Kameron V. Erie Cnty. Dep't of Soc. Servs. v.

• Decision Date: 29 September 2017
• Citation: 60 N.Y.S.3d 892 (Mem),153 A.D.3d 1623
• Parties: In the Matter of Kameron V. Erie County Department of Social Services, Petitioner–Respondent; Eva V., Respondent, And Jamel L., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1623

60 N.Y.S.3d 892 (Mem)

In the Matter of Kameron V. Erie County Department of Social Services, Petitioner–Respondent; Eva V., Respondent, And Jamel L., Respondent–Appellant.

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

Sept. 29, 2017.

Charles J. Greenberg, Amherst, for respondent-appellant.

Kate S. Nowadly, Buffalo, for petitioner-respondent.

David C. Schopp, Attorney for the Child, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).

MEMORANDUM:

In this proceeding brought pursuant to Family Court Act article 10, Jamel L. (respondent) appeals from an order of fact-finding determining that he neglected the subject child. We agree with respondent that the evidence does not support Family Court's determination that he is a person legally responsible for the child (see § 1012[g] ), and the court therefore erred in determining that he neglected the child (see § 1012[f][i] ). Even giving deference to the court's credibility determinations (see Matter of Donell S. [Donell S.], 72 A.D.3d 1611, 1611–1612, 900 N.Y.S.2d 217, lv. denied 15 N.Y.3d 705, 2010 WL 3431042 ), we conclude that petitioner's witnesses established that respondent and the mother of the child had been living together for some unspecified period of time, but there was nothing further to show that respondent acted "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 ; see Matter of Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377 ). There was no testimony that respondent, the mother, and the child were "living together as a family" ( Donell S., 72 A.D.3d at 1612, 900 N.Y.S.2d 217 ), or that respondent provided childcare or financial support, or performed any household duties (cf. Matter of Mackenzie P.G. [Tiffany P.], 148 A.D.3d 1015, 1017, 48 N.Y.S.3d 778 ; Matter of Keniya G. [Avery P.], 144 A.D.3d 532, 533, 41 N.Y.S.3d 500 ; Matter of Jayline R. [Jose M.], 110 A.D.3d 419, 420, 973 N.Y.S.2d 21 ; Matter of Tyler MM. [Stephanie NN.], 82 A.D.3d 1374, 1375, 918 N.Y.S.2d 644, lv. denied 17 N.Y.3d 703, 2011 WL 2237121 ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition against respondent Jamel L. is dismissed.

CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, and WINSLOW, JJ., concur.