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INSUFFICIENT EVIDENCE OF NEGLECT AND DERIVATIVE NEGLECT FOR FAILURE TO PROVIDE ADEQUATE FOOD, CLOTHING AND SHELTER; EVIDENCE SUPPORTED EDUCATIONAL NEGLECT AND DERIVATIVE NEGLECT, DESPITE MOTHER’S HOME-SCHOOLING EFFORTS, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department reversed Family Court’s finding of neglect and derivative neglect for failure to provide adequate food, clothing and shelter, The evidence, i.e., the caseworker’s progress notes and the testimony of a police officer based upon a single visit, was deemed insufficient. However, the majority, over a two-justice dissent, found the evidence of educational neglect and derivative neglect sufficient. The older children were not attending school, but the college-educated mother was home-schooling them:

Although the mother’s living conditions were unsuitable, the record presents no basis for a conclusion that the children’s “physical, mental or emotional condition ha[d] been impaired or [wa]s in imminent danger of becoming impaired” as a result of their exposure to such environment (Family Court Act § 1012[f][i]). The officer’s testimony provided no information about the physical or mental condition of the children at the time of her visit, and petitioner did not introduce the results of the medical examination of the children conducted on the day when they were first removed from the home. …

The court found that the mother did not establish that she was qualified to teach, especially with respect to elementary-school-aged children. The mother admitted that she knew her educational plan was not approved by the Board of Education, yet, she never followed up with an approved individual home instruction plan as required by the Board of Education. The court found that the mother failed to show that her instruction was substantially equivalent to that in public school, and that the children were educated for at least as many hours as provided in public school … . The court further found that the mother’s use of college-level textbooks and testing the children using high school examination tests did not constitute appropriate education for elementary-school-aged children. We defer to these findings of the Family Court.  Matter of Puah B. (Autumn B.–Hemerd B.), 2019 NY Slip Op 04451, First Dept 6-6-19

 

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