Yolanda D., Matter of

• Citation: 218 A.D.2d 648,630 N.Y.S.2d 537
• Parties: In the Matter of YOLANDA D.; Orange County Department of Social Services, Respondent; Alexander W., Appellant.
• Decision Date: 07 August 1995
• Court: New York Supreme Court Appellate Division

Page 537

630 N.Y.S.2d 537

218 A.D.2d 648

In the Matter of YOLANDA D.; Orange County Department of Social Services, Respondent; Alexander W., Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 7, 1995.

Maria Joy Frank, Yorktown Hgts, for appellant.

Richard B. Golden, County Atty., Goshen (Stephen Toole, of counsel), for respondent.

Stuart I. Greenberg, Monroe, Law Guardian for Yolanda D.

Before PIZZUTO, J.P., and JOY, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a child protective proceeding pursuant to Family Court Act article 10, Alexander W. appeals, (1) as limited by his brief, from so much of a fact-finding order of the Family Court, Orange County (Slobod, J.), entered August 21, 1992, as found that he had sexually abused his niece, Yolanda D., and (2) from a dispositional order of the same court, entered September 28, 1992, upon the fact-finding order which, inter alia, directed that an order of protection be entered "proscribing him from being within one thousand (1,000) feet of the subject children".

ORDERED that the appeal from the fact finding dated August 21, 1992, order is dismissed, without costs or disbursements, as that order was superseded by the dispositional order entered September 28, 1992; and it is further,

ORDERED that the dispositional order is affirmed, without costs or disbursements.

The appellant contends that he is not a proper party to this child protective proceeding since he was not a person "legally responsible" for Yolanda D., pursuant to Family Court Act § 1012(a), during the periods he allegedly sexually abused the child.

The appellant is the uncle of Yolanda D. Over a three year period, Yolanda D. frequently spent weekends with the appellant and his paramour who were the only adults in the appellant's household. During the summer of 1991, when Yolanda D. was 12 years old, she would spend every other weekend in the appellant's household in Matamoros, Pennsylvania. The record indicates that the sexual abuse, which progressed from fondling to vaginal intercourse, occurred when she was between 10 and 13 years of age. The appellant admitted that Yolanda D. visited with him frequently at his home, and he visited Yolanda D. at her home in Middletown, New York, where the appellant's mother lived, but denied that he had any sexual contact with Yolanda D.

In a prior child neglect proceeding, Yolanda D. and a number of her siblings were found to have been neglected by their mother Edith W. as a result of the mother's abuse of alcohol. As a result Yolanda D. joined a therapy group for children of alcoholics. On September 16, 1991, Yolanda D. disclosed to her counselor and the rest of her therapy group that she was being sexually abused by the appellant.

After a hearing, at which Yolanda D., the appellant, his paramour, and a number of other witnesses testified, the Family Court denied the appellant's motion to dismiss the proceeding on the ground that he was not a proper respondent and found that Yolanda D. had been subjected to progressive sexual contact by the appellant and, derivatively, that four of Yolanda D.'s siblings were neglected by him.

We find that the facts of this case support the Family Court's conclusion that Alexander W. was a proper party to this proceeding.

Family Court Act § 1012(a) defines a "respondent" as a "person legally responsible for the child's care who is alleged to have abused or neglected such child." The statute further provides that a "person legally responsible" includes the child's custodian, guardian or "any other person responsible for the child's care at the relevant time". (Family Court Act § 1012[g].) A "custodian" includes "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 Court Act § 1012[g].

Although the "primary effect of the supplemental definition of the word 'custodian' is to authorize child protective petitions against paramours" (Matter of Department of Social Servs. [R. Children] v. Waleska M., 195 A.D.2d 507, 509, 600 N.Y.S.2d 464; see also, Besharov, 1984 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1012, 1995 Pocket Part, at 104), the terms of the statute do not preclude its application to other adults, including non-nuclear family members who exercise care and control over the subject child at the time of the abuse (see, Besharov, 1984 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1012, 1995 Pocket Part, at 104; cf., Matter of Jessica C., 132 Misc.2d 596, 505 N.Y.S.2d 321; Matter of Kyle H., 198 A.D.2d 913, 604 N.Y.S.2d 463; Matter of Robert J., 178 A.D.2d 1004, 580 N.Y.S.2d 894).

The purpose of Family Court Act § 1012(g) in expanding the definition of "respondent" was to more fully protect children from adults, who as custodians--whether on a full-time basis or at regular intervals--are most often in the position to do them the greatest harm (see, Besharov, 1984 Supp Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct.Act § 1012, 1995 Pocket Part, at 104). Family Court Act § 1012(g), as are all the provisions contained in Family Court Act article 10, is designed to "bring to bear protective and rehabilitative services within the child's household" (Besharov, 1993 Supp Practice Commentaries, McKinney's Cons.Law of N.Y., Book 29A, Family Ct.Act § 1012, 1995 Pocket Part, at 80; see generally, Matter of Stephanie "WW", 213 A.D.2d 818, 623 N.Y.S.2d 404; Matter of Charles "DD" [Bernard EE], 163 A.D.2d 744, 558 N.Y.S.2d 720; People v. Kenyon, 46 A.D.2d 409, 362 N.Y.S.2d 644). Family Court Act § 1011 provides that the legislative purpose of the statute is to "establish procedures to help protect children from injury and mistreatment and to help safeguard their physical, mental and emotional well-being" and to "provide due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child, so that his needs are properly met".

In the instant proceeding, the alleged abuser is Yolanda D.'s uncle, who by his own admission, had frequent access to her. Yolanda D.'s mother, the appellant's sister, who has herself been neglectful of her children through her abuse of alcohol, has testified that she does not believe Yolanda D. and therefore does not intend to protect her against the appellant. In view of these circumstances, we find that Alexander W. falls within the category of people contemplated by the definition of "respondent" found in Family Court Act § 1012(a) as amplified by Family Court Act § 1012(g).

We are mindful, as is our dissenting colleague, that Family Court Act §§ 1012(a) and 1012(g) are not to be interpreted so broadly as to bring within their ambit nonfamily members who exercise fleeting care and custody of a child such as the parents of a child's friend, who may exercise care and control, during a play-date, or an overnight visit. Nor should the statute be permitted to extend to nonfamily members who provide full-time or extended daily care to children outside the household, such as hospitals, doctors, teachers, babysitters, and day-care providers (see, Besharov, 1984 Supp Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Family Ct.Act § 1012, 1995 Pocket Part, at 104).

In this regard, we find Johnson v. Jamaica Hosp., 62 N.Y.2d 523, 478 N.Y.S.2d 838, 467 N.E.2d 502, cited by our colleague, to be distinguishable on its facts. In Johnson, the Court of Appeals dismissed a cause of action for emotional distress, finding that the defendant hospital was not acting in loco parentis at the time the plaintiffs' daughter was abducted therefrom.

In sum, review of the legislative history of Family Court Act § 1012(g) reveals that the intended focus of the Family Court inquiry is parental responsibility or its functional equivalent. Admittedly, it is not to protect a child against any and all dangers produced in society. Based on these principles, we find that there was a sufficient factual basis in this record for the Family Court to find that the role of the appellant during his niece's frequent overnight visits to his home in another state was the functional equivalent of a parent. Therefore, the Family Court properly intervened, as parens patriae, in order to protect this child (see, Matter of Jessica C., supra, 132 Misc.2d 596, 505 N.Y.S.2d 321).

Additionally, we find that any error in admitting into evidence statements of Yolanda D.'s sister was harmless since the Family Court did not rely upon such statements in its fact-finding (see, Matter of Daniel "R" v. Noel "R", 195 A.D.2d 704, 600 N.Y.S.2d 314).

Moreover, our decision to affirm the Family Court's findings of fact with regard to Yolanda D. renders academic the appellant's argument regarding the derivative findings as to Yolanda D.'s siblings.

We have reviewed the appellant's remaining contentions and find them to be without merit.

PIZZUTO, J.P., and JOY and FRIEDMANN, JJ., concur.

GOLDSTEIN, Justice, dissents and votes to reverse the dispositional order entered September 28, 1992, to vacate so much of the fact-finding order entered August 21, 1992, as found the appellant guilty of sexual abuse, and to dismiss the petition insofar as it is asserted against him, with the following memorandum:

The appellant Alexander W. is charged with sexually abusing his niece, Yolanda D. in a proceeding pursuant to Family Court Act article 10.

During the summer of 1991, the then 12-year-old Yolanda D. stayed overnight about two weekends a month in an apartment in Pennsylvania which the appellant shared with his girlfriend. Contrary to the findings of my colleagues in the majority, the appellant and his paramour only shared that apartment from August 1990 until November 1, 1991, and Yolanda D. did not stay with them...