IN RE: GIANCARLO P. (2003)

Supreme Court, Appellate Division, First Department, New York.

IN RE: GIANCARLO P., A Child Under the Age of Eighteen Years, etc., Maria P., Respondent-Respondent, Commissioner of the Administration for Children's Services, Petitioner-Appellant.

Decided: June 03, 2003

NARDELLI, J.P., TOM, ANDRIAS and LERNER, JJ.

Ronnie Dane, for Giancarlo P. Elizabeth A. Adinolfi, for Respondent-Respondent. Marta Ross, for Petitioner-Appellant.

Order, Family Court, New York County (Helen Sturm, J.), entered on or about May 8, 2002, dismissing a child protective proceeding alleging educational neglect, unanimously affirmed, without costs.

The child's prolonged, unexcused absence from school does not, ipso facto, establish either the parental misconduct or the harm or potential harm to the child necessary to a finding of neglect under Family Ct Act § 1012(f)(i)(A) (see Matter of Jessica Y., 161 A.D.2d 368, 555 N.Y.S.2d 114; Matter of Jennifer N., 173 A.D.2d 971, 972, 569 N.Y.S.2d 480). A preponderance of the evidence shows that respondent was actively engaged with school authorities in the process of securing an appropriate and specific special education placement for the child, and there is no evidence that the child's education was adversely affected by his absence from school.

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