T., ZACHARY, MTR. OF ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    647
    CAF 10-00514
    PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.
    IN THE MATTER OF ZACHARY T.
    -----------------------------------
    GENESEE COUNTY DEPARTMENT OF SOCIAL               MEMORANDUM AND ORDER
    SERVICES, PETITIONER-RESPONDENT;
    ALAN D.T., SR., RESPONDENT-APPELLANT.
    MARY ANN BLIZNIK, CLARENCE, FOR RESPONDENT-APPELLANT.
    PAULA A. CAMPBELL, BATAVIA, FOR PETITIONER-RESPONDENT.
    LINDA M. JONES, ATTORNEY FOR THE CHILD, BATAVIA, FOR ZACHARY T.
    Appeal from an order of the Family Court, Genesee County (Eric R.
    Adams, J.), entered February 1, 2010 in a proceeding pursuant to
    Family Court Act article 10. The order, inter alia, adjudged that the
    subject child is a neglected child.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Respondent father appeals from an order that, inter
    alia, adjudicated the child who is the subject of this proceeding to
    be a neglected child. We conclude that Family Court properly
    determined following a fact-finding hearing that the father neglected
    the child by failing to protect him from being sexually abused by his
    older brother and his cousin. The child’s older brother testified
    that the father was aware of their sexual activity but took no action
    to prevent it from continuing. That testimony was corroborated by
    sworn statements that the child made to a police investigator. Under
    the circumstances, the court properly concluded that petitioner
    established by a preponderance of the evidence that the sexual abuse
    to which the child was subjected was “a consequence of the failure of
    the [father] . . . to exercise a minimum degree of care in providing
    the child with proper supervision or guardianship” (Nicholson v
    Scoppetta, 3 NY3d 357, 368).
    We reject the father’s contention that the court erred in
    determining that the child was derivatively neglected as a result of
    the father’s sexual abuse of his nephew, whose family shared a house
    with the father and his family during the relevant time period. We
    conclude that the father was the “functional equivalent of a parent in
    a familial or household setting” with respect to his nephew (Matter of
    Yolanda D., 88 NY2d 790, 796), and that his nephew was therefore “the
    -2-                           647
    CAF 10-00514
    legal responsibility of” the father within the meaning of Family Court
    Act § 1046 (a) (i).
    Entered:   June 17, 2011                       Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: CAF 10-00514

Filed Date: 6/17/2011

Precedential Status: Precedential

Modified Date: 10/8/2016