In re Trenasia J.

• Decision Date: 05 May 2015
• Citation: 2015 N.Y. Slip Op. 03765,25 N.Y.3d 1001,32 N.E.3d 377,10 N.Y.S.3d 162
• Parties: In the Matter of TRENASIA J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 1.). In the Matter of Raymond J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 2.). In the Matter of Tavia J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 3.). In the Matter of Brije D., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 4.).
• Court: New York Court of Appeals Court of Appeals

25 N.Y.3d 1001

32 N.E.3d 377

10 N.Y.S.3d 162

2015 N.Y. Slip Op. 03765

In the Matter of TRENASIA J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 1.). In the Matter of Raymond J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 2.). In the Matter of Tavia J., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 3.). In the Matter of Brije D., an Infant. Administration for Children's Services, Respondent; Frank J., Appellant. (Proceeding No. 4.).

Court of Appeals of New York.

May 5, 2015.

Maxine H. Park, New York City, for appellant.

Zachary W. Carter, Corporation Counsel, New York City (Kathy Chang Park, Richard Dearing and Larry A. Sonnenshein of counsel), for respondent.

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 COURTMEMORANDUM.

The order 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 Family Court Act § 1012(g) and our decision in Matter of Yolanda D., 88 N.Y.2d 790, 651 N.Y.S.2d 1, 673 N.E.2d 1228 (1996). We agree with the Appellate Division, and disagree with the dissent, that the evidence was sufficient to establish that Frank J. was a PLR for the subject child at the relevant time.

Frank J. is the uncle of the subject child through marriage, and the father of three children (the J children). In February 2011, the Administration for Children's Services (ACS) filed petitions against Frank J. alleging that according to statements made by the subject child, Frank J. “forcefully attempted to have sexual intercourse” with her “after entering the bathroom while she was taking a shower” during an overnight visit at Frank J.'s home on December 31, 2010. The child, who was 11 years old at the time of incident, alleged that while she was taking a shower, Frank J. entered the bathroom and asked her if she wanted to make $5, warning her against telling her mother. The child alleged that Frank J. forcibly grabbed her by her hips, pulled her towards him, and attempted to pull out his penis. The child then ran crying to her cousin's room, put on some clothes and ran out of the house to a nearby supermarket where an ambulance was called.

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” (Family Ct. Act § 1012 [a] ). A person legally responsible for a child is defined as

“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 the 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 responding 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 [s]econd [d]egree” and found that, as a result, he had derivatively neglected his own children.

The Appellate Division affirmed (Matter of Trenasia J. [Frank J.], 107 A.D.3d 992, 966 N.Y.S.2d 875 [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 A.D.3d at 993, 966 N.Y.S.2d 875, citing Matter of Yolanda D., 88 N.Y.2d 790, 797, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996], and Matter of Christopher W., 299 A.D.2d 268, 751 N.Y.S.2d 2 [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, 966 N.Y.S.2d 875 ). This Court granted Frank J.'s motion for leave to appeal (22 N.Y.3d 859, 2014 WL 113767 [2014] ).

Matter of Yolanda D., 88 N.Y.2d 790, 651 N.Y.S.2d 1, 673 N.E.2d 1228 (1996) is this Court's seminal decision on the factors to consider in determining who is a PLR under Family Court Act § 1012(g). In that case we recognized

“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, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ).

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, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ). 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 respondent'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 extended daily care of children in institutional settings, such as teachers” (id. ).

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 he 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, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ).

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 Family Court Act § 1012(g) and Yolanda D. With respect to “the frequency and nature of the contact,” and “the duration of the respondent's contact with the child,” under Yolanda D., the responding police officer testified without objection that the child informed her that she had been staying at Frank J.'s home for a week prior to the incident. The child's mother testified that during the year before this incident, the child had visited Frank J.'s home eight or nine times and four of those occasions were overnight visits. There was also testimony that Frank J. and the child interacted at family functions such as family reunions, holidays and birthday parties. Thus, the total contacts between Frank J. and the child were significant.

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 expected her sister to care for the child, but if the sister wasn't there then [Frank J.] was expected to care for the child.” Finally, in considering “respondent's relationship to the child's parent(s),” Frank J. is related to the child...