        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

647
CAF 10-00514
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF ZACHARY T.
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GENESEE COUNTY DEPARTMENT OF SOCIAL               MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

ALAN D.T., SR., RESPONDENT-APPELLANT.


MARY ANN BLIZNIK, CLARENCE, FOR RESPONDENT-APPELLANT.

PAULA A. CAMPBELL, BATAVIA, FOR PETITIONER-RESPONDENT.

LINDA M. JONES, ATTORNEY FOR THE CHILD, BATAVIA, FOR ZACHARY T.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered February 1, 2010 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, adjudged that the
subject child is a neglected child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father appeals from an order that, inter
alia, adjudicated the child who is the subject of this proceeding to
be a neglected child. We conclude that Family Court properly
determined following a fact-finding hearing that the father neglected
the child by failing to protect him from being sexually abused by his
older brother and his cousin. The child’s older brother testified
that the father was aware of their sexual activity but took no action
to prevent it from continuing. That testimony was corroborated by
sworn statements that the child made to a police investigator. Under
the circumstances, the court properly concluded that petitioner
established by a preponderance of the evidence that the sexual abuse
to which the child was subjected was “a consequence of the failure of
the [father] . . . to exercise a minimum degree of care in providing
the child with proper supervision or guardianship” (Nicholson v
Scoppetta, 3 NY3d 357, 368).

     We reject the father’s contention that the court erred in
determining that the child was derivatively neglected as a result of
the father’s sexual abuse of his nephew, whose family shared a house
with the father and his family during the relevant time period. We
conclude that the father was the “functional equivalent of a parent in
a familial or household setting” with respect to his nephew (Matter of
Yolanda D., 88 NY2d 790, 796), and that his nephew was therefore “the
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                                                         CAF 10-00514

legal responsibility of” the father within the meaning of Family Court
Act § 1046 (a) (i).




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
