In the Matter of Raelene B. and Others, Alleged to be Neglected Children. Essex County Department of Social Services, Respondent; Alex D., Appellant.
Calendar Date: December 17, 2019
A. Rowley, Glens Falls, for appellant.
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.
P. Curran, Hebron, attorney for the child.
Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds
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.
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.
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 ,
quoting Matter of Nathaniel TT., 265 A.D.2d 611, 612
, lv denied 94 N.Y.2d 757');">94 N.Y.2d 757 ; see
Matter of Gary J. [Engerys J.], 154 A.D.3d 939, 940-941
; Matter of Jamaal NN., 61 A.D.3d 1056, 1057
, lv denied 12 N.Y.3d 711');">12 N.Y.3d 711 ).
"[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 ,
quoting Matter of Yolanda D., 88 N.Y.2d 790, 796
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; Matter of Unity T. [Dennis
T.], 166 A.D.3d 629, 631 ; Matter of Gary J.
[Engerys J.], 154 A.D.3d at 941).
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  [brackets omitted],
quoting Nicholson v Scoppetta, 3 N.Y.3d 357, 368
; 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  [internal quotation marks and citations omitted];
accord Matter of Nathanael E. [Melodi F.], 160
A.D.3d 1075, 1076 ). 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).
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 ;
Matter of Heather WW., 300 A.D.2d 940, 941 ).
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 events.
Supreme Court found that on at least seven occasions
respondent exposed his genitals and masturbated in the
presence of the niece, that at times he rubbed her upper
thigh while doing so, and that the older child was sitting
next to the niece on at least one of those occasions, all of
which created an imminent danger of ...