| Matter of Santino B. (Lisette C.) |
| 2012 NY Slip Op 02352 [93 AD3d 1086] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Santino B. and Another, Children Alleged to beNeglected. Ulster County Department of Social Services, Respondent; Lisette C., Appellant.(Proceeding No. 1.) In the Matter of Santino B. and Another, Children Alleged to be Neglected.Ulster County Department of Social Services, Respondent; John B., Appellant. (Proceeding No.2.) |
—[*1] Andrew Kossover, Public Defender, Kingston (MariAnn Connolly Sennett of counsel), forJohn B., appellant. Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. [*2]Ivy Schildkraut, Monticello, attorney for thechildren.
McCarthy, J. Appeals (1) from an order of the Family Court of Ulster County (McGinty, J.),entered July 23, 2010, which, in two proceedings pursuant to Family Ct Act article 10, grantedpetitioner's motion to vacate a prior order of preclusion, and (2) from three orders of said court,entered October 12, 2010 and December 20, 2010, which granted petitioner's applications, in twoproceedings pursuant to Family Ct Act article 10, to adjudicate respondents' children to beneglected.
Respondents are the parents of Santino B. (born in 1996) and Giavanni B. (born in 1998).Petitioner commenced this proceeding alleging educational neglect due to the children'sexcessive absences from school between September 2009 and April 2010. Family Court foundthat both respondents were responsible for educational neglect and placed them under petitioner'ssupervision for one year. Respondents appeal from the fact-finding and dispositional orders, andrespondent Lisette C. also appeals from a July 2010 order vacating a prior preclusion order.
Lisette C.'s appeal from the July 2010 order was untimely, as she did not file a notice ofappeal until November 2010 (see Family Ct Act § 1113). In any event, argumentsrelated to that earlier order may be raised on the appeals from the dispositional orders(see CPLR 5501 [a] [1]).
Giving deference to Family Court's credibility determinations, the evidence supports findingsof educational neglect by respondents against both children (see Matter of Regina HH. [Lenore HH.], 79 AD3d 1205, 1206[2010]). To establish educational neglect, petitioner was required to prove by a preponderance ofthe evidence that the children's "physical, mental or emotional condition has been impaired or[was] in imminent danger of becoming impaired" due to respondents' failure to provide themwith an adequate education (Family Ct Act § 1012 [f] [i] [A]; see Matter of Ashley X., 50 AD3d1194, 1195 [2008]). Such neglect may be established by proof of a "significant rate ofunexcused absences from school which detrimentally affects the child[ren]'s education"(Matter of Ashley X., 50 AD3d at 1195; accord Matter of Jalesa P. [Georgia P.], 75 AD3d 730, 732 [2010];see Matter of Benjamin K., 28AD3d 810, 811 [2006]). Courts may draw an inference of impairment to a child's educationwhere the child misses an extreme amount of schooling over an extended period of time and theparents fail to take appropriate action (see Matter of Regina HH. [Lenore HH.], 79 AD3dat 1205; Matter of Benjamin K., 28 AD3d at 812).
Here, Giavanni's school records show that between September 2009 and April 2010, he wasabsent 37 times, including 15 unexcused absences, 20 excused absences and one unlabeledabsence. During that same period, he was tardy 72 times, only one of which was excused. Histeacher testified that Giavanni was not in attendance most of the time. She attributed his lowgrades, which were mostly Fs, to his lack of attendance. Respondents refused to permit theschool's committee on special education to test Giavanni for learning disabilities so that he couldreceive appropriate services, despite indications that he could benefit from such services. Theteacher testified that she repeatedly attempted to address Giavanni's problems with respondents,but they generally failed to respond at all and they cancelled the few appointments that were[*3]arranged (see Matter of Benjamin K., 28 AD3d at812).
A guidance counselor testified that Santino was absent more than 30 days and late more than30 additional days.[FN*]During 10 other days that he was suspended due to misbehavior, respondents did not contact theschool to pick up his course work or arrange for a tutor, despite the school having offered thoseoptions. Santino was repeating seventh grade because he failed at least four subjects the previousyear and respondents did not enroll him in summer school. In his second year in that grade, hefailed six subjects and was required to attend summer school to be promoted. Respondents alsorefused to have Santino tested by the committee on special education.
Although the children's grandfather passed away during the school year, the bereavementperiod only accounted for a few absences. Respondents took the children to a psychologist, butthey did not make this professional aware of the children's rate of absenteeism, which preventedhim from properly addressing that problem. Both children were promoted to the next grade whilethe petition was pending, but Giavanni exerted more effort at the end of the school year,following Family Court's temporary order of protection that required respondents to ensure hisattendance and to permit him to be tested. Santino was only promoted because he attendedsummer school—where he apparently did well—but such attendance was alsomandated by court order. The record lacks evidence that respondents made any voluntary effortsto address their children's absenteeism and the related effects on their education. Thus, petitionerproved by a preponderance of the evidence that respondents were responsible for the educationalneglect of both children (see Matter of Regina HH. [Lenore HH.], 79 AD3d at1205-1206).
Mercure, A.P.J., Lahtinen, Spain and Stein, JJ., concur. Ordered that the appeal from theorder entered July 23, 2010 is dismissed, without costs. Ordered that the orders entered October12, 2010 and December 20, 2010 are affirmed, without costs.
Footnote *: Although the parties disputewhether Family Court properly admitted Santino's educational records, we need not address thatissue. As the court stated that it would have reached the same result even without considering theschool records, we can review its decision based on all of the evidence except Santino's schoolrecords.