IN RE: S.M.W. and Another (2025)

Order of disposition, Family Court, Bronx County (Ronna H. Gordon–Galchus, J.), entered on or about October 29, 2024, as amended November 18, 2024, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about May 3, 2024, which, after a hearing, determined that respondent father neglected the subject children, unanimously modified, on the law and the facts, to vacate so much of the neglect finding, and provisions of the order of disposition as was based on the father's mental illness, and otherwise affirmed, without costs.

A preponderance of the evidence supports Family Court's finding that parents educationally neglected the children (see Family Court Act §§ 1012[f][i][B], 1046[b][i]).  During the fall 2022 term and the previous school year, both children were absent more than half of the school days, and evidence of excessive unexcused absences from school will support a finding of neglect (see Matter of Amberlina V. [Alexis R.], 187 A.D.3d 658, 659, 131 N.Y.S.3d 156 [1st Dept. 2020]).  Even crediting the father's testimony that he made efforts to ensure the children attended school, we find that petitioner provided sufficient evidence to establish that the father educationally neglected the children (see Matter of Malik S. [Latangya B.], 141 A.D.3d 428, 428, 34 N.Y.S.3d 56 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6114057 [2016]).  Despite years of outreach from the children's schools, the father failed to follow up, attend important meetings, or obtain proffered services.  School records indicated that the children's academic progress suffered due to excessive absences and tardiness;  both children were failing classes and not progressing towards annual goals.  Under these circumstances, even though the father spoke with school personnel, inquired about assistance, and ultimately requested a reevaluation for one of the children, he nevertheless failed to take adequate steps to prevent the children from experiencing significant educational delays resulting from poor attendance (see Matter of Kyeley V. [Antoinette V.], 160 A.D.3d 468, 468, 71 N.Y.S.3d 510 [1st Dept. 2018];  Matter of Jonathan M. [Gilda L.], 139 A.D.3d 438, 438–439, 29 N.Y.S.3d 182 [1st Dept. 2016]).

However, petitioner did not satisfy its burden to prove by a preponderance of the evidence that the father neglected the children because of his mental illness (see Matter of C.B. [Tiffany S.], 225 A.D.3d 415, 416, 206 N.Y.S.3d 567 [1st Dept. 2024]).  Although the father did not dispute that he suffered from depression, he testified that he was engaged in mental health treatment, including therapy and medication, and petitioner did not provide either documentary evidence or expert testimony demonstrating that the father's mental illness interfered with his “judgment and parenting abilities” or connecting the father's depression with his inadequate efforts to ensure the children attended school, thereby placing the children at imminent risk of physical, mental or emotional impairment” (Matter of Shanai W. [Sherry P.], 212 A.D.3d 447, 448, 179 N.Y.S.3d 577 [1st Dept. 2023]).

We have considered the mother's contentions and find that they are untimely, and in any event unavailing.