In re Kevin D.

169 A.D.3d 1034

94 N.Y.S.3d 565

In the MATTER OF KEVIN D. (Anonymous). Administration for Children's Services, Petitioner; Quran S.S. (Anonymous), Respondent. (Proceeding No. 1)

In the Matter of Wilhelmenia D. (Anonymous). Administration for Children's Services, Petitioner-Respondent; Quran S.S. (Anonymous), Appellant. (Proceeding No. 2)

In the Matter of Charisma D. (Anonymous). Administration for Children's Services, Petitioner-Respondent; Quran S.S. (Anonymous), Appellant. (Proceeding No. 3)

2017–11125

2017–11128

Docket Nos. N–2380–15, N–2381–15, N–2382–15

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

Submitted—January 29, 2019

February 27, 2019

Francine Scotto, Staten Island, NY, for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Claude S. Platton and Jessica Miller of counsel), for petitioner-respondent.

Kenneth M. Tuccillo, Hastings–on–Hudson, NY, attorney for the child Kevin D.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the children Wilhelmenia D. and Charisma D.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, Quran S. S. appeals from (1) an order of fact-finding of the Family Court, Richmond County (Karen B. Wolff, J.), dated October 5, 2017, and (2) an order of disposition of the same court dated October 17, 2017. The order of fact-finding, insofar as appealed from, found that Quran S. S. abused the children Wilhelmenia D. and Charisma D. The order of disposition directed Quran S. S., inter alia, to comply with a final order of protection and with supervision until April 16, 2018, released the child Charisma D. to the custody of the nonparty parents with supervision by a child protective agency, and declined to direct supervision of the child Wilhelmenia D., as she was then over the age of 18.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the portions of the order of fact-finding appealed from were superseded by the order of disposition and are brought up for review on the appeal from the order of disposition; and it is further,

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

The petitioner commenced this abuse proceeding on June 1, 2015, against Quran S. S., alleging, inter alia, that he was a person legally responsible for the care of the subject children, his half-siblings, and had committed sex offenses against the children Wilhelmenia D. and Charisma D. as defined in Penal Law article 130. After a fact-finding hearing, the Family Court found that Quran S. S. was legally responsible for the care of Wilhelmenia D. and Charisma D. and that he had sexually abused them. The court released Charisma D. to the custody of the nonparty parents and directed Quran S. S., inter alia, to comply with a final order of protection in favor of that child.

Because Wilhelmenia D. had reached the age of 18, the court concluded that no supervision of her was necessary. Quran S. S. appeals.

Contrary to Quran S. S.'s contention, the Family Court providently exercised its discretion in finding that he was a person legally responsible for the care of Wilhelmenia D. and Charisma D. within the meaning of the Family Court Act (see Family Ct. Act § 1012[g] ; Matter of Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377 ; Matter of Yolanda D., 88 N.Y.2d 790, 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ). A proper respondent in a Family Court Act article 10 proceeding is a person alleged to have abused or neglected a child, including "any parent or other person legally responsible for a child's care" ( Family Ct. Act § 1012[a] ). 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 Ct. Act § 1012[g] ). In evaluating whether an individual is a person legally responsible for a child, the court should consider "(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 parent(s)’ " ( Matter of Trenasia J. [Frank J.], 25 N.Y.3d at 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377, quoting Matter of Yolanda D., 88 N.Y.2d at 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ). Article 10 does not encompass those " ‘who assume fleeting or temporary care of a child,’ " but, rather, those who perform caretaking duties commonly associated with parents, such that they have acted as the functional equivalent of a parent ( Matter of Trenasia J. [Frank J.], 25 N.Y.3d at 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377, quoting Matter of Yolanda D., 88 N.Y.2d at 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ). This " ‘discretionary, fact-intensive inquiry ... will vary according to the particular circumstances of each case’ " ( Matter of Trenasia J. [Frank J.], 25 N.Y.3d at 1004, 10 N.Y.S.3d 162, 32 N.E.3d 377, quoting Matter of Yolanda D., 88 N.Y.2d at 796, 651 N.Y.S.2d 1, 673 N.E.2d 1228 ).

Here, the evidence adduced at the fact-finding hearing established that Quran S. S. transported Wilhelmenia D. to and from the paternal grandmother's home for weekend and summer break visits, where he also stayed overnight, fed Wilhelmenia D., and performed other related tasks at the request of the grandmother, who was visually impaired. Both Wilhelmenia D. and Charisma D. reported that Quran S. S. came to visit at the family home and watched them when their parents were out of the home. The sexual abuse is alleged to have occurred during these visits to the grandmother's house and when Quran S. S. watched Wilhelmenia D. and Charisma D. at the family home. Accordingly, we agree with the Family Court's determination that Quran S. S. was a person legally responsible for the care of Wilhelmenia D. and Charisma D. (see Matter of Unity T. [Dennis T.], 166 A.D.3d 629, 631, 87 N.Y.S.3d 330 ; Matter of Jonah B. [Riva V.], 165 A.D.3d 790, 792, 85 N.Y.S.3d 597 ; Matter of Mackenzie P.G. [Tiffany P.], 148 A.D.3d 1015, 1017, 48 N.Y.S.3d 778 ; Matter of Allyssa O. [Edward N.], 132 A.D.3d 768, 769, 18 N.Y.S.3d 392 ; Matter of Isaiah L. [Chris B.], 119 A.D.3d 797, 798–799, 990 N.Y.S.2d 82 ; Matter of Nathaniel TT., 265 A.D.2d 611, 613, 696 N.Y.S.2d 274 ).

In a child protective proceeding, the petitioner has the burden of proving abuse by a preponderance of the evidence (see Family Ct. Act § 1046[b][I] ). To satisfy this burden, the petitioner may rely upon prior out-of-court statements of the subject children, provided that they are sufficiently corroborated (see Family Ct. Act § 1046[a][vi] ; Matter of Nicole V., 71 N.Y.2d 112, 117–118, 524 N.Y.S.2d 19, 518 N.E.2d 914 ; Matter of Michael B. [Samantha B.], 130 A.D.3d 619, 620, 13 N.Y.S.3d 196 ; Matter of Mateo S. [Robin Marie Y.], 118 A.D.3d 891, 892, 987 N.Y.S.2d 616 ).

" ‘Any other evidence tending to support the reliability of the previous statements ... shall be sufficient corroboration’ " ( Matter of Zeeva M. [Abraham M.], 126 A.D.3d 799, 800, 5 N.Y.S.3d 258, quoting, Family Ct. Act § 1046[a][vi] ). "[T]he out-of-court statements of siblings may properly be used to cross-corroborate one another" ( Matter of Tristan R., 63 A.D.3d...