                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    516365
________________________________

In the Matter of SAMANTHA I.,
   on Behalf of EMILY K.,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

LUIS J.,
                    Appellant.
________________________________


Calendar Date:    October 9, 2014

Before:    Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


     Reginald Bedell, Elizabethtown, for appellant.

     Samantha I., Champlain, respondent pro se.

     Kathleen Rose Insley, Plattsburgh, attorney for the child.

                              __________


Garry, J.

      Appeals (1) from an order of the Family Court of Clinton
County (Lawliss, J.), entered January 24, 2013, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 8, for an order of protection, and (2) from the order
of protection entered thereon.

      In 2012, petitioner commenced this Family Ct Act article 8
proceeding on behalf of her daughter (born in 1999), alleging
that respondent had committed various family offenses against the
daughter. Respondent and the daughter were each 13 years old
when the petition was filed, and they had been in an on-and-off
dating relationship for several years. Following a fact-finding
hearing, Family Court granted the petition, finding that the
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daughter and respondent were in an intimate relationship within
the meaning of Family Ct Act § 812 (1) (e) and that respondent
had committed the family offenses of forcible touching and sexual
misconduct. After a dispositional hearing, the court issued a
two-year order of protection in the daughter's favor. Respondent
appeals from both orders.

      Respondent contends that petitioner lacks standing to bring
this family offense proceeding. To the extent that respondent is
truly arguing standing, this claim is unpreserved, as it was not
raised in Family Court (see Matter of Castillo v Luke, 63 AD3d
1222, 1223 [2009]; Matter of Isaiah O. v Andrea P., 287 AD2d 816,
817 [2001]). In any event, it is well established that a parent
has standing to commence a family offense proceeding on behalf of
his or her child (see Matter of Loriann Q. v Frank R., 53 AD3d
735, 736 [2008]; Matter of Hamm-Jones v Jones, 14 AD3d 956, 959
[2005]).

      However, the substance of respondent's argument is not
truly addressed to standing, but instead challenges Family
Court's subject matter jurisdiction – a nonwaivable issue, not
subject to preservation requirements, that may be raised at any
time (see Matter of Scott KK. v Patricia LL., 110 AD3d 1260,
1261-1262 [2013], lv dismissed and denied 22 NY3d 1054 [2014];
Matter of Anstey v Palmatier, 23 AD3d 780, 780 [2005]).
Respondent contends that his relationship with the daughter did
not fall within the parameters of Family Ct Act § 812 (1). This
provision, as pertinent here, provides that Family Court has
jurisdiction over family offense proceedings arising from certain
acts committed by a respondent against a "member[] of the same
family or household." Before 2008, the statutory definition of
this phrase embraced only persons who were related by
consanguinity or affinity, who were or had been married to one
another, or who shared a common child (see Family Ct Act § 812
[former (1)]). In 2008, the Legislature expanded the scope of
the statute's protection by amending the definition to include
"persons who are not related by consanguinity or affinity and who
are or have been in an intimate relationship regardless of
whether such persons have lived together at any time" (Family Ct
Act § 812 [1] [e], as added by L 2008, ch 326, § 7; see Matter of
Jessica D. v Jeremy H., 77 AD3d 87, 88-89 [2010]). The amended
                              -3-                516365

statute does not define the phrase "intimate relationship," but
instead provides a non-exhaustive list of factors for
consideration in determining whether such a relationship exists,
including "the nature or type of relationship, regardless of
whether the relationship is sexual in nature; the frequency of
interaction between the persons; and the duration of the
relationship" (Family Ct Act § 812 [1] [e]). Where, as here, a
parent brings a family offense proceeding on behalf of a child,
the focus of the jurisdictional analysis is on the child's
relationship with the respondent, rather than that of the parent
(see Matter of Bibeau v Ackey, 56 AD3d 971, 972 [2008]).

      The daughter testified that she and respondent had been
classmates since kindergarten and began a "boyfriend-girlfriend"
relationship in fifth grade that continued, on and off, through
eighth grade. At first, the relationship consisted of holding
hands, kissing and exchanging texts and phone calls. By sixth
grade, according to the daughter, respondent was texting or
calling her 5 or 10 times daily and becoming jealous,
"controlling" and "isolat[ing]." The daughter testified that she
and respondent had some sexual contact in sixth grade, including
an incident in which he allegedly caused her to touch his erect
penis at school in the presence of other students, and another in
which he put his hand down her shirt to touch her breasts without
her permission. According to the daughter, she and respondent
did not date for most of seventh grade. However, late in that
year they began talking again, and in eighth grade they met
twice, each time at respondent's request. The daughter testified
that during the first encounter, she reluctantly acceded to
respondent's request for oral sex, believing that he would "leave
[her] alone" if she did so. When they met the second time, they
had sexual intercourse; the daughter testified that she asked
respondent to stop and that he complied at first, but then
continued. The daughter distanced herself from respondent after
these events, and reported them to petitioner after she began
having suicidal thoughts.1


    1
        Family Court determined that respondent committed
forcible touching based upon the incident in which he touched the
daughter's breasts, and committed sexual misconduct based upon
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      Respondent did not dispute the factual accuracy of this
testimony. Contrary to his claim, the youth of the participants
does not preclude a determination that their relationship was
intimate within the meaning of the statute; Family Ct Act § 812
(1) expressly extends its jurisdiction to include respondents who
are too young to be held criminally responsible, and nothing in
the statutory language excludes young victims as participants in
intimate relationships (see Family Ct Act § 812 [1]; see also
Penal Law § 30.00). Further, as the legislation expressly
directs that such a relationship may exist between persons who
have never lived together, the fact that the participants lived
in their parents' separate households does not exclude them from
the ambit of the statute (see Family Ct Act § 812 [1] [e]). The
record supports Family Court's determination that the
intermittent dating relationship between respondent and the
daughter qualified as an intimate relationship within the
expanded reach of the revised statute (see Matter of Jessica D. v
Jeremy H., 77 AD3d at 90; see also Matter of Lavann v Bell, 77
AD3d 1422, 1423 [2010]). Accordingly, Family Court had subject
matter jurisdiction to entertain the proceeding.

     Stein, J.P., Rose, Lynch and Devine, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court



the act of sexual intercourse.
