Opinion
2013-03-15
In the Matter of GABRIELLA G. and Hadassah G. Onondaga County Department of Social Services, Petitioner–Respondent; Jeannine G., Respondent–Appellant.
Kelly M. Corbett, Fayetteville, for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
Kelly M. Corbett, Fayetteville, for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of Counsel), for Petitioner–Respondent.
Susan B. Marris, Attorney for the Children, Manlius, for Hadassah G. and Gabriella G.
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent mother appeals from an order that, inter alia, adjudicated her two children to be neglected based on her failure to supply them with an adequate education ( seeFamily Ct. Act § 1012[f][i] [A] ). As a preliminary matter, we note that the appeal from the order insofar as it concerns the disposition must be dismissed as moot because that part of the order has expired by its terms ( see Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1546, 934 N.Y.S.2d 278,lv. denied18 N.Y.3d 808, 2012 WL 539274;Matter of Thomas C. [Jennifer C.], 81 A.D.3d 1301, 1302, 916 N.Y.S.2d 380,lv. denied16 N.Y.3d 712, 2011 WL 1643298;Matter of Francis S. [Wendy H.], 67 A.D.3d 1442, 1442, 887 N.Y.S.2d 899,lv. denied14 N.Y.3d 702, 898 N.Y.S.2d 97, 925 N.E.2d 102). The mother “ may nevertheless challenge the underlying neglect adjudication because it ‘constitutes a permanent stigma to a parent and it may, in future proceedings, affect a parent's status'” ( Matter of Matthew B., 24 A.D.3d 1183, 1183, 808 N.Y.S.2d 513).
Contrary to the mother's contention, petitioner met its burden of establishing educational neglect by a preponderance of the evidence ( see Matter of Cunntrel A. [Jermaine D.A.], 70 A.D.3d 1308, 1308, 894 N.Y.S.2d 800,lv. dismissed14 N.Y.3d 866, 903 N.Y.S.2d 325, 929 N.E.2d 388). “ ‘Proof that a minor child is not attending a public or parochial school in the district where the parent[ ] reside[s] makes out a prima facie case of educational neglect pursuant to section 3212(2)(d) of the Education Law’ ” ( Matthew B., 24 A.D.3d at 1184, 808 N.Y.S.2d 513). “ ‘Unrebutted evidence of excessive school absences [is] sufficient to establish ... educational neglect’ ” ( id.). Petitioner submitted the children's school records and the testimony of the caseworker, which established “that each child had ‘a significant, unexcused absentee rate that [had] a detrimental effect on [each] child's education’ ” ( Cunntrel A., 70 A.D.3d at 1308, 894 N.Y.S.2d 800). The mother failed to present “ ‘evidence that the [children are] attending school and receiving the required instruction in another place’ or to establish a reasonable justification for the children's absences and thus failed to rebut the prima facie evidence of educational neglect” ( id.).
Finally, we reject the contention of the mother that she received ineffective assistance of counsel at the fact-finding hearing. “It is not the role of this Court to second-guess the attorney's tactics or trial strategy” ( Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351–1352, 822 N.Y.S.2d 349,lv. denied7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990) and, based on our review of the record, we conclude that the mother received meaningful representation ( see id. at 1352, 822 N.Y.S.2d 349).
It is hereby ORDERED that said appeal from the order insofar as it concerns disposition is unanimously dismissed and the order is affirmed without costs.