In re Gary J. (Anonymous). Admin. for Children's Servs., 2016-09848

• Decision Date: 25 October 2017
• Docket Number: N-21759-15, Docket Nos. N-21758-15, N-21761-15,2016-09848, N-21762-15., N-21760-15
• Citation: 62 N.Y.S.3d 499,154 A.D.3d 939
• Parties: In the Matter of GARY J. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 1), In the Matter of Manny M.T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 2), In the Matter of Angelina J. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 3), In the Matter of Elian M.T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 4), In the Matter of Irene T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 5).
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 939

62 N.Y.S.3d 499

In the Matter of GARY J. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 1), In the Matter of Manny M.T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 2), In the Matter of Angelina J. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 3), In the Matter of Elian M.T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 4), In the Matter of Irene T. (Anonymous). Administration for Children's Services, appellant; Engerys J. (Anonymous), respondent. (Proceeding No. 5).

2016-09848

Docket Nos. N-21758-15

N-21759-15

N-21760-15

N-21761-15

N-21762-15.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 25, 2017.

Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and Daniel Matza–Brown of counsel), for appellant.

Lewis S. Calderon, Jamaica, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Eva Stein and Janet Neustaetter of counsel), attorney for the children.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, and ANGELA G. IANNACCI, JJ.

Appeal by the petitioner from an order of the Family Court, Kings County (Elizabeth Barnett, J.), dated August 24, 2016. The order, insofar as appealed from, after a fact-finding hearing, found that the petitioner failed to prove by a preponderance of the evidence that the respondent neglected the subject children Gary J., Manny M. T., Angelina J., and Irene T. and dismissed the petitions with respect to them with prejudice.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, the petitions with respect to the children Gary J., Manny M. T., Angelina J., and Irene T. are reinstated, findings are made that the respondent neglected those children, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and determinations thereafter.

During the summer of 2015, two of the subject children (hereinafter together the older children) lived with their mother and her boyfriend, the respondent, Engerys J. Two other children of the mother and the respondent, half-siblings of the older children (hereinafter together the younger children), also resided in the home. The older children reported incidents to the petitioner, the Administration for Children's Services (hereinafter the ACS), where the respondent would come home drunk and hit the mother or them, and one of them stated that the respondent repeatedly hit him with a belt. The older children each stated that they were afraid of the respondent.

The ACS filed neglect petitions against the respondent with respect to the four children. The Family Court dismissed the neglect petitions with prejudice, finding that the ACS had not established that the respondent was a person legally responsible for the older children or that he had derivatively neglected the younger children. We reverse insofar as appealed from.

The Family Court erred in determining that the respondent was not a person legally responsible for the older children. A person legally responsible is defined as "the child's custodian, guardian, [or] any other person responsible for the child's care at the relevant time" ( Family Ct. Act § 1012[g] [footnote omitted] ). "A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child's care if that person acts as the functional equivalent of a parent in a familial or household setting" ( Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [internal quotation marks omitted] ). "Determining 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. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and the respondent's relationship to the child's parent(s) are some of the variables which should be considered and weighed by a court" ( id. at 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ). The definition "expressly encompasses paramours who regularly participate in the family setting and who therefore share to some degree in the supervisory...