In the Matter of Kaliia F. (Anonymous). Administration for Children's Services, appellant; Jason F. (Anonymous), respondent. (Proceeding No. 1) In the Matter of Kha Lii F. (Anonymous). Administration for Children's Services, appellant; Jason F. (Anonymous), respondent. (Proceeding No. 2) Docket Nos. N-33434-13, N-33435-13
Zachary W. Carter, Corporation Counsel, New York, NY (Deborah
A. Brenner and Tahirih M. Sadrieh of counsel), for appellant.
Sosebee, Brooklyn, NY, for respondent.
Floyd, Brooklyn, NY, attorney for the children.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from an order of the Family Court, Kings County (Michael A.
Ambrosio, J.), dated October 2, 2015. The order, after a
fact-finding hearing, dismissed the neglect petitions without
that the order is affirmed, without costs or disbursements.
petitioner, Administration for Children's Services, filed
neglect petitions pursuant to Family Court Act article 10
against the respondent, which alleged that he had
derivatively neglected his children based upon prior
convictions of endangering the welfare of a child regarding
two other children. Following a fact-finding hearing, the
Family Court found that the petitioner failed to establish a
prima facie case of neglect and dismissed the petitions.
Court Act § 1012(f) defines a neglected child as one
"whose physical, mental or emotional condition has been
impaired or is in imminent danger of becoming impaired as a
result of the failure of his parent or other person legally
responsible for his care to exercise a minimum degree of
care" (Family Ct Act § 1012[f][i]) by, inter alia,
"unreasonably inflicting or allowing to be inflicted
harm, or a substantial risk thereof" (Family Ct Act
§ 1012 [f][i][B]).
the petitioner failed to establish by a preponderance of the
evidence (see Family Ct Act § 1046 [b][i]) that
the respondent posed an imminent danger to his children
(see Matter of Afton C. [James C.], 17 N.Y.3d 1). At
the fact-finding hearing, the petitioner presented a
caseworker as its only witness and documentation of the
father's criminal offenses. The caseworker testified to
previous statements allegedly made to her by a child
complainant in one of the respondent's prior criminal
cases. Family Court Act § 1046(a)(vi) provides that
"previous statements made by the child relating to any
allegations of abuse or neglect shall be admissible in
evidence" (Family Ct Act § 1046[a][vi]). Such
statements are admissible in a child protective proceeding,
even when the child is not the subject of the proceeding
(see Matter of Cory S. [Terry W.], 70 A.D.3d 1321;
Matter of Ian H., 42 A.D.3d 701). However, child
protective proceedings encompass only abuse or neglect by a
person who is a parent or other person legally responsible
for the child's care (see Family Ct Act §
1012), and the sections regarding admissibility of previous
statements of an abused or neglected child refer to a child
in the care of the respondent (see Family Ct Act
person legally responsible includes a custodian of the child,
which "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]). In
determining whether a respondent is such a custodian, the
court should consider the particular circumstances, including
"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)" (Matter of Yolanda D., 88 N.Y.2d
790, 796). A person legally responsible is not a caregiver
who has fleeting or temporary care of a child, such as a
supervisor of a play date (see id. at 796).
the petitioner failed to establish that the respondent was a
person legally responsible for the child whose statements it
wished to introduce through the testimony of the caseworker
(see Family Ct Act § 1012[g]; Matter of
Jasmine A., 18 A.D.3d 546, 548-549; cf. Matter of
Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1005).
Accordingly, the Family Court properly found that the
out-of-court hearsay statements of this child were not
admissible under the hearsay exception provided by Family
Court Act § 1046(a)(vi) (see Matter of Destiny
P., 48 Misc.3d 435, 442).
although the Family Court granted the petitioner adjournments
in order to procure this child's presence in court, the
child did not appear. The remaining evidence, which consisted
only of certain criminal court records regarding the
respondent's convictions of endangering the welfare of a
child, were insufficient for the court to make a finding of
derivative neglect (see Matter of Afton C. [James
C.], 17 N.Y.3d 1; Matter of Cadejah AA., 33
A.D.3d 1155). The records did not sufficiently detail the
facts underlying these criminal convictions. Without
additional evidence, expert or otherwise, on this record, the
petitioner failed to prove by a preponderance of the evidence
that the respondent posed an imminent danger to his children.
the Family Court properly dismissed the ...