Opinion
2017–01741 2017–01744 Docket No. N–5239–15
01-10-2018
In the MATTER OF MCKAIN W. (Anonymous). Administration for Children's Services, respondent; v. Coreen M. (Anonymous), appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Susan Paulson of counsel), for respondent. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Sara H. Reisberg of counsel), attorney for the child.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Susan Paulson of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Sara H. Reisberg of counsel), attorney for the child.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERAppeals from (1) an order of fact-finding of the Family Court, Queens County (Mary R. O'Donoghue, J.), dated August 24, 2016, and (2) an order of disposition of that court (Diane Costanzo, J.), dated January 24, 2017. The order of fact-finding, after a fact-finding hearing, found that the mother neglected the subject child. The order of disposition, after a dispositional hearing, returned the child to the custody of the mother with supervision by the Administration for Children's Services for 12 months.
ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the order of disposition is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that the mother neglected her child by failing to provide her with adequate education as demonstrated by the child's excessive absences from school. After a fact-finding hearing, the Family Court found that the mother had neglected the child.
At a fact-finding hearing in an abuse or neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the child has been abused or neglected (see Family Ct Act § 1046[b][i] ; Matter of Tammie Z., 66 N.Y.2d 1, 3, 494 N.Y.S.2d 686, 484 N.E.2d 1038 ; Matter of Mariah C. [Frey C.-M.], 84 A.D.3d 1372, 923 N.Y.S.2d 892 ; Matter of Isaac J. [Joyce J.], 75 A.D.3d 506, 506–507, 904 N.Y.S.2d 755 ). Here, contrary to the mother's contention, the Family Court's determination that she neglected the child by failing to provide her with an adequate education was supported by a preponderance of the evidence. The petitioner met its prima facie burden of establishing educational neglect by submitting unrebutted evidence of excessive school absences combined with the child's failing grades (see Matter of Joyitha M. [Reshmi M.], 121 A.D.3d 900, 901, 994 N.Y.S.2d 393 ; Matter of Eric C. [Barbara C.], 79 A.D.3d 1037, 912 N.Y.S.2d 892 ; Matter of John N., 19 A.D.3d 497, 498, 798 N.Y.S.2d 464 ; Matter of Fatima A., 276 A.D.2d 791, 715 N.Y.S.2d 250 ). The mother failed to offer a reasonable justification for the absences and did not actively engage with the school or the child's teacher in planning alternative means for the child's education (see Matter of Joyitha M. [Reshmi M.], 121 A.D.3d at 901, 994 N.Y.S.2d 393 ; Matter of Alexander D., 45 A.D.3d 264, 845 N.Y.S.2d 244 ; Matter of Amanda K., 13 A.D.3d 193, 194, 786 N.Y.S.2d 171 ).
BALKIN, J.P., LEVENTHAL, HINDS–RADIX and MALTESE, JJ., concur.