IN RE: DAYSHAUN W.

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Supreme Court, Appellate Division, Fourth Department.

IN RE: DAYSHAUN W., SHAKIMAH W.

CAF 14–00050

Decided: November 20, 2015

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–APPELLANT. MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (PETER A. ESSLEY OF COUNSEL), FOR PETITIONER–RESPONDENT. CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR INTERVENOR–RESPONDENT.

MEMORANDUM AND ORDER

TANYA J. CONLEY, ATTORNEY FOR THE CHILDREN, ROCHESTER.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  These consolidated appeals arise from a neglect proceeding pursuant to Family Court Act article 10 and a custody proceeding pursuant to Family Court Act article 6. Both proceedings concern the children of Rickey L.W. (father), intervenor in the neglect proceeding and petitioner in the custody proceeding, and Linda M., respondent in the custody proceeding.  The children, upon the consent of the parents, had been in custody of a nonrelative, Jasmine G. (respondent), respondent in both proceedings.  In appeal No. 1, respondent appeals from an order that, inter alia, adjudged that the children, Dayshaun W., Shakimah W., and Anastasia M., had been neglected by her.  In appeal No. 2, respondent appeals from an order that, inter alia, awarded sole custody of Dayshaun and Shakimah to the father.  Sole custody of Anastasia was previously awarded to the father in an order affirmed by this Court on appeal (Matter of Wilson v. McCray, 125 AD3d 1512, lv denied 25 NY3d 908).

We reject the contention of respondent in appeal No. 1 that petitioner, Monroe County Department of Human Services (DHS), failed to establish educational and medical neglect with respect to Dayshaun by a preponderance of the evidence.  “Unrebutted evidence of excessive school absences [is] sufficient to establish ․ educational neglect” (Matter of Gabriella G. [Jeannine G.], 104 AD3d 1136, 1137 [internal quotation marks omitted] ).  DHS presented evidence establishing “a significant, unexcused absentee rate that ha [d] a detrimental effect on the child's education” (Matter of Ember R., 285 A.D.2d 757, 758, lv denied 97 N.Y.2d 604), and respondent failed to establish a reasonable justification for Dayshaun's absences or otherwise rebut the prima facie evidence of educational neglect (see Gabriella G., 104 AD3d at 1137).  DHS also established a prima facie case of medical neglect by presenting evidence of respondent's failure to follow treatment recommendations for Dayshaun upon his discharges from psychiatric hospitalizations, and respondent failed to rebut the agency's prima facie case (see Matter of Samuel DD. [Margaret DD.], 81 AD3d 1120, 1124;  Matter of Dustin P., 57 AD3d 1480, 1480–1481).  Finally, in appeal No. 1, we conclude that Family Court properly determined that the evidence of neglect with respect to Dayshaun “demonstrates such an impaired level of ․ judgment as to create a substantial risk of harm for any child in respondent's care” (Matter of Daniella HH., 236 A.D.2d 715, 716), thus warranting a finding of derivative neglect with respect to Shakimah and Anastasia (see Matter of Jovon J., 51 AD3d 1395, 1396).

We reject respondent's contention in appeal No. 2 that the court erred in awarding sole custody of Dayshaun and Shakimah to the father.  Contrary to respondent's contention, we conclude that she failed to meet her burden of establishing that the father relinquished his superior right to custody because of “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544;  see Matter of Jody H. v. Lynn M., 43 AD3d 1318, 1319).  “[I]t therefore was unnecessary for the court to engage in a best interests analysis before awarding custody of the child[ren] to him” (Jody H., 43 AD3d at 1318).

Frances E. Cafarell

Clerk of the Court