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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 30
In the Matter of Trenasia J.
(Anonymous).
Administration for Children's
Services,
            Respondent;
Frank J. (Anonymous),
            Appellant.
(And Three Other Proceedings.)



          Maxine H. Park, for appellant.
          Barbara H. Dildine, for the J. children.
          Kathy Chang Park, for respondent.
          Marcia Egger, for the child Brije D.
          Bronx Defenders et al., amici curiae.




MEMORANDUM:
          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

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D. (88 NY2d 790 [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. "forcibly
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 Court Act § 1012 [a]).   A person
legally responsible for a child is defined as


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          "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 Court 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

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derivatively neglected his own children.
          The Appellate Division affirmed (Matter of Trenasia J.,
107 AD3d 992).   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 AD3d at 993,
citing Matter of Yolanda D., 88 NY2d 790, 793 [1996], Matter of
Christopher W., 299 AD2d 268 [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).      This
Court granted Frank J.'s motion for leave to appeal.
          Matter of Yolanda D. (88 NY2d 790 [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).    We held that deciding whether "a particular person

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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).     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 parents" (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


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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).
          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


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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 parents," Frank J. is
related to the child through marriage, as his wife's sister is
the child's mother.   Although the existence of a familial
relationship is not dispositive, it is appropriately considered
in determining whether a respondent is a PLR.
          Applying the Yolanda D. factors to these facts -- given
the nature and length of the contacts between Frank J. and the
child, his control over the child's environment and their
familial relationship -- record support exists for the lower
courts' determination that Frank J. is a PLR under Family Court
Act § 1012 (g) and for the determination of derivative neglect.




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Matter of Trenasia J.
No. 30




RIVERA, J.(concurring in part and dissenting in part):
          In order for an individual to be a "person legally
responsible for a child's care" ("PLR") under Family Court Act
§ 1012 (g), and thus a proper respondent in a child protective
proceeding, such person must serve "as the functional equivalent
of a parent in a familial or household setting" (Matter of
Yolanda D., 88 NY2d 790, 796 [1996]).   As interpreted by this
Court, section 1012 (g) does not extend to "persons who assume
fleeting or temporary care of a child" (id.).   Given the need in
these cases for judicial findings regarding personal
relationships and interactions, as well as an assessment of the
parental functions undertaken by nonparents, a proper
determination of whether a respondent's actions are "analogous to
parenting" requires a well-developed factual record of the nature
and extent of a respondent's caretaker responsibilities.
          Unlike the majority I consider the record in this
appeal insufficient, as a matter of law, to support the Family
Court's determination that Frank J. is a PLR because the record
is devoid of facts regarding the nature and duration of Frank
J.'s caretaker responsibilities, especially given the mother's
testimony that Frank J.'s wife, the child's aunt, was in charge


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of the child's care when the mother was absent.   Moreover, the
record suggests that the Family Court relied disproportionately
on some undefined normative-based assumption about Frank J. and
the child's familial bond, in contravention of this Court's
interpretation of the statute. I therefore dissent.
           In Yolanda D. this Court set forth a non-exhaustive
list of factors that a court should consider as part of its
"discretionary, fact-intensive inquiry" into whether a person is
a functional equivalent of a parent (id.).    The Court identified
as relevant "the frequency and nature of the contact between the
child and respondent, the nature and extent of the control
exercised by the respondent over the child's environment, the
duration of the respondent's contact with the child, and the
respondent's relationship to the child's parent(s)" (id.).     These
factors "illustrate some of the salient considerations in making
an appropriate determination" (id.).    No one factor is
dispositive, but rather each is to be accorded a weight
appropriate to the "circumstances of the particular case,"
mindful that the "purpose of the inquiry will remain constant"
(id.).   Essentially, they embody this Court's recognition that
the focus is on the person's responsibility for "caretaking
duties commonly associated with parents" and the person's
connection to the child (id. at 795).
           Careful consideration of the record herein, with an eye
to the "purpose of the inquiry" attendant to a section 1012 (g)


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PLR assessment, establishes that it does not support a
determination that Frank J. is a PLR within the meaning of
section 1012 (g).   The majority concludes otherwise, and,
applying the factors set forth in Yolanda D., relies, in part, on
the sum total of the contacts between Frank J. and the child,
characterizing them as "significant."   However, the record is
simply not clear as to the contacts between Frank J. and the
child.   Significantly, the majority's analysis fails to consider
Frank J.'s actual responsibilities for the child's care during
any of the visits to the home, or the nature of the interactions
during the times when they are supposedly in contact.    Yet, these
details are essential to the section 1012 (g) "fact-intensive
inquiry."   Of course, it is simply not possible to assess the
relevant facts because the record here is best characterized by
its sheer vagueness regarding the contacts and Frank J.'s role.
Indeed, it lacks critical details as to the nature and extent of
Frank J.'s contacts and responsibilities over the child necessary
to elevate him to "the functional equivalent of a parent" (id. at
796).
            As is the case in this appeal, Yolanda D. involved an
uncle/niece relationship.   However, unlike the facts that
established the uncle's parenting role and close relationship
with his niece in Yolanda D., the record here lacks evidence of a
similar bond or of Frank J.'s parental responsibilities during
the few times that he interacted with the child.   In Yolanda D.


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the niece visited her uncle's apartment unaccompanied six or
seven times, approximately every other week, during the summer in
which the abuse occurred.    Here, Frank J. had some unspecified
amount of contact with the child a total of eight or nine days
across an entire year, which included traditional family
gatherings like cookouts and birthday parties.1   While in both
Yolanda D. and the instant appeal the children stayed overnight
approximately four times, in Yolanda D. those visits were during
a concentrated period of the summer.    Whereas here, the mother
testified that the child stayed overnight three times in February
the year preceding the abuse and possibly on Thanksgiving Day in
November.    Thus, the child went almost a year without visiting
her uncle and aunt's home.   Moreover, in Yolanda D. the visits
were planned specifically to allow the niece to spend time with
the uncle.   Here, the mother testified that the child went to the
home of the uncle and aunt to visit her cousins, Frank J. and the
aunt's children.   When asked why her daughter went to the home,
the mother did not even mention Frank J.   Instead, she said her

     1
      The majority appears to consider Officer Alonso's hearsay
statement that the child told her she was staying at Frank J.'s
house one week (Maj Op at 6). I find it unnecessary to consider
whether Frank J.'s challenge to the officer's testimony is
preserved for our review because even taking into consideration
the officer's statement, the child's mother contradicted the
hearsay when she testified that the child was staying only one
night. Also, the mother testified the hearsay was incorrect:
"[the child] hasn't spent the night over [at Frank J.'s home]
like a week straight like it was said." Moreover, Family Court's
ultimate decision that Frank J. was a PLR neither mentions nor
relies on this hearsay.

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daughter visited "because she loves my sister and her cousins,
she wants to play with her cousins."     Thus, far from establishing
that Frank J. and the child interacted in a parent relationship,
and that they were "pretty close," as was the case of the uncle
and niece in Yolanda D., here the evidence establishes that Frank
J. and the child had limited contact, usually in the company of
other family members, and that the child visited the home because
she wanted to be with her aunt and cousins.
          Moreover, Frank J., unlike the uncle in Yolanda D., was
not the person primarily responsible for the child during her
visits to the household.   According to the mother's testimony, it
was her sister, Frank J.'s wife and the child's aunt, who was
responsible for the child when she visited Frank J.'s home.      The
mother expected that on those occasions when the aunt was not
present Frank J. would care for the child.    Meaning that the
mother left the care of the child by default to Frank J. only
when the aunt was unavailable.    However, there is no factual
rendition -- from the mother or anyone else -- establishing the
frequency and nature of Frank J.'s contact with the child during
those times when the aunt was absent.    The record thus
establishes that so long as the aunt was present, Frank J. did
not have the type of control and responsibility for the child
that was crucial to the PLR finding in Yolanda D..
          Additionally, Family Court appears to have placed undue
significance on what it found to be a "normal uncle/niece


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relationship" between Frank J. and the child.   However, Family
Court failed to define or explain what it meant by "normal."      In
any case, to the extent it relied on its own understanding of a
normative-based assessment of what constitutes a family, that was
error, and in contravention of the statutory intent.    As this
Court made clear in Yolanda D., section 1012 (g) "embod[ies]
legislative recognition of the reality that parenting functions
are not always performed by a parent but may be discharged by
other persons" (id. at 795).   The Court specifically identified
persons who are not "family" in the traditional sense -- such as
paramours -- as those "who perform caretaking duties commonly
associated with parents" (id. at 794-795 [noting that
"custodians, guardians and paramours" may discharge parenting
functions and the legislative history demonstrates an intent to
include persons "without legal custody of the child() within the
jurisdiction of the family court"], citing Letter from sponsor of
an amendment to section 1012 [g] to the Governor, Bill Jacket, L
1972 ch 1015).   Moreover, "respondent's relationship to the
child's parent(s)" is but one variable for the court's
consideration in its PLR determination, and is by no means
outcome determinative.   The application of those factors to the
facts in Yolanda D. is instructive, for if the existence of a
familial relationship were enough to satisfy the statute, there
would have been no need to discuss the frequency of visits and
the close relationship between the uncle and child in that case.


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          Without factual information as to the nature and
frequency of Frank J.'s contact with the child, the record is
insufficient to establish that he served as a functional
equivalent of a parent in a household setting (id. at 795).
Rather, Frank J.'s relationship to the child is more akin to that
of a "person[] who assume[s] fleeting or temporary care of a
child" (id. at 796).   Therefore, the Appellate Division
erroneously affirmed the finding that Frank J. was a person
legally responsible for the child's care within the meaning of
section 1012 (g), and I would reverse as related to the petition
alleging attempted abuse of the child.
          With respect to the petitions concerning Frank J.'s
three children, I agree with the majority that the Appellate
Division properly affirmed Family Court's derivative neglect
determination.   An Article 10 child protective proceeding to
determine abuse or neglect "may be originated by a child
protective agency" (Family Court Act § 1031 [d]), at which the
agency must establish by a preponderance of the evidence that
respondent derivatively neglected respondent's own children (see
Matter of Tammie Z., 66 NY2d 1, 3 [1985]).       At such proceeding,
"proof of the abuse or neglect of one child shall be admissible
evidence on the issue of the abuse or neglect of any other child"
(Family Court Act § 1046 [A] [i]).       A "child" is defined as "any
person or persons alleged to have been abused or neglected"
(Family Court Act § 1012 [b]).


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          Here, the Administration for Children's Services filed
petitions, in its role as child protective agency, against Frank
J., alleging he derivatively neglected his children, ages 11, 10
and 2, based on his abuse of his niece while his daughters were
present in the home.   As the father of the three children named
in the petitions, Frank J. clearly falls within the statutory
definition of a "respondent" for purposes of this child
protective proceeding (Family Court Act § 1012 [a]
["'(r)espondent' includes any parent"]).   The fact that Frank J.
does not meet the statutory definition of a PLR concerning the
care of another child does not foreclose the agency from
proceeding against him with respect to his own children (see
Matter of Jamel T., 120 AD3d 504, 505 [2d Dept 2014] [holding
that allegations of abuse against child who is not "subject of
... proceedings may form the basis of a finding that (respondent)
derivatively neglected children"]; Matter of Kennedie M., 89 AD3d
1544, 1545 [4th Dept 2011] ["court may make a finding of
derivative neglect even if the child who was sexually abused is
not the subject of the neglect petition"]; Matter of Kole HH., 61
AD3d 1049, 1052-1053 [3d Dept 2009] [holding that although
respondent did not qualify as a PLR with respect to the victim of
abuse, that abuse could still form the basis of a derivative
neglect finding as against respondent's own children]).    Thus,
the agency was within its authority to present evidence of Frank
J.'s abuse of the child in order to meet its burden.


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            The evidence at the hearing established Frank J.'s
attempted abuse, described by the child herself.          Moreover, it is
undisputed that the acts occurred while two of Frank J.'s
children were home, within earshot of one of his daughters.         On
this record, the evidence is sufficient to support a finding of
derivative neglect.
*   *   *    *   *    *   *   *    *      *   *   *   *    *   *   *     *
Order affirmed, without costs, in a memorandum. Judges Read,
Pigott, Abdus-Salaam and Fahey concur. Judge Rivera dissents in
part in an opinion in which Chief Judge Lippman and Judge Stein
concur.

Decided May 5, 2015




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