Essex Cnty. Dep't of Soc. Servs. v. Alex D. (In re Raelene B.)

179 A.D.3d 1315

116 N.Y.S.3d 787

In the MATTER OF RAELENE B. and Others, Alleged to be Neglected Children.

Essex County Department of Social Services, Respondent;

v.Alex D., Appellant.

526325

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 17, 2019

Decided and Entered: January 16, 2020

Ruth A. Rowley, Glens Falls, for appellant.

Essex County Department of Social Services, Elizabethtown (David D. Scaglione of counsel), for respondent.

Reginald H. Bedell, Willsboro, attorney for the child.

Trinidad M. Martin, Glens Falls, attorney for the child.

James P. Curran, Hebron, attorney for the child.

Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Appeal from an order of the Supreme Court (Meyer, J.), entered December 7, 2017 in Essex County, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

Respondent and the mother were in a relationship and lived together for nine years, ending in 2015. They have one child in common (born in 2008) (hereinafter the younger child). Their household also included, as relevant here, another child of the mother (born in 2002) (hereinafter the older child) and, beginning in 2014, the mother's niece (born in 1998). After the relationship between respondent and the mother ended, petitioner commenced this proceeding alleging that respondent had neglected the three children. Following a fact-finding hearing, Supreme Court issued a determination that the niece and the older child were neglected by respondent, and the younger child was derivatively neglected. Respondent appeals.

The record supports Supreme Court's finding that respondent was a "person legally responsible" for the care of the subject children. The Family Ct Act defines "person legally responsible" to include a "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 Ct. Act § 1012[g] ). "The statute was ‘intended to be construed broadly so as to include paramours or other nonparental persons who perform childcare duties which correspond with the traditional parent/child relationships’ " ( Matter of Alexandria XX. [Ronald X.] , 80 A.D.3d 1096, 1097, 915 N.Y.S.2d 716 [2011], quoting Matter of Nathaniel TT. , 265 A.D.2d 611, 612, 696 N.Y.S.2d 274 [1999], lv denied 94 N.Y.2d 757, 703 N.Y.S.2d 74, 724 N.E.2d 770 [1999] ; see Matter of Gary J. [Engerys J.] , 154 A.D.3d 939, 940–941, 62 N.Y.S.3d 499 [2017] ; Matter of Jamaal NN. , 61 A.D.3d 1056, 1057, 878 N.Y.S.2d 205 [2009], lv denied 12 N.Y.3d 711, 2009 WL 1299012 [2009] ). "[D]eciding whether ‘a particular person 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’ " ( Matter of Trenasia J. [Frank J.] , 25 N.Y.3d 1001, 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377 [2015], quoting Matter of Yolanda D. , 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 [1996] ).

Respondent lived with the mother for nine years, beginning when the older child was approximately three years old. The niece testified that she, as well as the older child, viewed respondent as a father figure in the household, and several other witnesses supported that testimony. Respondent often was the only adult present in the household with the children while the mother worked overnight shifts, and he would tuck the children into bed at night. Respondent testified that the mother regularly left the children in his care overnight and that he viewed himself as the primary caregiver. Under the circumstances, the evidence established that respondent was a person legally responsible for the care of the children in the household (see Matter of Trenasia J. [Frank J.] , 25 N.Y.3d at 1004–1005, 10 N.Y.S.3d 162, 32 N.E.3d 377 ; Matter of Unity T. [Dennis T.] , 166 A.D.3d 629, 631, 87 N.Y.S.3d 330 [2018] ; Matter of Gary J. [Engerys J.] , 154 A.D.3d at 941, 62 N.Y.S.3d 499 ).

There is a sound and substantial basis in the record to support Supreme Court's finding that petitioner met its burden of establishing that respondent neglected the niece and the older child and derivatively neglected the younger child. " ‘A party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing proper supervision or guardianship’ " ( Matter of Johnathan Q. [James Q.] , 166 A.D.3d 1417, 1418, 89 N.Y.S.3d 390 [2018] [brackets omitted], quoting Nicholson v. Scoppetta , 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ; see Family Ct. Act § 1012[f][i] ). "When determining whether a parent or guardian has failed to exercise a minimum degree of care, the relevant inquiry is whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances" ( Matter of Cori XX. [Michael XX.] , 145 A.D.3d 1207, 1208, 43 N.Y.S.3d 562 [2016] [internal quotation marks and citations omitted]; accord Matter of Nathanael E. [Melodi F.] , 160 A.D.3d 1075, 1076, 74 N.Y.S.3d 127 [2018] ). We accord great deference to Supreme Court's factual findings and credibility determinations, which we will not disturb unless they lack a sound and substantial record basis (see Matter of Nathanael E. [Melodi F.] , 160 A.D.3d at 1076, 74 N.Y.S.3d 127 ).

Adults engaging in sexual activity in a child's presence, including masturbating in front of a child, can be adequate grounds for a finding of neglect (see Matter of Ja'Dore G. [Cannily G.] , 169 A.D.3d 544, 545, 95 N.Y.S.3d 79 [2019] ; Matter of Heather WW. , 300 A.D.2d 940, 941, 753 N.Y.S.2d 183 [2002] ). The niece, who was a minor when respondent lived in the household but had turned 18 years old before the hearing, testified that respondent would regularly lie next to her on the couch and masturbate while he rubbed her thigh. This happened several nights per week, while the mother was not at home. Although respondent at first engaged in this conduct under a blanket, after a while he began showing his penis during these incidents. The niece further testified that the older child was present and witnessed this behavior on more than one occasion. Other witnesses also testified that the older child had told them that she witnessed similar...