From: Deleted my name

To: Deleted my professor’s name

Date: November 24, 2020

Regarding: Custody of Carloyn

Memo

Questions Presented:

1. Does the extent and nature of Joel’s contact with Carolyn make Joel a “[p]erson legally

responsible” under the Family Court Act?

2. Do Joel’s outbursts towards Carolyn constitute abuse or neglect under the Family Court

Act?

Short Answers:

1. Yes. Joel’s contact with Carolyn is frequent and habitual, and Joel assumes a parent-like

role with Carolyn. This is sufficient to make Joel a person legally responsible under the

Family Court Act.

2. Yes and no, respectively. Joel’s outbursts towards Carolyn are unlikely to be sufficient to

constitute abuse towards Carolyn under the Family Court Act. However, the Family

Court Act has a lesser requirement for a finding of neglect, and Joel’s physical behavior

towards Carolyn, in particular throwing his phone at her and pushing her down, are

plausibly sufficient to constitute neglect under the Family Court Act.

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Facts

Christine is the mother of Carolyn, age 15, and Christine is a cousin of Joel’s deceased

wife. Due to Christine’s long work hours, Christine frequently leaves Carolyn in Joel’s care.

Carolyn is left in Joel’s care at least once per week, and she stays with Joel overnight

approximately once every alternating week. A series of acts by Joel have lead Child Protected

Services to investigate Joel for abuse or neglect. In an incident in May 2020, Joel smacked a

quarter out of Carolyn’s hand after Carolyn repeatedly tapped the quarter, causing a noise that

Joel found irritating. Christine was present, and chastised Carolyn’s act of tapping the quarter,

and not Joel’s act of smacking the Carolyn’s hand. A police report was made but no charges

were filed. In an incident in July 2020, Joel was angered by Carolyn spilling milk on a laptop,

and Joel knocked Carolyn down, injuring her lip. Christine did not criticize Joel’s actions. In an

incident in September 2020, Joel threw his iPhone at Carolyn and swore at her after Carolyn

broke the iPhone’s screen. During another incident, Joel threatened to attack Carolyn “worse

than any animal ever has.” Carolyn reported these incidents to a school social worker, leading

Child Protective Services to investigate Joel and Christine for neglect.

Discussion

-Carolyn’s frequent stays with Joel, and the fact that Christine is relying on Joel to watch

Carolyn when Christine is working long shifts, make Joel a person legally responsible under the

Family Court Act.

A “[p]erson legally responsible” includes “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). In evaluating whether a

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particular individual should be considered a person legally responsible, courts examine factors

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

parent(s)’.” (In re Trenasia J., 2015 N.Y. Slip Op. 3765 (N.Y. 2015) at 1004, quoting Matter of

Yolanda D., 88 N.Y.2d 790 (N.Y. 1996) at 796).

Joel described regular contact with Carolyn happening over the course of months. A

person may be held be a person legally responsible based on a child visiting the person six or

seven times, including three or four overnight visits, over the course of one summer. Matter of

Yolanda D., Joel’s contacts with Carolyn are comparably more extensive, occurring more

regularly and over a longer time period. In addition, “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.” Id. at 795.

Considering the nature of the contact, as well as the control Joel exercised over Carolyn’s

environment, Joel’s contact with Carolyn is based on the need to provide Carolyn with care due

to Christine’s occasional lengthy work shifts. Carolyn frequently stays at Joel’s apartment. The

Trenasia J. court found it to be sufficient to satisfy the “nature and extent of control” factor from

the Matter of Yolanda D., supra at 2, that the respondent was the sole adult in a household with a

child and was expected to care for her. Joel is often alone with Carolyn and is expected by

Christine to perform a caretaking role. Likewise, being an uncle by marriage to a child weighs in

favor of seeing a substantial relationship of the respondent to the child’s parents. Trenasia J.

Joel’s relationship is similar to being an uncle by marriage, having been married to a Christine’s

cousin. In summation, Joel’s relationship with Carolyn is “analogous to parenting and occur[s] in

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a household or "family" setting.” Matter of Yolanda D., 88 N.Y.2d at 796. Therefore, Joel will

be considered a person legally responsible.

Joel’s behavior towards Carolyn, in particular throwing his phone at her and pushing her

down during separate events, is plausibly sufficient to create a finding of neglect.

An “[a]bused child” is a child with a legally responsible person who inflicts an injury

which “creates a substantial risk of death, or serious or protracted disfigurement, or protracted

impairment of physical or emotional health or protracted loss or impairment of the function of

any bodily organ.” Family Court Act §1012 (e)(i). For abuse claims predicated on an assertion

that a child’s emotional health has been harmed, actual evidence of an effect is required;

testimony that an act of violence "can certainly have an impact on her emotional health” is

insufficient. People v. Phelps, 268 A.D.2d 692 (3rd Dept 2000) at 695. In addition, evidence that

psychological problems existed prior to a legally responsible person’s allegedly abusive behavior

can serve as rebuttal evidence against a claim that a child’s emotional health was harmed by the

alleged abuse. Id. at 695. A person may use physical force in disciplining a child “to the extent

that he reasonably believes it necessary to maintain discipline or to promote the welfare of such

person.” New York Penal Law §35.10. A neglect finding, however, can be sustained “by

unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including

the infliction of excessive corporal punishment.” Family Court Act §1012 (f)(i)(B). Single

instances of unjustifiable violence towards children can be sufficient to constitute neglect, with

the sole act being striking a child’s face, causing a facial contusion. Matter of Samuel Y., 270

A.D.2d 531 (3rd Dept 2000).

The fact that the most serious injury Joel has caused Carolyn is a bloody lip would

suggest that Joel’s actions were not likely to cause the sort of serious or protracted disfigurement

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required under Family Court Act §1012 (e)(i) for a finding of abuse. However, there is ambiguity

based on the fact that Joel had previously caused an eye injury to a child, with glass entering the

child’s eye, by throwing an object in anger. Joel has thrown objects at Carolyn. An attorney with

Child Protective Services could argue that based upon the prior serious injury Joel caused, his act

of throwing an object at Carolyn creates a “substantial risk” of injury. Id. In opposition, the

defense could argue that the injury to that child was an unlikely outcome based on an attenuated

series of events (accidentally breaking glass, and a bit of that glass entering a child’s eye.) While

Carolyn has a pre-existing diagnosis of ADHD, and Christine indicated that Carolyn has average

grades, neither Joel nor Christine noted any changes in her psychological state or academic

performance. An actual change in Carolyn’s mental wellbeing is needed for a finding of

emotional harm, mere speculation that Joel’s actions could have harmed her emotionally is

insufficient. Phelps, 268 A.D.2d 692. While Samuel Y. held that a single facial contusion from

an act committed by a frustrated parent could be grounds for a negligence finding and removal,

this case is distinguishable from Samuel Y. in that the abused child in Samuel Y. was two years

old, and the court cited his “tender age” as part of the facts supporting the neglect petition. Id. at

532. Carolyn, being fifteen years old, is far less vulnerable. Nonetheless, “[t]he impairment

definition of ‘neglected child’ creates a lower threshold of resultant harm than the ‘serious

physical injury’ required by the definition of ‘abused child’” Matter of Maroney v. Perales, 102

A.D.2d 487 (3rd Dept 1984). In addition, the fact that actions were “motivated largely by anger”

can serve as the basis for finding corporal punishment to be excessive. Id. at 488. Joel has

admitted that his actions are motivated by anger, and Joel has an admitted history of having

outbursts when angered. Minor injuries such as abrasions, swelling, cuts, and bruises, can be

sufficient for a finding of neglect. Id. Carolyn has sustained a minor injury (bloody lip) from one

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of Joel’s outbursts. The case law predominately depicts fact patterns more severe, and in some

way distinguishable from Joel’s actions and Carolyn’s injuries. Nonetheless, given the low

threshold for a neglect finding, it is plausible that Joel would be found responsible for neglecting

Carolyn. Christine’s custody of Carolyn is also jeopardized by continuing to allow Joel to

occasionally take custody of Carolyn. A finding of neglect can be sustained not only by a person

legally responsible by “allowing to be inflicted” harm that constitutes neglect, such as Joel’s

plausibly does. Family Court Act §1012 (f)(i)(B). A legally responsible person can be found to

have committed neglect, and a child removed from the person, if the legally responsible adult

fails to protect a child from excessive corporal punishment, even if that legally responsible adult

was not the perpetrator of the excessive corporal punishment. Matter of Evelyn X, 290 A.D.2d

817 (N.Y. App. Div. 2002). A finding of excessive corporal punishment by Joel therefore risks

not only jeopardizing Joel’s ability to care for Carolyn, but also Christine’s custody.