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In re Jessica J.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 11, 2008

IN RE JESSICA J., AND ANOTHER, DEPENDENT CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC., AND LILLIE J., RESPONDENT-APPELLANT,
v.
ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.

Order of disposition, Family Court, Bronx County (Carol A. Stokinger, J.), entered on or about February 28, 2007, which, upon a fact-finding determination that respondent mother neglected the subject children, placed the children in the custody of the Commissioner of Social Services pending the completion the next permanency hearing scheduled for August 27, 2007, insofar as it brings up for review the fact-finding determination, unanimously modified, on the law, the finding of derivative neglect with respect to Raeign McN. vacated and, except as so modified, affirmed, without costs, and the matter remanded for further proceedings consistent herewith. The balance of the appeal is dismissed as moot, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Gonzalez, Williams, Moskowitz, Freedman, JJ.

The terms of the dispositional order have been rendered moot by a subsequent order continuing the placement of the children (see Matter of Angelyna G., 46 AD3d 304 [2007]; Matter of D./B. Children, 303 AD2d 229 [2003]). We further observe that respondent's challenge to the order of disposition is unpreserved since she never objected to the order or otherwise contested the placement of the children (see e.g. Matter of Mary Alice V., 222 AD2d 594 [1995], lv denied 87 NY2d 811 [1996]).

The finding that respondent neglected Jessica was supported by a preponderance of the evidence (see Matter of Evan F., 48 AD3d 811 [2008]; Matter of John N., 19 AD3d 497, 498-499 [2005]; Family Court Act § 1012[f][i][A]). The court appropriately took note of the detrimental effect of respondent's threat, made in the children's presence, to kill both them and herself rather than allow them to be taken from her. Respondent's decision to keep Jessica, who has special needs, from attending school for 44 days with no alternative plan for her education was an unreasonable overreaction to an incident in which a school bus driver left the child at the wrong bus stop. The evidence also shows that respondent refused offers of carfare, was unwilling to walk the child to or from the school, which was located six blocks from the family's abode, and failed to make any effort to ensure that Jessica's basic educational needs were met (compare Matter of Alexander D., 45 AD3d 264 [2007]). However, while this Court is concerned that both children receive an adequate education, no evidence was received establishing that respondent's younger daughter, Raeign, had excessive absences from school. In the absence of any indication that Raeign's basic educational needs went unmet, Family Court's implicit finding of derivative neglect lacks record support (cf. Matter of Ember R., 285 Ad2d 757, 759 [2001], lv denied 97 NY2d 604 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081211

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