Fourth Department — Child Custody: Matter of Lebraun H.

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Appellate Division, Fourth Department 

Child Custody

Neglect — Sex Abuse Allegations — Evidence of Sexual Abuse

Matter of Lebraun H.
CAF 11-02392
Appealed from Family Court, Erie County

Background: The petitioner Department of Social Services commenced an Article 10 proceeding alleging that the subject child had been neglected by the child’s paternal grandmother, the respondent. At the same time, the maternal grandmother commenced an article 6 proceeding seeking to modify a prior order granting joint custody of the child to her and the respondent. The respondent appealed from an order finding that she neglected the child, that sole custody be placed with the maternal grandmother, and that she be directed to complete sex offender and parenting treatment programs.

Ruling: The Appellate Division held that the petitioner failed to demonstrate that the child’s physical, mental or emotional well-being was impaired as a consequence of the respondent’s failure to exercise a minimum degree of care. The findings were premised on the petitioner’s expert witness testimony that the respondent was dismissive of the child’s allegations of sex abuse by a relative. There was no evidence that the child was in fact sexually abused. However, the Appellate Division found the modification in custody was warranted due to the acrimonious relationship between the parties and that the relationship between the child and the respondent has become strained.

David J. Pajak for the respondent-appellant and petitioner-appellant; Joseph T. Jarzembek for the petitioner-respondent; Timothy J. Hennesy for the petitioner-respondent and respondent-respondent; Ayoka A. Tucker, attorney for the child