Opinion
238 CAF 17-02042
03-17-2019
In the MATTER OF JAIME D. and Jacob D. Oswego County Department of Social Services, Petitioner–Respondent; v. James N., Respondent-Appellant, and Jacquelina D., Respondent. (Appeal No. 2.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER–RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it concerns the disposition is unanimously dismissed and the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from an order entered after a fact-finding hearing that, inter alia, found his two children to be neglected based on respondents' failure to supply them with an adequate education (see Family Ct Act § 1012[f][i][A] ). In appeal No. 2, the father appeals from an order of fact-finding and disposition that adjudged the children to be neglected and, among other things, ordered a suspended judgment.
The father's appeal from the order in appeal No. 1 must be dismissed inasmuch as the appeal from the fact-finding and dispositional order in appeal No. 2 brings up for review the propriety of the fact-finding order in appeal No. 1 (see Matter of Lisa E. [Appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ). Further, the father's appeal from the order in appeal No. 2 insofar as it concerns the disposition must be dismissed as moot because that part of the order has expired by its terms (see Matter of Gabriella G. [Jeannine G.], 104 A.D.3d 1136, 1136, 962 N.Y.S.2d 537 [4th Dept. 2013] ). The father "may nevertheless challenge the underlying neglect adjudication because it constitutes a permanent stigma to a parent and it may, in future proceedings, affect a parent's status" ( id. [internal quotation marks omitted]; see Matter of Matthew B., 24 A.D.3d 1183, 1183, 808 N.Y.S.2d 513 [4th Dept. 2005] ). Contrary to the father's contention, we conclude that petitioner met its burden of establishing educational neglect by a preponderance of the evidence by demonstrating that each child had a significant unexcused absentee and tardiness rate that had a detrimental effect on his education (see Gabriella G., 104 AD3d at 1137, 962 N.Y.S.2d 537 ; Matter of Cunntrel A. [Jermaine D.A.], 70 A.D.3d 1308, 1308, 894 N.Y.S.2d 800 [4th Dept. 2010], lv dismissed 14 N.Y.3d 866, 903 N.Y.S.2d 325, 929 N.E.2d 388 [2010] ; see generally Matter of Airionna C. [Shernell E.], 118 A.D.3d 1430, 1431, 988 N.Y.S.2d 370 [4th Dept. 2014], lv. denied 24 N.Y.3d 905, 995 N.Y.S.2d 714, 20 N.E.3d 660 [2014], lv dismissed 24 N.Y.3d 951, 994 N.Y.S.2d 50, 18 N.E.3d 752 [2014] ). We reject the father's contention that his proffered explanations established a reasonable justification for the significant absences and tardiness (see Cunntrel A., 70 A.D.3d at 1308, 894 N.Y.S.2d 800 ).
Finally, we conclude that the father has "failed to demonstrate that [he] was afforded less than meaningful representation by counsel" ( Matthew B., 24 A.D.3d at 1183, 808 N.Y.S.2d 513 [internal quotation marks omitted] ). Although the father was at first unable to meet with his attorney on the morning of the fact-finding hearing, Family Court thereafter provided the father and counsel time to discuss the father's concerns prior to the beginning of the hearing.