| Matter of Ashley X. |
| 2008 NY Slip Op 02922 [50 AD3d 1194] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Ashley X., a Child Alleged to be Neglected.Rensselaer County Department of Social Services, Respondent; Katherine X.,Appellant. |
—[*1] Theresa A. Beaudoin, Rensselaer County Department of Social Services, Troy, forrespondent. Douglas J. Broda, Law Guardian, Troy.
Kane, J. Appeal from an order of the Supreme Court (Stein, J.), entered December 15, 2006in Rensselaer County, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's child to be neglected.
Respondent is the mother of Ashley X. (born in 1998) and another child. While respondenthad custody, the children missed numerous days of school. In 2006, petitioner commenced thisproceeding alleging, among other things, educational neglect of Ashley. That same month,Supreme Court placed the children in the temporary custody of their father. At the hearing on thismatter, petitioner limited its proof to educational neglect of Ashley for the 2005-2006 schoolyear.[FN*] The court found that respondent neglected Ashley and placed respondent [*2]under petitioner's supervision for one year. Respondent appeals.
Supreme Court's finding of educational neglect is not against the weight of the evidence. Toestablish educational neglect, petitioner was required to prove by a preponderance of theevidence that Ashley's "physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired" due to respondent's failure to provide Ashley with anadequate education (Family Ct Act § 1012 [f] [i] [A]; see Family Ct Act §1046 [b] [i]). Neglect may be premised upon proof that a child has a significant rate of unexcusedabsences from school which detrimentally affects the child's education, and that the requisiteeducation was not provided from a source other than the public school (see Matter of Shawndalaya II., 31AD3d 823, 824 [2006], lv denied 7 NY3d 714 [2006]; Matter of Amanda M., 28 AD3d813, 814 [2006]; Matter ofBenjamin K., 28 AD3d 810, 811-812 [2006]).
School attendance records and testimony from school personnel established that Ashley had28 absences—25 of which were unexcused—out of the 82 school days between thebeginning of the school year in September 2005 and the filing of the petition in January 2006.Respondent testified that Ashley only remained home due to illness and they completededucational activities on those days. Nevertheless, because respondent did not have an approvedhome school program, she was not providing Ashley the requisite education from a source otherthan the public school (compare Matterof William AA., 24 AD3d 1125, 1125-1126 [2005], lv denied 6 NY3d 711[2006]). Regarding respondent's contention that the absences were all due to illness, she nevertook Ashley to the doctor during that time period, school personnel were not aware of anymedical condition that would result in an inordinate amount of absences and respondent failed toprovide notes to the school on all but three occasions. Respondent also asserts that Ashley'seducation was not negatively affected by the absences. Testimony of her second-grade teacherand report card comments present a contrary picture, indicating that Ashley was behind in severalsubjects and her learning could improve through regular attendance. Considering this evidence,and deferring to Supreme Court's finding that respondent's credibility was highly suspect, thefinding of neglect had a sound and substantial basis in the record (see Matter of AmandaM., 28 AD3d at 814-815).
Supreme Court did not abuse its discretion in permitting the Law Guardian to presenttestimony from Ashley's first-grade teacher and her report cards from that year. While thepetition only addressed second grade, respondent opened the door to evidence concerning thedetrimental effect of absences when she testified that she engaged in educational activities athome and did not believe that Ashley suffered any adverse affects due to her poor attendance(see Matter of Storch v Storch, 282 AD2d 845, 848 [2001], lv denied 96 NY2d718 [2001]). The court prohibited proof concerning the number of absences in prior years, onlypermitting testimony and report card comments concerning the child's inability to succeed due toher inordinate absences. This evidence was relevant to show notice to respondent that her child'sattendance was likely to affect her performance.
In general, postpetition evidence should not be considered during a fact-finding hearing(see Matter of Jessica YY., 258 AD2d 743, 747 [1999]). Here, the testimony of aday-care licensing representative was elicited for impeachment purposes, not to prove any factualmatters. Respondent was aware, more than a week in advance of its admission into evidence, thatthis proof may be considered, discounting any surprise or prejudice (see Matter of Jewle I., 44 AD3d1105, 1107 [2007]). Accordingly, Supreme Court did not abuse its discretion by consideringthis evidence.
Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The record does not disclose anydisposition for the petition alleging respondent's neglect of her other child. Although petitionerstated at the hearing that it sought a determination of derivative neglect, no such finding isincluded in Supreme Court's order of fact finding and disposition.