Manhattan appellate judges differed on just how much effort a woman made getting her troubled teenaged daughter to school, with a slim majority overturning a Family Court judge’s finding of neglect.
The Appellate Division, First Department dissent insisted Maribel R. only put up “occasional, feeble attempts to ensure” Brianna R. went to school. But the majority said that given the case’s facts, the mother “exercised the minimum degree of care” and vacated the neglect finding Tuesday.
The 3-2 majority said in In re Brianna R., 11430-11430A, that “despite the many obstacles the mother faced, [Maribel] took steps to ensure that the child attended school.”
Noting Maribel’s efforts—such as talking with school officials about Brianna’s attendance and mulling a transfer to a closer school—the majority said, “[t]he record shows that any impairment the child suffered was as a result of her various psychiatric and behavioral issues, rather than the mother’s failure to compel her to attend school.”
Besides, Brianna was also “beyond the control” of the Administration for Children’s Services and the school which also could not ensure attendance, said Justices Rolando Acosta, Karla Moskowitz and Darcel Clark.
But the dissent, written by Justice John Sweeny Jr. and joined by Justice David Saxe, said Maribel’s “attempts, when viewed objectively in context with Brianna’s other behavioral problems, fell far short of the minimum degree of care required by statute,” pointing to Family Court Act §1012 (f)(i).
The statute defines a child as neglected “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.”
Sweeny said the majority premised its holding on distinguishable rulings and should have hewed to the lower court’s credibility findings, given “numerous” examples where Maribel was found to be “less than candid.”
The case was submitted on Dec. 4.
Brianna had a “history of truancy, tardiness, leaving school early and loitering in the hallways.” Moreover, the majority said, the teenager had previously lied, was “defiant” and “violent,” and threatened to harm herself and Maribel when she didn’t get her way. Brianna suffered from a mood disorder, experienced hallucinations and was subsequently hospitalized. Her mediation caused drowsiness and disorientation that worsened her inability and refusal to go to school.
In the 2009-2010 school year, Brianna had 83 absences and another 63 absences and five late days in the first half of the following school year.
ACS filed its neglect petition in February 2011, also pointing to Maribel holding a late night 15th birthday party for Brianna where there appeared to be alcohol and drunken youths.
A police officer would later say he found a male shot in the eye outside the building and found some 50 youths in Maribel’s apartment, most appearing intoxicated.
Pending resolution of the case, Brianna was remanded to ACS custody from November 2011 to February 2012.
In October 2012, Bronx Family Court Judge Gayle Roberts decided Maribel had neglected Brianna by failing to provide for her educational needs and failing to offer sufficient guardianship. About a month later, Roberts in her order of disposition released Brianna to her mother with ACS’ supervision for up to six months.
In its reversal, the majority acknowledged Brianna’s “excessive amount of absences” but those absences did not “ipso facto, establish either the parental misconduct or the harm or potential harm” for finding educational neglect.
Apart from Brianna’s issues, Maribel was also unable to afford a Metrocard to continually escort her daughter. In a footnote, the majority observed that Roberts questioned Maribel for not supplying information to back up the financial hardship claim but still determined Maribel was indigent.
As for the party incident, the majority said Maribel “exercised poor judgment” but noted there was no evidence Brianna had been drinking or that her “physical, mental or emotional condition was impaired or was in imminent danger of becoming impaired as a result of this one isolated incident.”
Sweeny called the majority view on the party “puzzling.” Given Brianna’s problems, it was “beyond cavil” that the party incident put her in “imminent danger.”
Still, Sweeny said Roberts based her decision on the entire record, not just the party episode.
He said it was “uncontroverted that Brianna’s education was adversely affected by her absence from school, as she was failing all subjects.”
At the hearing, though Maribel denied being “repeatedly advised” of Brianna’s absence and tardiness, Sweeny said the record “clearly demonstrates otherwise.”
He noted a school attendance officer’s testimony that she called Maribel 50 times and sent at least 20 letters to her to help with attendance problems.
Sweeny said it was “of particular note” that in other cases with fewer absences and tardiness, and with “inadequate” explanations from parents, other First Department courts decided there was a preponderance of evidence supporting an educational neglect finding.
The majority, however, said the cited cases were “based … on more than school absences alone.”
For example, it noted one case, Matter of Kaila A., 95 AD3d 421, where the child missed 59 days over a two-year period; the Kaila A. court also determined the respondent neglected the child by committing domestic violence acts against the child’s mother in front of the child.
Andrew Baer of Manhattan was Maribel’s assigned appellate attorney. He said “we are very pleased with the decision and think the majority got it right” acknowledging that Maribel took “appropriate steps” to try getting her daughter to school and recognizing that any impairment for Brianna was based on her own issues.
John Newbery, a staff attorney in the appeals unit of the Legal Aid Society’s juvenile rights practice, represented Brianna and argued no neglect had occurred.
“We think the majority correctly recognized and read through the lines that Brianna’s service needs didn’t stem from any neglect on the mom’s part.” He said Brianna, now 18, is living with her mother.
Assistant Corporation Counsel Michael Pastor appeared for ACS. “We respectfully disagree with the Court’s decision and are considering our options,” according to a Law Department spokeswoman.