Opinion
November 13, 1998
Appeal from Order of Ontario County Family Court, Henry, Jr., J. — Neglect.
Present — Denman, P. J., Green, Hayes, Callahan and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: Family Courts finding of neglect following a fact-finding hearing is supported by a preponderance of the evidence ( see, Family Ct Act § 1012 [f] [i] [A]; Matter of Kyle T., 255 A.D.2d 945 [decided herewith]; Matter of Jovann B., 153 A.D.2d 858). The record establishes that respondent's child, who was 13 years old at the time of the hearing, had 46 illegal school absences from October 25, 1996 to March 13, 1997, and had not attended school at all since January 31, 1997. Such proof was sufficient to establish a prima facie case of educational neglect ( see, Matter of Christa H., 127 A.D.2d 997). Although respondent submitted evidence that the child had a tutor beginning in May 1997, he submitted no evidence that the child, had a tutor or otherwise received any education from October 25, 1996 until May 1997. In any event, it was the Law Guardian who arranged for the tutoring that began in May 1997. Based on the child's excessive absences from school and testimony that the child was failing all of his subjects, the court properly found that the child was in imminent danger of becoming impaired as a result of respondent's failure to exercise a minimum degree of care for the child ( see, Family Ct Act § 1012 [f] [i]; Matter of Jovann B., supra).