        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

564
CAF 12-02030
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF AIRIONNA C., JASMINE E.,
RONDELL E., JERMONI E., CHENE E., SHAWNELL E.,
SHAMAR J., SHAMARA J., KANIYAH C., CARNISHA J.,
AND CARNAISHIA J.
-----------------------------------------------   MEMORANDUM AND ORDER
MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT;

SHERNELL E., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MERIDETH SMITH, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

MARY P. DAVISON, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.

MARGARET MCMULLEN RESTON, ATTORNEY FOR THE CHILD, ROCHESTER.

STEVEN B. LEVITSKY, ATTORNEY FOR THE CHILD, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Gail A.
Donofrio, J.), entered September 13, 2012 in a proceeding pursuant to
Family Court Act article 10. The order determined that respondent had
neglected the subject children.

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

     Memorandum: Petitioner commenced this neglect proceeding
alleging, inter alia, that one of respondent mother’s children
severely burned herself with a lighter while the mother’s 15-year-old
daughter was babysitting seven of the younger children. The mother
appeals from an order adjudging the subject children to be neglected.
We note at the outset that we agree with the mother and the attorney
for four of the children that Family Court failed to comply with CPLR
4213 (b) inasmuch as the court failed to set forth the “facts it
deem[ed] essential” to its decision. Nevertheless, we exercise our
independent power of factual review, and we agree with the court’s
neglect determination (see Matter of Brian C., 32 AD3d 1224, 1225, lv
denied 7 NY3d 717; Matter of Jill F.P. v Sammie H., 305 AD2d 1050,
1051), both with respect to educational neglect for three of the
children and inadequate supervision for all of the children.
                                 -2-                           564
                                                         CAF 12-02030

     With respect to the issue of educational neglect for three of the
children, it is well settled that “ ‘[p]roof that a minor child is not
attending a public or parochial school in the district where the
parents reside makes out a prima facie case of educational neglect’ ”
(Matter of Matthew B., 24 AD3d 1183, 1184). “ ‘Unrebutted evidence of
excessive school absences [is] sufficient to establish . . .
educational neglect’ ” (id.; see Matter of Ember R., 285 AD2d 757,
758-759, lv denied 97 NY2d 604) and, here, petitioner presented
unrebutted evidence from the Rochester City School District that, for
the 2010-2011 school year three of the children had a combined 97
unexcused absences and 86 unexcused tardies (see Matthew B., 24 AD3d
at 1184).

     With respect to the issue of inadequate supervision, the mother
testified that she had left a lighter in her purse and that she had
placed the purse in a “purse bucket” in her bedroom, a container that
anyone could open. The mother also testified that she believed that
her 15-year-old daughter was “mature and responsible” enough to be
left in charge of her siblings and, although she initially testified
that she had left the 15-year-old with five children on the date on
which one of the children burned herself with the lighter, the mother
subsequently testified that her daughter was in fact left in charge of
seven children, all under the age of seven. We note that the 15-year-
old child admitted to being asleep on the couch when the incident
occurred.

     Furthermore, even after the subject incident, a caseworker
arrived at the mother’s house and found a 14-year-old child left in
charge of the younger siblings. Moreover, as part of the
investigation leading up to the instant neglect petition, it was
reported that four of the children had been seen playing unsupervised
near a busy city street for at least five hours. We thus conclude on
the record before us that the mother neglected the children based upon
her failure to provide adequate supervision (see Matter of Benjamin
K., 28 AD3d 810, 812; Matter of William AA., 24 AD3d 1125).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
