Theresa C., Matter of

• Decision Date: 16 September 1983
• Citation: 467 N.Y.S.2d 148,121 Misc.2d 15
• Parties: In the Matter of THERESA C., A Child under Sixteen Years of Age, Alleged to be Abused/Neglected by Joseph C., Respondent. * Family Court, Monroe County
• Court: New York Family Court

Page 148

467 N.Y.S.2d 148

121 Misc.2d 15

In the Matter of THERESA C., A Child under Sixteen Years of Age, Alleged to be Abused/Neglected by Joseph C. Respondent. ^* Family Court, Monroe County.

Sept. 16, 1983.

Milo I. Tomanovich, Rochester, Chief Counsel, Monroe County Dept. of Social Services (Edward D'Amico, Rochester, of counsel), for petitioner.

Cerulli & Massare, Rochester (Edward J. Massare, Rochester, of counsel), for respondent.

Gaye Moorhead, Rochester, law guardian.

Donald O. Chesworth, Jr., Monroe County Dist. Atty., Mark Meglorie, Paralegal, District Atty.'s Office.

DECISION

ANTHONY F. BONADIO, Judge.

In this Article 10 child protective proceeding, the respondent, who is alleged to have committed various sex offenses (see P.L. Sections 130.30, 130.35, 130.50 and 130.65) against the above-named child (now 11 years of age), moves to dismiss the petition as insufficient (cf. CPLR 3211(a)(7)), on the ground that the acts complained of occurred over a year ago, and that the underlying conditions upon which the petition is based no longer exist. The respondent also asserts, in his Answer (Paragraph 4), that since he is not a parent, person legally responsible for, or custodian of, the child (see Family Court Act, Section 1012(a) and (g)), he cannot be named as a respondent in an Article 10 proceeding. Finally, the court, sua sponte, treated respondent's motion, in part, as an application to dismiss on the ground that this court's "processes" are "inappropriate" or "insufficient" (Family Court Act, Section 1014(a)). ¹ This decision addresses all three issues.

The relevant facts in this matter are not disputed, and the parties stipulated ² to many of them. The respondent lived with Mary R. and her two children (one of whom--Theresa C.--is the child alleged to have been abused) for some 26 months, from January 1980 to March 1982. Ms. R. and the respondent never married. Since March of 1982, the respondent has had no contact with Theresa C. or her mother, and the respondent and Ms. R. have no present intention of resuming their relationship.

On March 3, 1983, about one year after the respondent and Ms. R. separated, the Monroe County Department of Social Services filed this petition, alleging that "(d)uring the time period of January, 1980 through March, 1982, while the Respondent resided with Mary R. and her two children, the Respondent engaged Theresa C. in repeated acts of sexual contact wherein (he) ..." (Petition, Paragraph 5, Rider A, subpara. 2). At the time the petition was filed, and for some period of time prior thereto, Theresa was living not with her mother or the respondent, but with her natural father (Petition, Paragraphs 3 and 4). Finally, it appears that the abuse alleged here came to the attention of the petitioning agency during its investigation of similar allegations against this respondent involving another child ³. The petitioner seeks a determination that Theresa is an "abused child" as that term is defined in Family Court Act Section 1012(e)(iii). ⁴

1. Is Mr. C. appropriately named as a respondent?

Family Court Act Section 1012(a) defines a respondent as "any parent or other person legally responsible for a child's care who is alleged to have abused or neglected such child." Subdivision (g) of Section 1012 includes within its definition of a person "legally responsible":

"the child's custodian, guardian, 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 caused or contributed to the abuse or neglect of the child." (emphasis added)

This definition of "person legally responsible" is broader than the definition of the same term in Family Court Act Section 119(b). Assuming, for purposes of this motion, the truth of the petitioner's allegations (Mtr. of C.B., 81 Misc.2d 1017, 367 N.Y.S.2d 382) ⁵, Mr. Cruz clearly falls within the definition of "respondent", since he was "continually ... found in the same household as the child" at the "relevant time." ⁶ And, as noted in the Commentary to Section 1012: "The primary effect of this supplemental definition of the word 'custodian' is to authorize child protective petitions against paramours" (Commentary, p. 455; Mtr. of Roman, 94 Misc.2d 796, 405 N.Y.S.2d 899). ⁷

2. Does the petition state a cause of action?

The sufficiency of petitions in child protective proceedings which rely on old incidents --rather than on recent or contemporaneous acts--has received relatively scant judicial attention. In Marks v. Grenier, 165 Misc. 784, 1 N.Y.S.2d 235, a 1937 case arising under the old Domestic Relations Court Act, the court dismissed a neglect petition based upon acts which had occurred some ten to eleven months earlier. The court stated (165 Misc. at 787-88, 1 N.Y.S.2d 235):

"A petition, however, presented to the court charging neglect of a child must state facts as they affect the child at the time the petition is presented.

The petition before me alleges that some ten or eleven months ago the child had not been properly cared for. The allegations of ... are not alleged to be existing at the time the petition was signed ... These conditions may no longer exist... The petition is wholly insufficient.

* * *

The allegations in a petition of which this court will take jurisdiction must be specific and must relate to a condition now existing, not one existing some time in the past." (emphasis added)

In Mtr. of Sais, 94 Misc.2d 40, 404 N.Y.S.2d 507, the court dismissed petitions charging the respondent-parents with the abuse and neglect of their twin boys, where such allegations were based solely on prior adjudications of abuse and neglect against the parents with respect to other children some two to four years before (cf. Family Court Act Section 1046(a)(i)).

In Mtr. of Diana M, 104 Misc.2d 766, 429 N.Y.S.2d 144, the court, relying on its prior decision in Sais, supra, dismissed, as insufficient, a neglect petition based upon two-year-old incidents. After observing that "changed circumstances" might render such allegations "moot", the court noted: "Due process considerations prohibit a present finding of neglect on a two-year old petition that was insufficient on its face then, and which now could not be sustained as an evidentiary matter because of the passage of time" (104 Misc.2d at 768, 429 N.Y.S.2d 144).

Grenier and Diana M are in accord with, and Sais relies on (94 Misc.2d at 41, 404 N.Y.S.2d 507), a line of cases often cited for the following proposition:

"The issue upon which the petitioner has the burden of proof, is whether current conditions are such that the children are in imminent danger of being abused or neglected (Matter of Daniel C, 47 AD2d 160 ; Matter of Anthony, (81 Misc.2d 342 ), supra; Matter of Foreman, 75 Misc.2d 348 ; Matter of Santos, 71 Misc.2d 789 ; Matter of Fred S, 66 Misc.2d 683 ; Matter of Vulon, 56 Misc.2d 19 )...." (emphasis added)

See also: N.Y.Civil Practice: Family Court Proceedings, Bk 12A, paragraph 30.06, p. 30-26.

These cases however, do not resolve the question of the sufficiency of this abuse petition because they are all primarily neglect cases. In our opinion, it appears that this petition states a cause of action for sexual abuse under Section 1012(e)(iii), and is not insufficient merely because it relies on year old claims.

Several provisions of Article 10 support such a conclusion. First, this proceeding was timely commenced. ⁸ Second, the petition alleges facts which, if true, are "sufficient to establish that (Theresa) is an abused ... child..." (Family Court Act Section 1031(a)). Moreover, the definition of a "neglected child" under Section 1012(f)(i) (A) and (B) recognizes that allegations of neglect should relate either to:

(a) current conduct or present conditions; or

(b) past conduct or old conditions,

which are currently "harming" the child or are likely to do so in the near future (imminently). The more succinct definition of the "sexually abused" child--one against whom a sex offense has been committed --as well as the fact that abuse cases are not subject to a formal dismissal under Family Court Act Section 1051 ⁹ on the ground that the aid of the court is not "presently" required, strongly suggest that the "contemporaneousness" of the alleged sex offense is not an element of this cause of action.

3. Should the court exercise jurisdiction ?

The primary purpose of an Article 10 proceeding is to help "protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (Family Court Act Section 1011; People v. Kenyon, 46 A.D.2d 409, 362 N.Y.S.2d 644; Mtr. of Maureen G, 103 Misc.2d 109, 426 N.Y.S.2d 384). A related, perhaps secondary, purpose would be--where possible--"to preserve and stabilize family life" (Social Services Law, Sections 423(1), 411 (Child Protective Services); 397(2)(a); 398(2)(a)). If the "processes" of this court cannot help in achieving these goals, Family Court intervention becomes unnecessary, perhaps counter-productive (Family Court Act Section 1014; Commentary, Sections 1011-1014; IJA/ABA Standards 2.2, p. 63; Besharov, "Representing Abused and Neglected Children: When Protecting Children Means Seeking the Dismissal of Court Proceedings," 20 J.Fam.L. 217-239 (1981)).

Important policy issues are involved. For example, in Mtr. of Lambert, 462 N.Y.S.2d 791, the Family Court dismissed an abuse case prior to trial where the child had died--as a result of the alleged abuse--prior to the commencement of the proceeding, ¹⁰ concluding that the child no longer needed the protection of the court (see also People v. Brennan, 33 A.D.2d 139, 306 N.Y.S.2d 384).

There are several factors which suggest that this court's processes are inappropriate or insufficient in this case. The respondent has no custodial interests with respect to...