In re Brianna R., A Child Under Eighteen Years of Age, etc., and Maribel R., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.
Andrew J. Baer, New York, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Michael J. Pastor of counsel), for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), attorney for the child.
Sweeny, J.P., Acosta, Saxe, Moskowitz, Clark, JJ.
Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about October 15, 2012, which, after a fact-finding hearing, found that respondent mother neglected the subject child by failing to provide for her educational needs and by failing to provide her with adequate guardianship, reversed, on the law and the facts, without costs, the finding of neglect vacated, and the petition dismissed. Appeal from order of disposition, same court and Judge, entered on or about November 9, 2012, which released the subject child to respondent mother with petitioner agency's supervision for up to six months, dismissed, without costs, as academic.
Petitioner Administration for Children's Services (ACS) failed to establish by a preponderance of the evidence that the 15-year-old child was educationally neglected (Family Ct Act §§ 1012[f], 1046[b]). Although the child had an excessive amount of absences from school, such absences "do not, ipso facto, establish either the parental misconduct or the harm or potential harm to the child necessary to a finding of [educational] neglect under Family Ct Act 1012(f)(i)(A)" (Matter of Giancarlo P., 306 A.D.2d 28, 28 [1st Dept 2003]). Here, the record shows that the mother faced obstacles in getting the child to attend school on a regular basis. The mother took the child to school for a period of time, but she was financially unable to escort the child to school on an ongoing basis . Moreover, even when the child was present, she had a history of truancy, tardiness, leaving school early and loitering in the hallways.
The record further demonstrates that the child was defiant, violent, and had a history of lying and threatening to harm herself when the mother did not allow her to do what she wanted. The child also suffered from mood disorder, and had continuous hallucinations that made sleep difficult. The child was eventually hospitalized, and was given a number of psychiatric diagnoses. As a result, she was prescribed medication that caused her to be drowsy and disoriented, which further exacerbated her unwillingness and inability to attend school.
Under the circumstances, the mother was unable to control the child and, despite her best efforts, struggled to get the child to attend school regularly, as well as to her therapy and drug treatment appointments (see Matter of Shanae F., 61 A.D.3d 403 [1st Dept 2009]; Matter of Alexander D., 45 A.D.3d 264 [1st Dept 2007]; see also Education Law § 3212 [requiring every parent to send his or her school-age child to school, while specifically exempting from compliance any parent whose child is beyond his or her ability to control]). Here, as we found in Matter of Giancarlo P. and Matter of Shanae F., we find that the mother exercised the minimum degree of care that Section 1012(f)(i) of the Family Court Act requires. Indeed, despite the many obstacles the mother faced, she took steps to ensure that the child attended school. For example, the mother explored the possibility of transferring the child to a school closer to her home in the Bronx and spoke with school personnel over the phone many times about the child's attendance. Thus, the record shows that any impairment the child suffered was as a result of her various psychiatric and behavioral issues, rather than the mother's failure to compel her to attend school.
Significantly, neither the dissent nor ACS acknowledges that ACS itself could not control the child when she was in its custody. Indeed, from November 18, 2011 to February 14, 2012, it is undisputed that while the child was in ACS' custody, she absconded and failed to attend school. Similarly, the child's school had difficulty maintaining control of her. As noted above, the child frequently left school early even when she did attend. Thus, the evidence shows that not only was the child beyond the control of the mother, but was also beyond the control of ACS and the school.
The cases upon which the dissent relies are factually distinguishable. Contrary to ACS' and the dissent's characterizations, we based our neglect findings in those cases on more than school absences alone. For example, in Matter of Kaila A. (Reginald A.-Lovely A.) (95 A.D.3d 421 [1st Dept 2012]), this Court held that, in addition to the school absences, the "respondent had neglected the child by committing acts of domestic violence against the child's mother in the child's presence." Similarly, in Matter of Aliyah B. (Denise J.) (87 A.D.3d 943, 943 [1st Dept 2011]), this Court held that, the "mother neglected her children by committing acts of domestic violence against the children's father in the children's presence."
Regarding that part of the court's finding of neglect based upon a 15th birthday party that the mother hosted for the child, at which the police discovered empty beer containers, there was no evidence that the child had consumed alcohol that night. To the contrary, the child denied consuming alcohol because she was taking her medication. Thus, any finding of neglect based upon that incident is speculative. To be sure, although the mother exercised poor judgment when she decided to host the party, the record contains no evidence that the child's physical, mental or emotional condition was impaired or was in imminent danger of becoming impaired as a result of this one isolated incident (see Matter of Pria J.L. [Sharon L.], 102 A.D.3d 576 [1st Dept 2013]).
In view of the foregoing, the appeal from the order of disposition has been rendered academic (see Matter of Shaun B., 55 A.D.3d 301, 302 [1st Dept 2008], lv denied 11 N.Y.3d 715 ).
All concur except Sweeny, J.P., and Saxe, J. who dissent in a memorandum by ...