| Matter of Jalesa P. (Georgia P.) |
| 2010 NY Slip Op 05849 [75 AD3d 730] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jalesa P., a Child Alleged to be Neglected. MitchKessler, as Attorney for the Child Appellant; Georgia P., Respondent. Jason Q., NonpartyRespondent. |
—[*1] Laura L. Silva, Schenectady, for Georgia P., respondent. Albert F. Lawrence, Greenfield Center, for Jason Q., nonparty respondent.
Kavanagh, J. Appeal from an order of the Family Court of Schenectady County (Taub,J.H.O.), entered August 31, 2009, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate the subject child to be neglected.
In 2006, respondent (hereinafter the mother), on consent of Jason Q. (hereinafter the father),obtained primary physical custody of their daughter (born in 2000).[FN1]Two years later, in April 2008, [*2]the mother consented to theentry of an order that resulted in the child being placed in the care of Heidi S., the mother ofanother child by the father, from Tuesday through Friday each week.
Seven months later, in November 2008, petitioner, the attorney for the child, receivedpermission from Family Court to file a neglect petition (see Family Ct Act § 1032[b]), in which it was alleged that the mother had inflicted corporal punishment on the child,exposed her to domestic violence, routinely abused drugs and alcohol in the child's presence,neglected the child's personal hygiene and failed to provide her with proper supervision, clothingand appropriate medical care.[FN2]Family Court (Taub, J.H.O.)[FN3]held a Family Ct Act § 1027 hearing and determined that the child's interests did notrequire her to be removed from the mother's care pending a final order of disposition on theneglect petition. Thereafter, the parties agreed that Family Court would rely on the evidencepresented at the section 1027 hearing—as well as educational records submitted bypetitioner in support of the petition—to determine whether the child was neglected whilein the mother's care. Based on that record, Family Court found that the evidence presented wasinsufficient to support such a finding and dismissed the petition. Petitioner now appeals.
In a Family Ct Act article 10 proceeding, the petitioner must establish by a preponderance ofthe evidence (see Family Ct Act § 1046 [b] [i]; Matter of Richard SS., 29 AD3d 1118, 1121 [2005]), "first, that achild's physical, mental or emotional condition has been impaired or is in imminent danger ofbecoming impaired and second, that the actual or threatened harm to the child is a consequenceof the failure of the parent or caretaker to exercise a minimum degree of care" (Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; see Family Ct Act § 1012 [f] [i] [B]; Matter of Anthony Y. [KellyAA.—Paul AA.], 72 AD3d 1419, 1421 [2010]; Matter of Alyssa OO. [Andrew PP.],68 AD3d 1158, 1159 [2009]). Petitioner contends that he met this burden with evidence thatwas presented at the hearing and made part of the record per the parties' stipulation.
Initially, in support of his contention that the mother inappropriately used corporalpunishment while caring for the child, petitioner points to testimony of the father and Heidi S. tothe effect that they observed a bruise on the child's face that they claim the child told themoccurred when the mother struck her. The mother denied striking the child and claimed that thebruise was the result of accidental contact. While a single incident of corporal punishment mayprovide the basis for a finding of neglect (see Family Ct Act § 1012 [f] [i] [B]; Matter of Omavi A. [Jaimyce A.], 68AD3d 1463, 1464-1465 [2009]; Matter of Aaliyah Q., 55 AD3d 969, 970 [2008]), we note thatChild Protective Services investigated this claim and determined that the bruise was the result ofan isolated incident. Given that there was no evidence presented during the hearing that thisincident was the manifestation of persistent [*3]and ongoingactivity on the part of the mother directed at the child, and according due deference to FamilyCourt's assessment of the credibility of the witnesses who testified at the hearing, itsdetermination that the bruise was not the result of the child being subjected to corporalpunishment was supported by a preponderance of the evidence.
More troubling is the fact that the child, while in the mother's care, was often late for schooland had a large number of unexcused absences that obviously played a role in the child having torepeat one year of elementary school.[FN4]In that regard, a finding of neglect "may be premised upon proof that a child has a significantrate of unexcused absences from school which detrimentally affects the child's education, andthat the requisite education was not provided from a source other than the public school" (Matter of Ashley X., 50 AD3d1194, 1195 [2008]; see Family Ct Act § 1012 [f] [i] [A]; Matter of Shawndalaya II., 31 AD3d823, 824 [2006], lv denied 7 NY3d 714 [2006]; Matter of Amanda M., 28 AD3d 813, 814 [2006]; Matter of Benjamin K., 28 AD3d810, 811 [2006]; Matter ofChristopher UU., 24 AD3d 1129, 1131 [2005]). While the child's attendance rate atschool leaves much to be desired, it has noticeably improved, especially since the currentcustody order was implemented and the child spends much of the school week with Heidi S. Shealso is receiving additional help to address her academic needs and, by all accounts, hasperformed well during the most recent school year. Given that the mother has taken a moreactive role and has become more involved in seeing that the child's educational needs are beingmet, Family Court's finding on this issue is supported by the record.
As for the child's hygiene and her medical care, a finding of neglect may be entered where,"though [being] financially able to do so or offered financial or other reasonable means to do so,"a parent fails to provide the child with adequate clothing and basic medical care (Family Ct Act§ 1012 [f] [i] [A]; see Matter of Larenzo SS., 289 AD2d 880, 881-882 [2001]).Here, the child contracted ringworm and head lice, and ultimately was determined to needeyeglasses. However, contrary to the suggestion implicit in the petition, the mother did notignore these issues; the ringworm and head lice were both treated while the child was in themother's care and were resolved. Further, when the mother became aware of the child'sophthalmologic needs, she had the child examined by the school nurse and took her to apediatrician. Moreover, the mother's decision to wait for insurance coverage to purchase thechild's eyeglasses, given her financial circumstances, cannot be said to constitute neglect (seee.g. Matter of David J., 205 AD2d 881, 884 [1994], appeal dismissed 84 NY2d 905[1994]).[FN5]
As for the child's hygiene and lack of suitable clothing, the mother testified that the childbathes every day and is appropriately dressed for the weather. While the father and Heidi S. tookissue with this testimony, the record simply fails to support petitioner's contention that the childwas harmed or her welfare was compromised by the manner in which the mother addressed theseneeds (compare Matter of David II.,49 AD3d 1093, 1094-1095 [2008]).[*4]
Petitioner also alleged that the child, while in themother's care, was routinely exposed to arguments and confrontations that occurred between themother and the father, and later between the mother and her current boyfriend. While the motherand the father have had an acrimonious relationship and assaults emanating from these disputeshave undoubtedly occurred, the mother testified that none has taken place in the child's presence,and no evidence has been presented that the child's physical, mental or emotional state has everbeen threatened or, in fact, impaired as a result of these confrontations with the father or thosethat the mother had with her current boyfriend (see Matter of Alyssa OO. [Andrew PP.],68 AD3d at 1160-1161; compare Matterof Michael WW., 20 AD3d 609, 611-612 [2005]).
Finally, petitioner's claims that the child was endangered by the mother's practice ofallowing her to play outside the home while unsupervised and that the mother abused alcoholand marihuana in the child's presence are not supported by the credible evidence presented at thehearing (compare Matter of PaoloW., 56 AD3d 966, 967 [2008], lv dismissed 12 NY3d 747 [2009]).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father was named in theunderlying petition as a nonparty respondent and appeared in the proceeding before FamilyCourt in support of the petition. While he did not file a notice of appeal and, therefore, cannot beconsidered an appellant, the father has submitted an appellate brief, which supports the positionof petitioner that the mother should be adjudicated to have neglected the child.
Footnote 2: Schenectady CountyDepartment of Social Services refused to initiate such a proceeding.
Footnote 3: The parties consented to thematter being heard by a Judicial Hearing Officer.
Footnote 4: School records establish that inaddition to being chronically late, the child had at least 30 unexcused absences during afour-year period that she attended school.
Footnote 5: Before the mother's Medicaidbecame effective, Heidi S. purchased glasses for the child at the end of November 2008.