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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 30 

In the Matter of Trenasia J. 

(Anonymous).

Administration for Children's 

Services,

 Respondent;

Frank J. (Anonymous),

 Appellant.

(And Three Other Proceedings.)

Maxine H. Park, for appellant.

Barbara H. Dildine, for the J. children.

Kathy Chang Park, for respondent.

Marcia Egger, for the child Brije D.

Bronx Defenders et al., amici curiae.

MEMORANDUM:

The order of the Appellate Division should be affirmed,

without costs.

The primary issue in this appeal is whether appellant

Frank J. was a "person legally responsible" (PLR) as defined by

Family Court Act § 1012 (g) and our decision in Matter of Yolanda

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D. (88 NY2d 790 [1996]). We agree with the Appellate Division,

and disagree with the dissent, that the evidence was sufficient

to establish that Frank J. was a PLR for the subject child at the

relevant time. 

Frank J. is the uncle of the subject child through

marriage, and the father of three children (the J Children). In

February 2011, the Administration for Children's Services (ACS)

filed petitions against Frank J. alleging that according to

statements made by the subject child, Frank J. "forcibly

attempted to have sexual intercourse" with her "after entering

the bathroom while she was taking a shower" during an overnight

visit at Frank J.'s home on December 31, 2010. The child, who

was 11 years old at the time of incident, alleged that while she

was taking a shower, Frank J. entered the bathroom and asked her

if she wanted to make $5, warning her against telling her mother. 

The child alleged that Frank J. forcibly grabbed her by her hips,

pulled her towards him, and attempted to pull out his penis. The

child then ran crying to her cousin's room, put on some clothes

and ran out of the house to a nearby supermarket where an

ambulance was called. 

The Family Court Act defines a "respondent" in a child

protective proceeding as "any parent or other person legally

responsible for a child's care who is alleged to have abused or

neglected such child" (Family Court Act § 1012 [a]). A person

legally responsible for a child is defined as 

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"the 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 Court Act § 1012 [g]). 

Frank J. moved to dismiss the petition for want of

jurisdiction, arguing that he was not a PLR because he was

neither the guardian nor custodian of the child, and she was

never a member of his household. The attorney for the J Children

supported Frank J.'s motion to dismiss. After a hearing on the

motion to dismiss, where the court heard testimony from the

responding police officer and the child's mother, Family Court,

Kings County, denied Frank J.'s motion to dismiss, stating that

there was no "serious question that [Frank J.] is a [PLR] within

. . . the meaning" of the statute. The matter then proceeded to

a fact-finding hearing, at which the subject child, the

responding police officer, and Frank J. testified. The child's

testimony essentially tracked the allegations of the complaint,

as did the testimony of the responding officer, who reported the

child's version of the incident. Frank J. denied the

allegations, and testified that the child had become upset when

he scolded her for eating in one of the bedrooms. Upon

conclusion of the testimony, the Family Court held that Frank J.

abused the child "by committing an act of attempted sexual abuse

in the [s]econd [d]egree" and found that, as a result, he had

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derivatively neglected his own children. 

The Appellate Division affirmed (Matter of Trenasia J.,

107 AD3d 992). The court stated that "[c]ontrary to [Frank J.'s]

contention, . . . Family Court correctly found him to be a [PLR]

within the meaning of the Family Court Act" (107 AD3d at 993,

citing Matter of Yolanda D., 88 NY2d 790, 793 [1996], Matter of

Christopher W., 299 AD2d 268 [1st Dept 2002]). The court

determined that ACS established by a preponderance of the

evidence that Frank J. abused the child. Additionally, the court

stated that the finding of derivative neglect was also proper

because Frank J.'s "attempt to sexually abuse his niece while his

two young daughters were home, at a time when he was the sole

adult present, evinced a flawed understanding of his duties as a

parent and impaired parental judgment" (id. at 993-994). This

Court granted Frank J.'s motion for leave to appeal. 

Matter of Yolanda D. (88 NY2d 790 [1996]) is this

Court's seminal decision on the factors to consider in

determining who is a PLR under Family Court Act § 1012 (g). In

that case we recognized 

"that parenting functions are not always

performed by a parent but may be discharged

by other persons, including custodians,

guardians and paramours, who perform

caretaking duties commonly associated with

parents. Thus, the common thread running

through the various categories of persons

legally responsible for a child's care is

that these persons serve as the functional

equivalent of parents" 

(id. at 795). We held that deciding whether "a particular person

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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" (id. at 796). We

listed factors to be considered when determining who is a PLR,

which include (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 parents" (id.). This

Court also stated that "article 10 should not be construed to

include persons who assume fleeting or temporary care of a child

such as a supervisor of a play-date or an overnight visitor or

those persons who provide extended daily care of children in

institutional settings, such as teachers" (id.). 

Yolanda D. concerned whether a respondent uncle, who

was alleged to have abused his 12-year-old niece during her

visits to his Pennsylvania home, was a PLR. The uncle described

the contact between him and his niece as six to seven visits

during the summer of 1991, with three to four overnight visits. 

The uncle's girlfriend who lived in the house at the time stated

that the niece spent two weekends a month during the summer at

his home. The evidence indicated that the niece and her mother

lived in New York and the niece's mother did not accompany her on

these visits to Pennsylvania. Additionally, the uncle regularly

visited his niece's home. Family Court and the Appellate

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Division determined that the uncle was a PLR, and we agreed

because the uncle was "regularly in the same household as [the

child] during the relevant time, an environment he controlled,

and he regarded his relationship with [the child] as close and

familial" and further he permitted the child "to stay overnight

in his home, [thereby] provid[ing] shelter, a traditional

parental function, in an area geographically distant from the

child's own household" (id. at 797).

Based on the evidence admitted during Frank J.'s

hearing, there is record support for Family Court's affirmed

finding of fact that Frank J. was a PLR under Family Court Act §

1012 (g) and Yolanda D. With respect to "the frequency and

nature of the contact," and "the duration of the respondent's

contact with the child," under Yolanda D, the responding police

officer testified without objection that the child informed her

that she had been staying at Frank J.'s home for a week prior to

the incident. The child's mother testified that during the year

before this incident, the child had visited Frank J.'s home eight

or nine times and four of those occasions were overnight visits. 

There was also testimony that Frank J. and the child interacted

at family functions such as family reunions, holidays and

birthday parties. Thus, the total contacts between Frank J. and

the child were significant. 

As to "the nature and extent of the control exercised

by the respondent over the child's environment," this incident

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occurred in Frank J.'s home during an overnight visit, and he was

the only adult present at the time. Additionally, Family Court

noted in its oral decision denying Frank J.'s motion to dismiss

that the child's mother "testified that she expected her sister

to care for the child, but if the sister wasn't there then [Frank

J.] was expected to care for the child." Finally, in considering

"respondent's relationship to the child's parents," Frank J. is

related to the child through marriage, as his wife's sister is

the child's mother. Although the existence of a familial

relationship is not dispositive, it is appropriately considered

in determining whether a respondent is a PLR. 

Applying the Yolanda D. factors to these facts -- given

the nature and length of the contacts between Frank J. and the

child, his control over the child's environment and their

familial relationship -- record support exists for the lower

courts' determination that Frank J. is a PLR under Family Court

Act § 1012 (g) and for the determination of derivative neglect.

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Matter of Trenasia J.

No. 30 

RIVERA, J.(concurring in part and dissenting in part):

In order for an individual to be a "person legally

responsible for a child's care" ("PLR") under Family Court Act 

§ 1012 (g), and thus a proper respondent in a child protective

proceeding, such person must serve "as the functional equivalent

of a parent in a familial or household setting" (Matter of

Yolanda D., 88 NY2d 790, 796 [1996]). As interpreted by this

Court, section 1012 (g) does not extend to "persons who assume

fleeting or temporary care of a child" (id.). Given the need in

these cases for judicial findings regarding personal

relationships and interactions, as well as an assessment of the

parental functions undertaken by nonparents, a proper

determination of whether a respondent's actions are "analogous to

parenting" requires a well-developed factual record of the nature

and extent of a respondent's caretaker responsibilities. 

Unlike the majority I consider the record in this

appeal insufficient, as a matter of law, to support the Family

Court's determination that Frank J. is a PLR because the record

is devoid of facts regarding the nature and duration of Frank

J.'s caretaker responsibilities, especially given the mother's

testimony that Frank J.'s wife, the child's aunt, was in charge

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of the child's care when the mother was absent. Moreover, the

record suggests that the Family Court relied disproportionately

on some undefined normative-based assumption about Frank J. and

the child's familial bond, in contravention of this Court's

interpretation of the statute. I therefore dissent.

In Yolanda D. this Court set forth a non-exhaustive

list of factors that a court should consider as part of its

"discretionary, fact-intensive inquiry" into whether a person is

a functional equivalent of a parent (id.). The Court identified

as relevant "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)" (id.). These

factors "illustrate some of the salient considerations in making

an appropriate determination" (id.). No one factor is

dispositive, but rather each is to be accorded a weight

appropriate to the "circumstances of the particular case,"

mindful that the "purpose of the inquiry will remain constant"

(id.). Essentially, they embody this Court's recognition that

the focus is on the person's responsibility for "caretaking

duties commonly associated with parents" and the person's

connection to the child (id. at 795).

Careful consideration of the record herein, with an eye

to the "purpose of the inquiry" attendant to a section 1012 (g)

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PLR assessment, establishes that it does not support a

determination that Frank J. is a PLR within the meaning of

section 1012 (g). The majority concludes otherwise, and,

applying the factors set forth in Yolanda D., relies, in part, on

the sum total of the contacts between Frank J. and the child,

characterizing them as "significant." However, the record is

simply not clear as to the contacts between Frank J. and the

child. Significantly, the majority's analysis fails to consider

Frank J.'s actual responsibilities for the child's care during

any of the visits to the home, or the nature of the interactions

during the times when they are supposedly in contact. Yet, these

details are essential to the section 1012 (g) "fact-intensive

inquiry." Of course, it is simply not possible to assess the

relevant facts because the record here is best characterized by

its sheer vagueness regarding the contacts and Frank J.'s role. 

Indeed, it lacks critical details as to the nature and extent of

Frank J.'s contacts and responsibilities over the child necessary

to elevate him to "the functional equivalent of a parent" (id. at

796).

 As is the case in this appeal, Yolanda D. involved an

uncle/niece relationship. However, unlike the facts that

established the uncle's parenting role and close relationship

with his niece in Yolanda D., the record here lacks evidence of a

similar bond or of Frank J.'s parental responsibilities during

the few times that he interacted with the child. In Yolanda D.

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the niece visited her uncle's apartment unaccompanied six or

seven times, approximately every other week, during the summer in

which the abuse occurred. Here, Frank J. had some unspecified

amount of contact with the child a total of eight or nine days

across an entire year, which included traditional family

gatherings like cookouts and birthday parties.1 While in both

Yolanda D. and the instant appeal the children stayed overnight

approximately four times, in Yolanda D. those visits were during

a concentrated period of the summer. Whereas here, the mother

testified that the child stayed overnight three times in February

the year preceding the abuse and possibly on Thanksgiving Day in

November. Thus, the child went almost a year without visiting

her uncle and aunt's home. Moreover, in Yolanda D. the visits

were planned specifically to allow the niece to spend time with

the uncle. Here, the mother testified that the child went to the

home of the uncle and aunt to visit her cousins, Frank J. and the

aunt's children. When asked why her daughter went to the home,

the mother did not even mention Frank J. Instead, she said her

1

The majority appears to consider Officer Alonso's hearsay

statement that the child told her she was staying at Frank J.'s

house one week (Maj Op at 6). I find it unnecessary to consider

whether Frank J.'s challenge to the officer's testimony is

preserved for our review because even taking into consideration

the officer's statement, the child's mother contradicted the

hearsay when she testified that the child was staying only one

night. Also, the mother testified the hearsay was incorrect:

"[the child] hasn't spent the night over [at Frank J.'s home]

like a week straight like it was said." Moreover, Family Court's

ultimate decision that Frank J. was a PLR neither mentions nor

relies on this hearsay. 

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daughter visited "because she loves my sister and her cousins,

she wants to play with her cousins." Thus, far from establishing

that Frank J. and the child interacted in a parent relationship,

and that they were "pretty close," as was the case of the uncle

and niece in Yolanda D., here the evidence establishes that Frank

J. and the child had limited contact, usually in the company of

other family members, and that the child visited the home because

she wanted to be with her aunt and cousins.

Moreover, Frank J., unlike the uncle in Yolanda D., was

not the person primarily responsible for the child during her

visits to the household. According to the mother's testimony, it

was her sister, Frank J.'s wife and the child's aunt, who was

responsible for the child when she visited Frank J.'s home. The

mother expected that on those occasions when the aunt was not

present Frank J. would care for the child. Meaning that the

mother left the care of the child by default to Frank J. only

when the aunt was unavailable. However, there is no factual

rendition -- from the mother or anyone else -- establishing the

frequency and nature of Frank J.'s contact with the child during

those times when the aunt was absent. The record thus

establishes that so long as the aunt was present, Frank J. did

not have the type of control and responsibility for the child

that was crucial to the PLR finding in Yolanda D.. 

Additionally, Family Court appears to have placed undue

significance on what it found to be a "normal uncle/niece

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relationship" between Frank J. and the child. However, Family

Court failed to define or explain what it meant by "normal." In

any case, to the extent it relied on its own understanding of a

normative-based assessment of what constitutes a family, that was

error, and in contravention of the statutory intent. As this

Court made clear in Yolanda D., section 1012 (g) "embod[ies]

legislative recognition of the reality that parenting functions

are not always performed by a parent but may be discharged by

other persons" (id. at 795). The Court specifically identified

persons who are not "family" in the traditional sense -- such as

paramours -- as those "who perform caretaking duties commonly

associated with parents" (id. at 794-795 [noting that

"custodians, guardians and paramours" may discharge parenting

functions and the legislative history demonstrates an intent to

include persons "without legal custody of the child() within the

jurisdiction of the family court"], citing Letter from sponsor of

an amendment to section 1012 [g] to the Governor, Bill Jacket, L

1972 ch 1015). Moreover, "respondent's relationship to the

child's parent(s)" is but one variable for the court's

consideration in its PLR determination, and is by no means

outcome determinative. The application of those factors to the

facts in Yolanda D. is instructive, for if the existence of a

familial relationship were enough to satisfy the statute, there

would have been no need to discuss the frequency of visits and

the close relationship between the uncle and child in that case.

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Without factual information as to the nature and

frequency of Frank J.'s contact with the child, the record is

insufficient to establish that he served as a functional

equivalent of a parent in a household setting (id. at 795). 

Rather, Frank J.'s relationship to the child is more akin to that

of a "person[] who assume[s] fleeting or temporary care of a

child" (id. at 796). Therefore, the Appellate Division

erroneously affirmed the finding that Frank J. was a person

legally responsible for the child's care within the meaning of

section 1012 (g), and I would reverse as related to the petition

alleging attempted abuse of the child.

With respect to the petitions concerning Frank J.'s

three children, I agree with the majority that the Appellate

Division properly affirmed Family Court's derivative neglect

determination. An Article 10 child protective proceeding to

determine abuse or neglect "may be originated by a child

protective agency" (Family Court Act § 1031 [d]), at which the

agency must establish by a preponderance of the evidence that

respondent derivatively neglected respondent's own children (see

Matter of Tammie Z., 66 NY2d 1, 3 [1985]). At such proceeding,

"proof of the abuse or neglect of one child shall be admissible

evidence on the issue of the abuse or neglect of any other child"

(Family Court Act § 1046 [A] [i]). A "child" is defined as "any

person or persons alleged to have been abused or neglected"

(Family Court Act § 1012 [b]).

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Here, the Administration for Children's Services filed

petitions, in its role as child protective agency, against Frank

J., alleging he derivatively neglected his children, ages 11, 10

and 2, based on his abuse of his niece while his daughters were

present in the home. As the father of the three children named

in the petitions, Frank J. clearly falls within the statutory

definition of a "respondent" for purposes of this child

protective proceeding (Family Court Act § 1012 [a]

["'(r)espondent' includes any parent"]). The fact that Frank J.

does not meet the statutory definition of a PLR concerning the

care of another child does not foreclose the agency from

proceeding against him with respect to his own children (see

Matter of Jamel T., 120 AD3d 504, 505 [2d Dept 2014] [holding

that allegations of abuse against child who is not "subject of

... proceedings may form the basis of a finding that (respondent)

derivatively neglected children"]; Matter of Kennedie M., 89 AD3d

1544, 1545 [4th Dept 2011] ["court may make a finding of

derivative neglect even if the child who was sexually abused is

not the subject of the neglect petition"]; Matter of Kole HH., 61

AD3d 1049, 1052-1053 [3d Dept 2009] [holding that although

respondent did not qualify as a PLR with respect to the victim of

abuse, that abuse could still form the basis of a derivative

neglect finding as against respondent's own children]). Thus,

the agency was within its authority to present evidence of Frank

J.'s abuse of the child in order to meet its burden.

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The evidence at the hearing established Frank J.'s

attempted abuse, described by the child herself. Moreover, it is

undisputed that the acts occurred while two of Frank J.'s

children were home, within earshot of one of his daughters. On

this record, the evidence is sufficient to support a finding of

derivative neglect.

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Order affirmed, without costs, in a memorandum. Judges Read,

Pigott, Abdus-Salaam and Fahey concur. Judge Rivera dissents in

part in an opinion in which Chief Judge Lippman and Judge Stein

concur. 

Decided May 5, 2015

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