| Matter of Shannen AA. (Melissa BB.) |
| 2011 NY Slip Op 00117 [80 AD3d 906] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of Shannen AA. and Another, Children Alleged to beNeglected. Ulster County Department of Social Services, Respondent; Melissa BB., Appellant.(And Another Related Proceeding.) |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Alexander Bloomstein, Hillsdale, Attorney for the Child.
Malone Jr., J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered August 25, 2009, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate respondent's children to be neglected.
Petitioner commenced the first of these two proceedings in January 2007, alleging thatrespondent had neglected one of her daughters, Shannen AA. (born in 1993), by, among otherthings, sending the child to live with the child's paternal uncle and aunt, who respondent hadnever met and in whose care the child was raped. The matter was twice adjourned incontemplation of dismissal (hereinafter ACD). In July 2008, petitioner again moved to restore thematter to the calendar, alleging that respondent had again violated the terms of the ACD order,and commenced the second of these neglect proceedings. In the second petition, petitioner [*2]alleged that respondent neglected Shannen—who was thenpregnant—by, among other things, failing to ensure that she received an adequateeducation. Petitioner also alleged that respondent's other daughter, Nicole H. (born in 2001), wasderivatively neglected.
In March 2009, following a hearing, Family Court determined that respondent had violatedthe ACD order and restored the initial neglect petition to the calendar. It further found thatpetitioner had proven the neglect and derivative neglect alleged in the second neglect petition. Asa result, the court scheduled a combined fact-finding and dispositional hearing to finally resolveboth petitions. Following that hearing, by order entered August 25, 2009, the court determinedthat petitioner had also proven the neglect alleged in the second petition and ordered, amongother things, that the children remain in petitioner's custody. Respondent now appeals.[FN*]
With respect to the first petition, a preponderance of the evidence supports Family Court'sfinding of neglect. The record reflects that respondent had difficulty controlling Shannen'sbehavior and, in January 2007, decided to send the child to live with the aunt and uncle;respondent did not first visit the aunt and uncle's home or investigate the conditions in whichShannen would be living. Shannen testified that she lived with her aunt and uncle forapproximately one week before the aunt took her and the aunt's three children to a motel room,apparently because the aunt did not feel safe living with the uncle. Respondent had not given theaunt permission to relocate with Shannen and, in fact, did not know that the aunt had taken heruntil several days later. However, respondent did not attempt to find Shannen or call the police.Instead, respondent believed that it was the child's responsibility to call and tell her where theaunt had taken her. After Shannen was located, respondent allowed her to remain at the motel forfive weeks, even after discovering that Shannen's father—who respondent knew to be aregistered sex offender—was also residing there and had contact with the child. Moreover,respondent knew that Shannen was not attending school while at the motel, but did not think itwas her responsibility to remedy the situation. Finally, after Shannen returned home, she revealedto respondent that she had been raped and, yet, respondent waited several days before obtainingmedical care for her. In fact, respondent obtained care only after being instructed to do so by thepolice. The foregoing is sufficient to sustain the finding of neglect with respect to the firstpetition in that respondent " 'knew or should have known of circumstances which required actionin order to avoid actual or potential impairment of the child' and failed to act accordingly" (Matter of Mary MM., 38 AD3d956, 957 [2007], quoting Matter ofAlaina E., 33 AD3d 1084, 1086 [2006]; see Family Ct Act § 1046 [b] [i];Nicholson v Scoppetta, 3 NY3d357, 368 [2004]; Matter of Joseph DD., 214 AD2d 794, 796-797 [1995]).
A preponderance of the evidence also supports Family Court's finding of neglect with respectto the second petition. The record reveals that respondent failed to ensure that Shannen, then 14years old, attended school or was available to meet with the tutor provided by the school.Although respondent claims that Shannen's absence from school was due to threats allegedlymade against her, the testimony of petitioner's caseworker established that she worked with theschool and respondent to develop and implement a safety plan for the child. Despite the [*3]existence of this plan, respondent continued to permit Shannen tobe absent from school. Respondent subsequently claimed that Shannen was medically unable toattend school, but delayed getting a note from the child's doctor for at least two months. After atutor was arranged, Shannen attended only two sessions due to the fact that respondent permittedher to move out of the school district to live with her boyfriend's family, despite being directedby petitioner to make the child available for schooling. Respondent likewise failed to makeShannen available to take her final exams, which resulted in Shannen receiving failing grades inall of her classes. This proof of Shannen's prolonged absenteeism, which negatively affected hereducation, is sufficient to support the finding of educational neglect (see Matter of Jalesa P. [Georgia P.], 75AD3d 730, 732 [2010]; Matter ofBenjamin K., 28 AD3d 810, 812 [2006]).
In addition, Family Court's findings that respondent failed to provide adequate guardianshipand supervision by permitting Shannen to spend unsupervised overnight visits with herboyfriend, which resulted in her becoming pregnant, and then by permitting Shannen to residewith her boyfriend following the birth of their baby in unsanitary and inappropriate conditions issupported by a preponderance of the evidence. Although respondent contends that any blame forthese situations lies with Shannen for her refusal to return home, it was respondent's duty toprovide her child with a minimum degree of care and supervision, and respondent's failure tointervene caused harm to Shannen (see Family Ct Act § 1012 [f] [i] [B]).
Finally, we are not persuaded by respondent's contention that any deficiencies in respondent'sparenting abilities affect only Shannen and are not sufficient to support a finding of derivativeneglect as to Nicole. A finding of derivative neglect is appropriate where a preponderance of theevidence demonstrates that the parent has " 'such an impaired level of parental judgment as tocreate a substantial risk of harm for any child in [his or her] care' " (Matter of Dylan TT. [Kenneth UU.], 75AD3d 783, 784 [2010], quoting Matter of Daniella HH., 236 AD2d 715, 716 [1997];see Family Ct Act § 1046 [b]). In addition, proof that a respondent neglected onechild is admissible evidence to establish that the respondent also neglected another child(see Family Ct Act § 1046 [a] [i]). While there is no evidence of actual harm toNicole, throughout these proceedings respondent consistently disavowed any responsibility forShannen's actions or the serious consequences thereof, and openly blamed Shannen for Nicole'sremoval from her care. Considering the record as a whole, we agree with Family Court thatrespondent's complete abrogation of her responsibility to provide Shannen with a minimumdegree of supervision and care demonstrates a fundamental misunderstanding of her role as aparent such that any child in her care was at risk of harm.
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: According to respondent's brief,only the findings of neglect are contested on this appeal inasmuch as Shannen entered anindependent living program and Nicole has been returned to her care.