noted in its oral decision denying Frank J.’s motion to dismiss that the child’s mother “testified that she expectеd her sister to care for the child, but if the sister wasn’t there then [Frank J.] was
Applying the Yolanda D. factors to thesе facts—given the nature and length of the contacts between Frank J. and the child, his control over the child’s environment and their familial relationship—record support exists for the lower courts’ determination that Frank J. is a PLR under
Rivera, J. (concurring in part and dissenting in part). In order for an individual to be a “person legally responsible for [a] child’s care” (PLR) under
Unlike the majority I consider the record in this appeal insufficient, as a matter of law, to support the Family Court’s determination that Frank J. is a PLR because the reсord is devoid of facts regarding the nature and duration of Frank J.’s caretaker responsibilities, especially given the mother’s testimony that Frank J.’s wife, the child’s aunt, was in charge of the child’s care when the mother was absent. Moreover, the record suggests that the Family Court relied disproportionately on some undefined normative-based assumption about Frank J. and the child’s familial bond, in contravention of this Cоurt’s interpretation of the statute. I therefore dissent.
In Yolanda D. this Court set forth a non-exhaustive list of factors that a court should consider as part of its “discretionary, fact-intensive inquiry” into whether a person is a functional equivalent of a parent (id.). The Court identified as relevant “the frequency and nature of the contact between the child and
Careful consideration of the record herein, with an eye to the “purpose of the inquiry” attendant to a
As is the case in this appeal, Yolanda D. involved an uncle/niece relationship. However, unlike the facts that established the uncle’s parenting role and close relationship with his niece in Yolanda D., the record here lacks evidence of а similar bond or of Frank J.’s parental responsibilities during the few times that he interacted with the child. In Yolanda D. the niece visited her uncle’s apartment unaccompanied six or seven times, approximately every other week, during the summer in which the abuse occurred. Here, Frank J. had some unspecified amount of contact with the child a total of eight or nine days across an entire year, which included traditionаl family gather-ings
Moreover, Frank J., unlike the uncle in Yolanda D., was not the person primarily responsible for the child during her visits to the household. According to the mother’s testimony, it was her sister, Frank J.’s wife and the child’s aunt, who was responsible for the child when she visited Frank J.’s home. The mother expected that on those occasions when the aunt was not present Frank J. would care for the child, meaning that the mother left the care of the child by default to Frank J. only when the aunt was unavailable. However, there is no factual rendition—from the mother or anyone else—establishing the frequency and nature of Frank J.’s contact with the child during those times when the aunt was absent. The record thus establishes that so long as the aunt was present, Frank J. did
Additionally, Family Court appears to have placed undue significance on what it found to be a “normal uncle/niece relationship” between Frank J. and the child. However, Family Court failed to define or explain what it meant by “normal.” In any case, to the extent it relied on its own understanding of a normative-based assessment of what constitutes a family, that was error, and in contravention of the statutory intent. As this Court made clear in Yolanda D.,
Without factual information as to the nature and frequency of Frank J.’s contact with the child, the record is insufficient to establish that he served as a functional equivalent of a parent in a household setting (id. at 795). Rather, Frank J.’s relationship to the сhild is more akin to that of a “person [ ] who assume[s] fleeting or temporary care of a child” (id. at 796). Therefore, the Appellate Division erroneously affirmed the finding that Frank J. was a person legally responsible for the child’s care within the meaning of
With respect to the petitions concerning Frank J.’s three children, I agree with the majority that the Appellate Division
Here, the Administration for Children’s Services filed petitions, in its role as child protective agency, against Frank J., alleging he dеrivatively neglected his children, ages 11, 10 and 2, based on his abuse of his niece while his daughters were present in the home. As the father of the three children named in the petitions, Frank J. clearly falls within the statutory definition of a “respondent” for purposes of this child protective proceeding (
The evidence at the hearing established Frank J.’s attempted abuse, described by the child herself. Moreover, it is undisputed that the acts occurred while two of Frank J.’s children were home, within earshot of one of his daughters. On this record, the evidence is sufficient to support a finding of derivative neglect.
Order affirmed, without costs, in a memorandum.