Matter of Nassau County Dept. of Social Servs. v J.P.
Annotate this CaseDecided on October 30, 2008
Family Court, Nassau County
In the Matter of Nassau County Dept. Of Social Services, Petitioner, o/b/o A. L.
against
J.P., Respondent.
XX-XXXX-XX
Ellen R. Greenberg, J.
The Presentment Agency has moved this Court, by way of Notice of Motion, for
summary judgment in this abuse proceeding.
The Respondent has submitted papers in opposition to Petitioner's motion and has moved to dismiss the petition. The Attorney for the target child, A. L., has submitted an Affirmation in Support of the Motion for Summary Judgment. The Attorney for the P. children has submitted an Affirmation in Opposition to the Respondent's Motion to Dismiss. The Petitioner has submitted reply papers in opposition to the Motion to Dismiss.
Now, upon a reading of all the papers and inquiry into the facts and circumstances of the case, the Court makes the following findings of fact and conclusions of law:
Petitioner's application is based upon the Respondent's plea of guilty to the crimes of Criminal Sexual Act in the Second Degree, a class D Felony, a violation of Penal Law Section 130.45(1), and Rape in the Second Degree a violation of Penal Law Section 130.30 (1), a class D Felony, as well as four counts of Criminal Contempt in the Second Degree in violation of Penal Law Section 215.50, all Class A misdemeanors. The respondent plead guilty to committing acts of sexual intercourse with his daughter's friend, A. L., who was fourteen (14) years old at the time of the commission of the act. Petitioner submits that these acts are the identical subject matter of this child protective proceeding. Additionally, the petitioner seeks derivative findings of abuse regarding the children, A. P., E. P., and S. P.
The Attorney for the Child, A. L., supports the granting of the summary judgment motion as it would be in the best interests of the child. A. L.'s attorney states that her client spent an inordinate amount of time with Respondent who gained her trust, holding himself out as a surrogate parent figure, confidante and role model, while seducing her. [*2]
Respondent's attorney submits that the respondent was not a "person legally responsible" for A. L. and that this is a triable issue of fact.
Summary judgment is appropriate where there is no triable issue of fact. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Summary judgment "is often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue . . . . It does not deny the parties a trial; it merely ascertains that there is nothing to try." (Siegel, NY Prac § 278, at 459-460, [4th ed.]), Gilson v. Metropolitan Opera, 5 NY3d 574 (2005).
Article 10 of the Family Court Act defines "person legally responsible" as including "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." NY Fam. Ct. Act §1012(g).
Before summary judgment may be considered, the court must determine whether the Respondent acted as A. L.'s functional equivalent of a parent. This determination is discretionary and fact-intensive. In re Yolanda D., 88 NY2d 790 (1996). "Factors such as 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) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g)." Id. at 796.
The petition alleges that the Respondent is a person legally responsible for the subject child under the Family Court Act. However, a hearing is necessary to determine whether or not the Respondent is a person legally responsible for the subject child.
As to his own children, A. P., E. P., and S. P., Respondent's attorney objects to an Order granting Summary Judgment for a finding of derivative neglect because nowhere in the Respondent's plea or sentence was an admission made as to any conduct to his own children.
A finding of derivative neglect is appropriate when the evidence regarding the abuse of the target child demonstrates that the respondent's parental judgment is so impaired that it presents a substantial risk of harm to any child in his or her care. Matter of Doe v. Francis TT.; 2007 NY Slip Op 9985 (App. Div., 3d Dept).
When the father of minor children spent time with his children's friend smoking marihuana with her, exposing his penis to her, and pushing her onto a bed where he touched her breasts and vaginal areas he was found to have derivatively neglected his own two children. Matter of Jewle I. v. Julian K., 2007 NY Slip Op 7780 (App. Div., 3d Dept). The evidence established that the abuse of the children's friend was sufficient to find derivative neglect since it revealed fundamental failings in Respondent's parental judgment which created a substantial risk for his own children. Id. at 146.
The Respondent herein plead guilty to the crimes of Criminal Sexual Act in the Second Degree and Rape in the Second Degree which were committed against his daughter's best friend, [*3]A. L., who was 14 years old at the time these acts were committed. The Respondent's three (3) children were present in the home at the time these acts were committed.
The Attorney for the Child submitted minutes from the criminal proceeding which included victim impact statements from A. L., J. L. (A.L.'s mother) and B. L. (A.L.'s brother). A statement written by the victim specifying the behavior of the Respondent in great detail was attached. The Presentment Agency attached the signed affidavit of J. L. to their Affirmation in Opposition to the respondent's motion to dismiss. In his Motion to Dismiss, Respondent has failed to submit or rebut the proof submitted by the Attorney for the Child
In light of the above, it is hereby;
ORDERED, that the portion of the Presentment Agency's Motion for Summary Judgment which requests a finding of derivative neglect as to the respondent's own children A. P., E. P., and S. P. is granted; and it is further
ORDERED, that the portion of the Presentment Agency's Motion for Summary Judgment, which requests summary judgment regarding the target child, A. L., is held in abeyance, pending a hearing to determine the issue as to whether the Respondent was a "person legally responsible"; and it is further
ORDERED, that the Respondent's Motion to Dismiss is denied, except that portion which requests a hearing to determine whether the Respondent was a "person legally responsible" for the target child, A. L.; and it is further
ORDERED, that the above-stated hearing shall commence before this Court at 9:30AM on
the __ day of November, 2008.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT
ENTER
_____________________________
Honorable Ellen R. Greenberg
Judge of the Family Court
Dated: October 30, 2008
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