On June 18, 2013, five-week-old Jayden M. died in the Bronx. In an amended petition dated June 28, 2013, the Administration for Children's Services ("ACS" or "petitioner") alleged that Jayden's surviving half-brother, eight-year-old Carmelo G., was an abused child, based on what happened to Jayden. The respondents are the boys' mother, Ms. Joy M., and Carmelo's father, Michael G.. The gravamen of the petition is that on the evening of June 17 and early morning of June 18, Ms. M. and Mr. G. were in an intoxicated stupor, and Jayden was discovered by his maternal grandmother — purple, not breathing, and with blood coming out of his nostrils — wrapped in his mother's legs, with Mr. G. asleep in the same bed. On February 7, 2014, Ms. M. submitted to the Court's jurisdiction pursuant to Family Court Act § 1051(a), and on consent of the parties the Court made a finding of neglect against her.

Petitioner has three claims against Mr. G.. First, ACS alleges that by his actions, he abused Jayden.^[FN1] Second, based on his abuse of Jayden, ACS alleges that Carmelo is derivatively abused. (These two claims will be collectively referred to as "the PLR claims.") Third, ACS alleges that based on his actions, Mr. G. directly abused or neglected Carmelo (the "direct claim"). The first two claims are predicated on Mr. G.'s purported status as a person legally responsible for Jayden and are the subject of Motion # 3, now pending before the Court.^[FN2]

Fact-finding against Mr. G. commenced on March 20, 2014, with additional dates on March 21, March 27, July 16 and August 15. The record to-date includes the complete testimony of child protection specialist Trina McCauley; medical examiner Dr. Monica Smiddy; and NYPD Detective Francis Orlando.^[FN3] On the August 15 date, the petitioner presented the testimony of Ms. [*2]M.. Ms. M. became extremely emotional and was unable to answer more than approximately three questions. In a robing room conference, counsel for petitioner indicated that she needed Ms. M.'s testimony to fully establish Mr. G.'s status as a person legally responsible for Jayden, and that many of the PLR-related questions would focus on the events surrounding Jayden's death. Mr. G.'s counsel suggested that no matter what Ms. M. might say in her testimony, petitioner will be unable to make a prima facie case in support of the PLR allegation.

In order to expedite the proceeding and possibly spare Ms. M. the emotional trauma of testifying about Jayden's death, the Court suggested the following procedure, to which all parties consented. Petitioner's counsel would submit a written proffer containing the expected testimony of Ms. M. in support of its PLR allegation ("the Mother's proffer"). Mr. G.'s counsel would then file a motion to dismiss — a hybrid of sorts between a § 3211(7) motion and § 4401 motion — in which she would assume for the sake of argument that all the facts in the Mother's proffer were true.

It is just such a motion, docketed as Motion # 3, which is currently before the Court. In consideration of this motion the Court has reviewed the Mother's proffer (an affirmation by petitioner's counsel dated September 19, 2014); the motion by Mr. G.'s counsel, dated October 31, 2014; petitioner's opposition papers, dated November 17, 2014; and the opposition papers filed by the attorney for the child, dated November 14, 2014.^[FN4] For the reasons that follow, the MOTION IS DENIED.

For the sake of the motion, the following facts — a combination of facts from the testimony of petitioner's witnesses and the Mother's proffer — are assumed to be true, and they are to be viewed in the light most favorable to the petitioner.

The operative statute is Family Court Act § 1012(g) which provides:

The non-exhaustive list of Yolanda D. factors includes:

Building on this principle are cases holding that "substantial familiarity" between the child and the respondent is a factor weighing in favor of a PLR finding, and that "substantial familiarity" can be inferred from the record. See, e.g., Matter of Keoni Daquan A., 91 AD3d 414 (1st Dep't. 2012); Matter of Christopher W., 299 AD2d 268 (1st Dep't. 2002). When a man is the boyfriend of the subject child's mother, and the father of her other children who reside in the same home as the subject child, an inference of substantial familiarity between the respondent and the subject child may be warranted. Keoni Daquan A., 91 AD3d at 415.

Considering the totality of the facts asserted by petitioner, taking them all as true for the sake of this motion, and viewing them in the light most favorable to the petitioner, Szczerbiak v. Pilat, 90 NY2d 553, 554 (1997), the Court concludes that if Ms. M. testifies in Court as to the facts in her proffer, the petitioner will have made out a prima facie case that Mr. G. is a PLR for Jayden.

This case presents the difficult problem of performing a functional assessment of parenting behavior with respect to the care of a five-week-old child. The older a child is, the more data is necessarily available to determine if a given individual has performed parent-like care for him. For a young infant, there may only be a few days or weeks of data by which to make the assessment of a PLR. Based on the facts presented in this motion, Mr. G. performed some parenting duties for Jayden in a family environment, but his physical presence was insignificant enough that it is difficult to distinguish him from the non-PLR "overnight visitor" described in Yolanda D. Mr. G. did not meet the child until his first visit to New York in June, when the child was already five weeks old. He did spend a portion of each day of his visit prior to the child's death with Ms. M. and Jayden, June 15, 16, and17, and she did leave the child in his care for about an hour on the evening he died. However, the child was sleeping in his stroller for this period. There is no evidence that Mr. G. ever changed a diaper, fed the child a bottle, or rocked him to sleep.

However, in this Court's view, in the circumstances of this case, where the child was five weeks old, it is appropriate to supplement the facts concerning which adult(s) provided parent-like care to the infant with additional information about the expressed intentions of individuals to be the long-term caretaker for the child than might otherwise be the case. Mr. G.'s argument that Yolanda D. held that "future intent was not a factor for consideration" (Brown memo of law at 8) [*4]overstates the holding in that case. Yolanda D. does not stand for the proposition that intent is never a factor for PLR analysis; rather, the case makes clear that "a person acting in loco parentis intends to assume the responsibility to support and care for the child on a permanent basis," and that this category of person is a subset of a larger category consisting of people who "ha[ve] acted as the functional equivalent of a parent. . . in a household or family' setting," which is the PLR group under Family Court Act § 1012(g). Yolanda D., 88 NY2d at 796.

Indeed, in other areas of family law, courts look to individuals' intentions, in part, to determine their legal status with respect to very young children. For example, when a child is under six months old, a man may qualify for the safe harbor of Domestic Relations Law § 111(e)(1) (so-called "consent father" status) based on his prompt "manifestation of parental responsibility." Matter of Raquel Marie X., 76 NY2d 387, 408 (1990). Because it is difficult to demonstrate the intent to parent through actual parenting when there are limited opportunities to do so due to the child's young age, this manifestation may include acts unrelated to his interaction with the child, such as taking steps to establish legal paternity and paying the expenses of pregnancy and birth. The relevant factors are those "evincing a commitment to the child." Id.; cf. Johnson v. Calvert, 5 Cal.4th 84, 93 (1993) (in gestational surrogacy arrangement, the legal mother is the woman who "intended" the birth of the child — the egg donor — and not the woman who carried and birthed the child). The concept of "legal parent" for the purposes of the Domestic Relations Law and Social Services Law is a narrower category than "person legally responsible" within the meaning Family Court Act ¶ 1012(g). Thus, a person who takes steps that, if he were the biological parent would qualify him as a member of the former, should, as a biological stranger, properly deem him a member of the latter.

Conversely, the longer a man functions as a parent and acts as a father towards a child, the more likely it is he will be equitably estopped from denying paternity, even to the extent that a DNA test will not be ordered. Shondel J. v. Mark D., 7 NY3d 320, 327-28 (2006). It thus follows that when, due to the child's very young age there has not been sufficient time to collect data concerning an adult's functional behavior towards the infant, the person's intentions should hold greater weight.

Viewed in the light most favorable to the petitioner, and drawing all inferences in its favor, the universe of facts considered as part of this motion establish that Mr. G. intended to parent Jayden. He proposed marriage to his girlfriend, the mother of his eight-year-old son, even though she was three months pregnant with another man's baby. He made plans to move the as-yet-unborn baby, his son, and his fiancée to Georgia. He traveled to New York, at her invitation, to attend the baby shower. He visited the baby daily during a subsequent trip to New York for a family funeral. He evinced a clear emotional connection to Jayden when, upon learning of what would happen at the child's autopsy, he cried, "I don't want them chopping my baby up."

An additional factor weighing in favor of a PLR finding from this record is the fact that Mr. G.'s own son was Jayden's brother and was being raised in the same household by the children's mother. Mr. G. and Ms. M. had a long romantic history together, and from the facts, it [*5]can be inferred that Mr. G. was in the process of developing a substantial familiarity with the Jayden, even though he was not his biological father.

For the foregoing reasons, Motion # 3 is DENIED. In the event petitioner is unable to establish at trial the facts as stated in the Mother's proffer, respondent has leave to file a new § 4401 motion based on the record as it exists at the close of petitioner's case. Fact-finding in this matter will continue as scheduled for petitioner's case on December 8, 2014, from 2pm to 4:30pm, in part 2.

Bronx, NY