IN RE: ASHLEY S. (2018)

Order of disposition, Family Court, Bronx County (Ruben A. Martino, J.), entered on or about August 8, 2016, to the extent it brings up for review a fact-finding order, same court and Judge, entered on or about June 7, 2016, which, after a hearing, found that respondent mother neglected three of her children and derivatively neglected the fourth child, unanimously affirmed, without costs.

The Family Court's finding that the mother medically neglected Nayleen by failing to seek prompt medical attention for her serious, second-degree burn and then failing to comply with the doctor's instructions for follow-up care, was supported by the record (see Family Ct Act [FCA] § 1012[f][i][A];  Matter of Hofbauer, 47 N.Y.2d 648, 654–655, 419 N.Y.S.2d 936, 393 N.E.2d 1009 [1979];  Matter of R./C. Children, 303 A.D.2d 172, 172, 755 N.Y.S.2d 236 [1st Dept. 2003] ).  Unlike the cases cited by respondent mother (see Matter of Vallery P. [Jondalla P.], 106 A.D.3d 575, 575, 967 N.Y.S.2d 13 [1st Dept. 2013];  Matter of Alexander D., 45 A.D.3d 264, 264–265, 845 N.Y.S.2d 244 [1st Dept. 2007] ), the injuries at issue here were not “minor.”

The finding that the mother medically neglected the infant Juan by failing to ensure that he consistently received proper dosages of medication, which was prescribed in relation to a potentially serious or terminal illness, was also supported by the record (see Matter of Joelle T. [Laconia W.], 140 A.D.3d 513, 514, 34 N.Y.S.3d 15 [1st Dept. 2016] ).  The mother failed to preserve for appellate review her contention that the Family Court improperly granted the agency's request to conform the pleadings to the proof and, in any event, her argument is unavailing (see Matter of Madison M. [Jennifer P.], 140 A.D.3d 631, 632, 33 N.Y.S.3d 268 [1st Dept. 2016];  Matter of Richard S. [Lacey P.], 130 A.D.3d 630, 632–633, 14 N.Y.S.3d 400 [2d Dept. 2015], lv denied 26 N.Y.3d 906, 2015 WL 5446020 [2015];  Matter of Michelle S., 195 A.D.2d 721, 722, 600 N.Y.S.2d 303 [3d Dept. 1993] ).

Because the medical neglect findings as to Nayleen and Juan were proper, the finding of derivative neglect as to Shawn based thereon was likewise proper (see Matter of R./C. Children at 172, 755 N.Y.S.2d 236).

Finally, the finding that the mother educationally neglected Ashley was supported by the record (see FCA § 1012[f][i][A] ).  Ashley was absent 22 times and late 36 times between September 2014 and February 2014, and only 11 of these absences were attributable to illness (see Matter of Aliyah B. [Denise J.], 87 A.D.3d 943, 943, 930 N.Y.S.2d 2 [1st Dept. 2011] ).  Unlike the cases relied upon by the mother, here, there was no evidence of any obstacles to attendance or other explanation for the absences (see Matter of Chastity O.C. (Angie O.C.), 136 A.D.3d 407, 407, 24 N.Y.S.3d 610 [1st Dept. 2016];  Matter of Nashawn Dezmen C. (Temikia C.), 133 A.D.3d 434, 434–435, 18 N.Y.S.3d 846 [1st Dept. 2015];  Alexander D., 45 A.D.3d at 264, 845 N.Y.S.2d 244).  Moreover, the record reflects that Ashley was demonstrating developmental and academic delays (see Matter of Jonathan M. (Gilda L.), 139 A.D.3d 438, 438–439, 29 N.Y.S.3d 182 [1st Dept. 2016] ).  It is reasonable to conclude that these delays were exacerbated by her excessive absences (see Matter of Annalize P. (Angie D.), 78 A.D.3d 413, 414, 911 N.Y.S.2d 291 [1st Dept. 2010] ).