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

1187
CAF 14-00050
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF DAYSHAUN W., SHAKIMAH W.
AND ANASTASIA M.
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MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JASMINE G., (ALSO KNOWN AS FELICIA V., ALSO
KNOWN AS FELICIA M.), RESPONDENT-APPELLANT.
-------------------------------------------
RICKEY L.W., INTERVENOR-RESPONDENT.
(APPEAL NO. 1.)


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.

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


     Appeal from an order of the Family Court, Monroe County (Joan S.
Kohout, J.), entered December 9, 2013 in a proceeding pursuant to
Family Court Act article 10. The order, among other things, adjudged
that respondent had neglected the subject children.

     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
                                 -2-                          1187
                                                         CAF 14-00050

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
AD2d 757, 758, lv denied 97 NY2d 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 AD2d 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 NY2d 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).




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
