Opinion
No. 2023-50942 Docket No. O-xxxx-23
08-28-2023
V.M., Petitioner, v. C.M., Respondent. v. v. M., Petitioner, v. N.B., Respondent. V.M., Petitioner. v. G.B., aka G.B., Respondent.
Petitioner mother is represented by Marjorie G. Adler, Esq., Petitioner children are represented by Thomas Persichilli, Esq. Respondent father is represented by Carol M. North, Esq. Respondent girlfriend is represented by Lawrence M. Schaffer, Esq. Respondent child is represented by Gail M. Berkowitz, Esq.
Unpublished Opinion
Petitioner mother is represented by Marjorie G. Adler, Esq.,
Petitioner children are represented by Thomas Persichilli, Esq.
Respondent father is represented by Carol M. North, Esq.
Respondent girlfriend is represented by Lawrence M. Schaffer, Esq.
Respondent child is represented by Gail M. Berkowitz, Esq.
Ellen R. Greenberg, J.
Before the Court are three family offense proceedings filed by petitioner V. M. on behalf of her two minor children, L. M., born xx/xx/2017, and H. M., born xx/xx/2011. V. M. filed petitions against C. M., the children's father, N. B., the father's girlfriend, and G. B., the 8-year-old child of N. B.
The petitions allege that the child G.B. engaged in inappropriate sexual behavior against the child L.M. and that C. M. and N. B. are responsible, in that they failed to supervise and/or control the actions of the child G. B.
C. M. moves to dismiss the family offense petition against him for failure to state a cause of action. He also argues that this petition must be dismissed as a matrimonial action is pending between him and the petitioner, thereby precluding a family offense proceeding from being heard separately from the matrimonial action.
N. B. moves to dismiss the family offense petition against her, claiming lack of subject matter jurisdiction and failure to state a cause of action.
The child G. B. moves to dismiss the family offense petition against him based on lack of subject matter jurisdiction, facial insufficiency on the ground that the petition is based solely on hearsay allegations, and failure to allege a family offense due to G. B. being only 8 years old.
Firstly, C. M. argues that this court cannot entertain this family offense proceeding because a matrimonial action is pending.
Certainly, a custody proceeding cannot be entertained in Family Court while a matrimonial proceeding is pending but the same does not necessarily hold true regarding a family offense proceeding without a showing that the two are intrinsically intertwined. Matter of Olga P.v Ioannis Y., 182 A.D.3d 447 (1st Dept 2020). Here, the allegations in this family offense proceeding are unrelated to the matrimonial proceeding. Therefore, this argument is without merit.
The respondents C. M. and N. B. both argue that a dismissal of the petition is warranted for failure to state a cause of action. The petitions against them specifically allege that respondents' behavior toward petitioners constitutes reckless endangerment.
Petitioner must prove by a preponderance of evidence that respondents committed a family offense as set forth in FCA § 812. Here, the petitions in question both allege that the respective respondents committed the family offense of reckless endangerment. As provided in Penal Law § 120.20, a person commits reckless endangerment "when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." Serious physical injury is defined in Penal Law § 10.00(10) as "physical injury which creates a substantial risk of death, or which cause death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of a bodily organ."
The allegations in the respective petitions are insufficient to establish the elements of reckless endangerment as defined in the Penal Law. Moreover, after a full review of the allegations in the respective petitions and a reading of FCA § 812, this Court does not find that the allegations are sufficient to establish any of the other family offenses outlined in the statute, even when giving the benefit of every reasonable inference to the petitioner. Matter of Opray v Fitzharris, 84 A.D.3d 1092 (2nd Dept 2011). Accordingly, the petitions against C. M. and N. B. must be dismissed.
With regard to the petition against the child G.B., the respondent argues that a dismissal is warranted due to lack of subject matter jurisdiction arguing that there is no familial relationship between G. B. and the petitioner on behalf of her children. The Court looks to § 812 of the Family Court Act, which provides:
The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, unlawful dissemination or publication of an intimate image, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree, coercion in the second degree or coercion in the third degree as set forth in the subdivisions one, two and three section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. For purposes of this article, "members of the same family or household" shall mean the following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another regardless of whether they still reside in the same household;
(d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".
Family Court Act § 812 clearly states that jurisdiction exists between members of the same family or household or parties who are involved in an "intimate relationship." It goes further in listing factors that the court may consider when determining whether an "intimate relationship" exists between the parties.
A number of cases have addressed the issue as to the relationship between parties and whether said relationship satisfies the criteria for subject matter jurisdiction necessary to hear a family offense petition in Family Court. In Matter of Seye v Lamar (72 A.D.3d 975 [2nd Dept 2010]), the sister of a boyfriend did not qualify as an intimate relationship with the petitioner. In Jose M. v. Angel V. (99 A.D.3d 243 [2012]), the Second Department held that a stepparent- stepchild relationship was sufficient to satisfy the meaning of "intimate relationship." In Eno v Illovsky (214 A.D.3d 865 [2nd Dept 2023]), former sisters-in-law qualified as "intimate relationship" based on the specific facts.
While it may be possible to determine whether an "intimate relationship" exists without a hearing, some cases may require a hearing in order to make that determination. Matter of Jose M. v Angel V., 99 A.D.3d 243. In the instant matter, a hearing is warranted to determine the nature of the relationship between the parties.
G. B.'s challenge to the facial insufficiency of the petition against him on the ground that the petition is based entirely on hearsay allegations is also without merit. Respondent relies on § 311 of the Family Court Act, which speaks to juvenile delinquency petitions, not family offense petitions, which are governed by article 8 of the Family Court Act. While only competent, material, and relevant testimony may be admitted at the fact-finding hearing (Family Court Act § 834), there is no requirement in article 8 that a family offense petition contain non-hearsay statements.
A parent may certainly file a family offense petition on behalf of a child. In O'Connor v O'Connor (202 A.D.3d 689 [2nd Dept 2022]), petitioner filed a family offense petition on behalf of herself and minor child. The Family Court dismissed the petition determining that "the petitioner would be unable to prove her allegations because the child's out-of-court statements were inadmissible." The Second Department reinstated the petition and remitted for a hearing on the petition, acknowledging that competent testimony could be presented by having the child testify at the fact-finding hearing.
G. B. additionally moves for a dismissal of the petition based on the fact that he is only 8 years old. He argues that due to a recent change in the law, an eight-year-old can no longer be prosecuted as a juvenile delinquent and therefore cannot be the subject of a family offense proceeding.
While a juvenile delinquency proceeding is a quasi-criminal proceeding, a family offense is a civil proceeding. Family Court Act § 812(2)(b). The fact that criminal responsibility cannot be sustained against an 8-year-old has no bearing on a family offense proceeding in Family Court, which has exclusive jurisdiction where the respondent would not be criminally responsible by reason of age. Family Court Act § 812(1); Criminal Procedure Law § 530.11(1). Article 8 of the Family Court Act does not dictate a minimum age for a respondent in a family offense proceeding.
Based on the foregoing, it is hereby
ORDERED that Motion #1 to dismiss the petition in docket number O-xxxx-23 is granted, the petition is dismissed, and the temporary order of protection dated March 10, 2023, is vacated; and it is further, ORDERED that Motion #1 to dismiss the petition in docket number O-xxxx-23 is granted, the petition is dismissed, and the temporary order of protection dated March 1, 2023, is vacated; and it is further, ORDERED that the Motion #1 to dismiss the petition in docket number O-xxxx-23 is denied. The parties and counsel shall appear before the undersigned for a hearing on the petition at 10:00 a.m. on October 4, 2023.
This constitutes the Decision and Order of the Court.