Opinion
2013-09647, Docket Nos. N-12692-12, N-12693-12
04-01-2015
In the Matter of JUSTIN R. (Anonymous). Administration for Children's Services, respondent; Gilbert R. (Anonymous), Jr., appellant. (Proceeding No. 1) In the Matter of Joseph R. (Anonymous). Administration for Children's Services, respondent; Gilbert R. (Anonymous), Jr., appellant. (Proceeding No. 2).
Leighton M. Jackson, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Kathy Chang Park of counsel), for respondent. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Adira J. Hulkower of counsel), attorney for the children.
Leighton M. Jackson, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Kathy Chang Park of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Adira J. Hulkower of counsel), attorney for the children.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal from an order of fact-finding and disposition of the Family Court, Kings County (Steven Z. Mostofsky, J.), dated July 17, 2013. The order, after fact-finding and dispositional hearings, found that the father neglected the subject children, and released the subject children to the custody of the father with supervision by the Administration for Children's Services for a period of three months.
ORDERED that the appeal from so much of the order of fact-finding and disposition as released the children to the custody of the father with supervision by the Administration for Children's Services for a period of three months is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provision thereof finding that the father neglected the children by failing to take the steps necessary for the subject child Joseph to be placed in a special private school; as so modified, the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of fact-finding and disposition as released the children to the custody of the father with three months of supervision by the Administration for Children's Services must be dismissed as academic, as that portion of the order expired by its own terms (see Matter of Joshua P. [David J.], 111 A.D.3d 836, 837, 975 N.Y.S.2d 440 ; Matter of Trenasia J. [Frank J.], 107 A.D.3d 992, 966 N.Y.S.2d 875, lv. granted 22 N.Y.3d 859, 2014 WL 113767 ; Matter of Ndeye D. [Benjamin D.], 85 A.D.3d 1026, 926 N.Y.S.2d 119 ).
Contrary to the father's contention, the Family Court's finding of neglect based on his failure to meet the children's educational needs up to the date of the petition was supported by a preponderance of the evidence. The unrebutted evidence submitted at the fact-finding hearing established that both children suffered excessive school absences and tardiness without reasonable justification (see Matter of Khalil M. [Ebony A.], 94 A.D.3d 1003, 942 N.Y.S.2d 370 ; Matter of Aliyah B. [Denise J.], 87 A.D.3d 943, 930 N.Y.S.2d 2 ; Matter of Mariah C. [Frey C.-M.], 84 A.D.3d 1372, 923 N.Y.S.2d 892 ).
However, since the petition did not allege that the father neglected the children by failing to complete the paperwork necessary for the subject child Joseph to be placed in a special private school at the start of the 2012/2013 school year, and the petition was not properly amended in accordance with Family Court Act § 1051(b), the Family Court's finding that the father neglected the subject children on that ground was improper (see Matter of Joseph O., 28 A.D.3d 562, 813 N.Y.S.2d 213 ; Matter of Stephanie R., 21 A.D.3d 417, 418, 799 N.Y.S.2d 804 ; see also Matter of Vallery P. [Jondalla P.], 106 A.D.3d 575, 967 N.Y.S.2d 13 ; Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 962 N.Y.S.2d 726 ).
The father's remaining contentions are without merit.