| Matter of Regina HH. (Lenore HH.) |
| 2010 NY Slip Op 08828 [79 AD3d 1205] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Regina HH., a Child Alleged to be Neglected. SullivanCounty Department of Family Services, Respondent; Lenore HH.,Appellant. |
—[*1] Michael C. Ross, Sullivan County Department of Social Services, Monticello, for respondent. Bernard Clyne, Woodbourne, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.),entered November 24, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to adjudicate respondent's child to be neglected.
Petitioner commenced this proceeding alleging that respondent neglected her daughter (born in1995) by, among other things, failing to ensure that she attended school on a regular basis. Following ahearing, Family Court found that respondent had neglected the child and placed her in petitioner'scustody. Respondent appeals.
Petitioner proved that the child was neglected due to respondent's failure to exercise a minimumdegree of care in providing appropriate supervision and guardianship. To establish educational neglect,petitioner offered proof of a "significant, unexcused absentee rate that has a detrimental effect on thechild's education" (Matter of Ember R., 285 AD2d 757, 758 [2001], lv denied 97NY2d 604 [2001]). Where the number of absences is extreme and the absenteeism [*2]continues for an extended time without appropriate action by the parent,the court may draw an inference of impairment (see Matter of Benjamin K., 28 AD3d 810, 812 [2006]). From thebeginning of the school year until the child was temporarily removed from respondent's home, theschool was open 88 days. According to school attendance records, during that time period the childhad five unexcused late arrivals and 50 absences, only 10 of which were excused. Respondent offeredsome proof that the absences were related to the child's medical condition and her medication, whichmade it difficult for the child to wake up in the morning or to attend school. No written excuses weresubmitted to the school to support these 40 alleged medically-excused absences. Other proof showedthat the child's anxiety attacks, which were part of the medical reason she could not attend school somedays, were only witnessed by respondent and were not independently verified. The child had alsoreported to some witnesses that she stayed home to take care of her mother or because she did notwant to leave her mother.
As for the impact of the child's absences from school, one witness testified that the child was failingall of her classes. Respondent testified that she had spoken with school officials, who informed her thatthe child would need to attend every school day for the rest of the year, as well as attend summerschool, in order to be promoted to the next grade. A case manager testified that she encouraged thechild to attend school and arranged for respondent to call whenever the child refused to get up, butrespondent did not cooperate with these offers for assistance. In her testimony, respondent minimizedthe problem and effects of the child's absences from school. Giving deference to Family Court'scredibility determinations and factual findings, which have a sound and substantial basis in the record(see Matter of Justin J., 25 AD3d1031, 1033 [2006]; Matter of KristaL., 20 AD3d 783, 784 [2005]), petitioner established educational neglect (see Matter ofEmber R., 285 AD2d at 758-759).
The evidence also showed other types of neglect. Due to respondent's mental health condition, shewas paranoid, mistrustful and refused to accept help. She rarely allowed the child to socialize and didnot follow through on a caseworker's referral to engage the child in a program that would provide peerinteraction. Several witnesses testified regarding the unusual enmeshment between respondent and thechild, creating separation issues between respondent and her teenage child to the point where each ofthem was viewed as needing therapy to deal with being apart. Respondent did not have cooking gas inthe apartment for more than a month. At one point, the light bulbs in almost every room of theapartment were out. The apartment did not have hot water for a month and the child was unable to takea shower during that time period. Considering all of the evidence, petitioner proved that the child wasneglected and that respondent was responsible for that neglect.
Rose, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.