| Matter of Ricky S. (Lyndell S.) |
| 2016 NY Slip Op 03889 [139 AD3d 959] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Ricky S. Administration for Children'sServices, Petitioner; Lyndell S., Sr., et al., Respondents. (Proceeding No. 1.) In theMatter of Lynisha S. Administration for Children's Services, Petitioner; Lyndell S., Sr., etal., Respondents. (Proceeding No. 2.) In the Matter of Lean S., Appellant. Administrationfor Children's Services, Respondent; Lyndell S., Sr., Respondent, et al., Respondents.(Proceeding No. 3.) In the Matter of Pasquale S. Administration for Children's Services,Petitioner; Lyndell S., Sr., et al., Respondents. (Proceeding No. 4.) In the Matter ofLinasiha S. Administration for Children's Services, Petitioner; Lyndell S., Sr., et al.,Respondents. (Proceeding No. 5.) In the Matter of Lyndell S., Jr. Administration forChildren's Services, Petitioner; Lyndell S., Sr., et al., Respondents. (Proceeding No.6.) |
Mark Brandys, New York, NY, attorney for the child, the appellant Lean S.
Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and MelanieT. West of counsel), for petitioner-respondent.
Jessica Marcus, Brooklyn, NY, for respondent-respondent.
Appeal from an order of fact-finding of the Family Court, Kings County (Robert D.Mulroy, J.), dated March 13, 2015. The order, insofar as appealed from, upon a decisionof that court dated March 12, 2015, made after a fact-finding hearing, found that thefather derivatively neglected the child Lean S.
[*2] Ordered that the order is reversed insofar as appealedfrom, on the law and the facts and in the exercise of discretion, without costs ordisbursements, and the petition on behalf of Lean S. is dismissed insofar as assertedagainst the father.
The Commissioner of Administration for Children's Services (hereinafter ACS)commenced six related child protective proceedings pursuant to Family Court Act article10. ACS alleged, inter alia, that the mother Tunisha S. and the father Lyndell S., Sr.,educationally neglected Lynisha, the then 15-year-old sister of the subject child Lean S.,and neglected her siblings.
At the fact-finding hearing with respect to the father, ACS presented evidence thatLynisha was absent from school 39 days and present 35 days from the beginning of theschool year in September 2012 through January 15, 2013. The father spoke with theschool guidance counselor on December 13, 2012. He met with the school guidancecounselor and Lynisha on December 14, 2012, to discuss Lynisha's absences and wasinformed that "keeping child home in the [future] will result in an ACS referral."Lynisha's attendance records indicate that she was absent from school every day betweenDecember 13, 2012, and January 15, 2013, and that all of her absences wereunexcused.
In November 2012, Lynisha told school authorities that she was absent because ofthe hurricane. Thereafter, she told a caseworker that most of the recorded absences wererecorded in error because her identification card was bent and she was unable to swipe itthrough the school's scanning machine.
At the fact-finding hearing, the father began to testify on direct examination, but thehearing was adjourned before his testimony was complete. Thereafter, the father'scounsel withdrew his testimony and moved to dismiss the petition against him for failureof proof.
There was no evidence showing that any of the other school-aged children missedschool. Thereafter, it was argued that, even assuming that Lynisha missed school, therewas no evidence that this resulted from the father's failure to exercise a minimum degreeof care and, in any event, Lean S., was not of school age.
The Family Court drew a negative inference based on the father's failure to offertestimony and, in an order of fact-finding dated March 13, 2015, found that the fathereducationally neglected Lynisha and derivatively neglected her siblings. Lean S. appealsfrom so much of the order as found that the father derivatively neglected her.
" 'In a child protective proceeding pursuant to Family Court Act article 10, afinding that a child is abused or neglected must be supported by a preponderance of theevidence' " (Matter ofRichard S. [Lacey P.], 130 AD3d 630, 633 [2015], quoting Matter of Harmony M.E. [AndreC.], 121 AD3d 677, 679 [2014]). Here, the parties do not challenge the findingthat the father educationally neglected Lynisha.
Under Family Court Act § 1046 (a) (i), "proof of the abuse or neglect ofone child shall be admissible evidence on the issue of the abuse or neglect of any otherchild of, or the legal responsibility of, the respondent" (see Matter of Angel F., 60AD3d 1055, 1056 [2009]). A finding of derivative neglect is warranted where theabuse or neglect of one child demonstrates "such an impaired level of parental judgmentas to create a substantial risk of harm for other children in the [parent's] care" (Matter of David H. [OctaviaP.], 127 AD3d 1084, 1086 [2015]), even in the absence of direct evidence thatthe subject child was abused or neglected (see Matter of Jelani B., 54 AD3d 1032 [2008]; Matterof Dareth O., 304 AD2d 667, 668 [2003]). Educational neglect of a school-age childmay warrant a finding of derivative neglect with respect to a child younger than schoolage, under the circumstances of the particular case (see Matter of Danny R., 60 AD3d 450, 450 [2009]).
However, under the circumstances of this case, the truancy of one teenaged child,who resisted going to school, did not establish derivative neglect of Lean S., who wasnot even of school age (seeMatter of Benjamin VV. [Larry VV.], 92 AD3d 1107 [2012]; cf. Matter ofChad V., 265 AD2d 607 [1999]).
The appellant's remaining contention need not be addressed in light of ourdetermination. Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ., concur.