On November 21, 2007 counsels submitted briefs on the issue of whether respondent, Miguel Perez, biological grandfather (hereinafter "respondent,") is a person legally responsible [*2]for the subject child Leticia ^[FN1]. Respondent asserts that he is not a person legally responsible as defined by the Family Court Act (hereinafter "FCA") §1012(g) and, therefore, seeks dismissal of the instant abuse petition on jurisdictional grounds. Petitioner, the Administration for Children's Services (hereinafter "ACS") maintains that respondent, the biological grandfather of the subject child, is a proper respondent. Petitioner seeks a finding of abuse against respondent on the grounds that he sexually abused his granddaughter, Leticia, who was age 10 at the time.

Based on an examination of the relevant case law, the briefs submitted by counsels ^[FN2], and the evidence introduced during the fact finding hearing, including the testimony of respondent's daughter and the mother of the subject child, Ms. Benita Perez, the Court finds that respondent is a person legally responsible for the subject child. Further, the Court enters a finding of abuse against respondent, Miguel Perez. This written decision incorporates the Court's analysis.

ACS commenced this child protective proceeding with the filing of an abuse petition against respondent on August 11, 2006. The petition alleges that respondent violated FCA §1012(e)(iii) in that he committed or allowed to be committed a sex offense against such children as defined in Article 130 of the Penal Law or allowed the children to engaged in conduct described in Article 263 of the Penal Law. Further, the petition alleges, inter alia, that respondent repeatedly and forcibly had sexual intercourse with the subject child Leticia approximately four times during December 2005 to August 9, 2006, that respondent forced the subject child to perform oral sex on him, and that he fondled the child's breasts and genitals. Based on these allegations respondent was arrested at the time and remains incarcerated.

Fact finding was commenced on September 26, 2007 at which time petitioner ACS introduced into evidence an indictment of charges, a criminal complaint, a certification of indictment and disposition, and criminal court plea minutes pertaining to respondent's criminal court conviction in connection with the subject child in this case ^[FN3]. These criminal court documents were introduced and marked into evidence petitioner's one through four, respectively. Petitioner also called as a witness the respondent's daughter and mother of the subject child, Ms. Benita Perez (hereinafter "Ms. Perez"), to establish respondent as a person legally responsible. Ms. Perez was cross examined by the respondent and the law guardian. Subsequently, on November 5, 2007 counsels presented closing arguments and cited the testimony of Ms. Perez to both support and oppose a finding that respondent is a person legally responsible. The Court then requested legal briefs on the issue.

[*3]

FCA, section 1012(g) states:

A person legally responsible includes 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.

Petitioner ACS argues respondent is a person legally responsible because he satisfies each category outlined in the statute and essentially functioned as the equivalent of a parent to the subject children. In support, petitioner asserts that respondent had regular daily contact with the children, that he verbally disciplined the subject children by stating to the children "you shouldn't be misbehaving" and "they had to behave well", and that he was alone with two of the subject children (specifically Leticia) when he would take them to work with him and provided for their food and transportation. In contrast, respondent argues that he is not a person legally responsible for the subject children because the subject children and respondent had separate living space (respondent had a separate bathroom, kitchen, and sleeping quarters from the subject children) and respondent's daughter (Ms. Perez), the children's mother, paid rent to respondent for the space they occupied in the basement portion of respondent's apartment, and that respondent infrequently disciplined the children verbally and took the children to work with him only two to three times.

Based on the evidence presented in this case and the relevant statute and case law, the Court finds that respondent fits the statutory definition of "any other person responsible for the child's care" and, therefore, is person legally responsible for his granddaughter at the time of her abuse based on his actions as a functional equivalent of a parent in a familial or household setting. In Matter of Yolanda D., 88 NY2d 790 ( 1996) the Court of Appeals made clear that determining whether a particular person has acted as a functional equivalent of a parent is a discretionary fact intensive inquiry which will vary according to the particular circumstances of each case. The Court went on to outline specific factors to consider in determining whether a named respondent is a person legally responsible in a child protection proceeding within the catch all category of FCA §1012(g). These factors include but are not limited to the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by respondent over the child's environment, the duration of respondent's contact with the child, and respondent's relationship to the child's parent. Id. at 796. The Court noted that these factors are not exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination. Id.

Application of the specific factors outlined in Yolanda D. to facts in this case makes clear that respondent is the person legally responsible for his granddaughter, Leticia, at the time of her abuse. Respondent is the biological father of Ms. Perez, the mother to five of the six subject children. This fact was established through the testimony of Ms. Perez and is not in dispute. Further, Ms. Perez testified that she and the subject children have lived at the case address with the respondent and several other family members for the past 5 to 6 years and when asked whose apartment she and the children lived in she testified, "My father's."Thus, respondent, his daughter, the subject children and the other family members (Ms. Perez testified that her 2 [*4]brothers and 2 uncles also resided in the apartment) were all members of the same household.

Respondent's suggestion, therefore, that he and the subject children did not reside together in the same home is belied by the fact that Ms. Perez listed her father, the respondent, as one of the family members she and children lived with for the past 5 to 6 years. And, respondent's reliance on Matter of Austin JJ., 232 AD2d 736 (3rd Dept. 1996) in support of his argument that he is not a person legally responsible, in part because respondent and the subject children "...lived in completely separate households separated by a door," is misplaced. While Ms. Perez testified that the apartment consisted of two floors (basement and first floor) and that she and the children slept in the basement floor that was equipped with a bathroom and kitchen, her testimony makes clear that it was one residence that consisted of a basement and first floor that was her father's (the respondent's ) apartment ^[FN4].

The Court notes that in the Matter of Austin JJ ^[FN5] the third department dismissed the petition against the respondent because it found that the evidence, a conclusory statement by the caseworker that child's mother told her that she and respondent took care of the child, insufficient to establish that respondent in that case, the subjects child's grandmother, was a custodian. Id. at 737. In the instant case, no issue exists as to whether respondent was a permanent custodian for the subject children ^[FN6]. Although respondent is correct in asserting the presence of a person in a home standing alone is not sufficient to establish that person as a custodian or person legally responsible, the presence in the home combined with additional factors that are present in this case is sufficient to determine whether a person is acting as a functional equivalent of a parent.

It is clear to the Court that respondent exercised a significant amount of control over the environment of the subject children in that the subject children and their mother lived in respondent's apartment. As Petitioner, ACS, points out even though Ms. Perez and the children primarily resided in the basement floor of the apartment the family at times cooked and ate [*5]meals together. Although the record is not specific as to the number of times the entire extended family ate dinner together it was obvious through Ms. Perez's testimony that this was an activity that was done collectively with all members of the household, including the children. Additionally, petitioner maintains that respondent disciplined the subject children and reminded them to behave and listen to their mother ^[FN7].

The record is clear that respondent, who lived together with the subject children and their mother for the past 5 to 6 years, disciplined them when they misbehaved and admonished them to respect their mother.

It is also apparent to the Court that at the time of the sexual abuse respondent acted and exercised control over the subject child, Leticia. The record is clear that at the relevant time respondent was responsible for transporting the subject child to and from his job, for providing her with lunch and supervision throughout the day while she remained at work with him, and to ensure her safe return home at the end of the day. Ms. Perez testified that during the time the subject child, Leticia, was at work with respondent there were no other family members or adults present or responsible for her care other than the respondent.

Respondent's reference to the Matter of Anthony YY, 202 AD2d 740(3rd Dept. 1994) where the Court affirmed a finding that the respondent was not person legally responsible, is distinguishable from the facts presented in this case. In that case, the Court determined that the maternal great-grandmother was not a person legally responsible because there was insufficient evidence in the record that she acted in loco parentis or was the parental equivalent ^[FN8]. However, here the record sufficiently establishes that respondent acted as a parental equivalent both before and after the relevant time of the sexual abuse. The number of times that respondent brought the target child with him to work when she was under his direct supervision and control together with the daily contact and dominion he exercised over the home environment of the subject children, establishes that respondent is a person legally responsible within the meaning of FCA §1012 (g).

Having concluded that respondent is a person legally responsible and, therefore, a proper respondent in this child protective proceeding, the Court now addresses the issue of his alleged sexual abuse of his granddaughter. Pursuant to FCA §1046(b)(i), a finding of abuse of a child must be supported by preponderance of the evidence. Based on the evidence presented during the fact finding hearing, which included respondent's criminal court guilty plea to coercive sexual contact and endangerment of the target child, this Court finds that petitioner has met its burden of proof to establish by a preponderance of the evidence that respondent sexually abused the target child. As such, the Court enters a finding of abuse against respondent. (See In re [*6]Davina S. and Others 24 AD3d 188)^[FN9]

This constitutes the decision and order of the Court. The Court shall notify petitioner, respondent and law guardian of this decision.

_______________________________

Hon. Jeanette Ruiz, J.F.C