| Matter of Brittany T. |
| 2008 NY Slip Op 01666 [48 AD3d 995] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Brittany T., a Child Alleged to be Neglected.Chemung County Department of Social Services, Respondent; Shawna T. et al.,Appellants. |
—[*1] Francisco P. Berry, Ithaca, for Robert T., appellant. Brian Maggs, County Attorney, Elmira (Samuel D. Castellino of counsel), for respondent. Louise Johns, Law Guardian, Elmira.
Kavanagh, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered February 27, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to find respondents in willful violation of an order of supervision andplaced respondents' child with petitioner.
In 2003, petitioner filed two petitions alleging that respondent Shawna T. (hereinafter themother) and respondent Robert T. (hereinafter the father) neglected their child (born in 1994). Ineach petition, petitioner asserted that respondents neglected their child by failing to take stepsdesigned to address her obesity and by not ensuring that she routinely attended school. When thepetitions were filed, the child's weight placed her in the 99th percentile of the body mass indexfor children and led to a variety of health issues, including gallstones, excessive fat in her liver,intermittent high blood pressure and cholesterol problems, as well as insulin resistance, [*2]acanthosis nigricans, knee pain and psychosocial complicationsassociated with obesity. In addition, the child's attendance at school was sporadic with numerousunexcused and unexplained absences.
Respondents subsequently consented to the entry of a finding of neglect as well as an orderof supervision dated August 4, 2003,[FN1]which required them to abide by certain enumerated terms and conditions, all of which weredesigned to facilitate improvement in the child's dietary patterns while at the same timeaddressing her immediate health and educational needs. After the order had been in force forthree months, Family Court conducted a review of the child's condition and, upon finding thatthere had been little or no improvement in her physical condition, removed the child, withrespondents' consent, to foster care in a kinship program where she was placed with her maternalaunt. The child was subsequently returned to her parents' care in April 2004.
Six months later, petitioner filed a petition alleging that respondents had violated a numberof the conditions contained in the order of supervision with the result that the child was returnedto petitioner's care, where she remained until September 2005.[FN2]During this time, the child's weight stabilized and actually decreased by 14 pounds to 238pounds. She was subsequently returned to respondents and, after six months in their care, herweight increased approximately 23 pounds. Thereafter, petitioner commenced this proceeding inMarch 2006 alleging that respondents, by the quality of care they rendered their child and, inparticular, their failure to effectively address her dietary needs and ensure her attendance inschool, willfully violated certain conditions contained in the order of supervision and soughtremoval of the child to petitioner's care. After hearings were conducted, Family Court found thatrespondents had, in fact, willfully violated certain conditions contained in the order ofsupervision and removed the child from their care. It directed that petitioner care for the childpending appropriate placement and extended the term for which the order of supervision was toremain in effect, prompting this appeal.
First, we note that respondents' challenge to the initial finding of neglect entered against themis not properly before us. That finding was entered with their consent and they failed to make atimely application in Family Court to vacate that order (see Matter of Cheyenne QQ., 37 AD3d 977, 978 [2007]; Matterof Forbus v Stolfi, 300 AD2d 852, 852 [2002], appeal and lv dismissed 99 NY2d642 [2003]; see also Matter of FantasiaY., 45 AD3d 1215 [2007]). We do, however, find merit in respondents' claim thatpetitioner failed to establish at the hearing that they willfully violated any term or conditioncontained in the order of supervision and, as such, we now reverse.
A finding that a violation of such an order is willful carries with it as a potential penalty asix-month jail sentence (see Family Ct Act § 1072 [b]). The specter of suchpunishment, as [*3]well as the potential consequences that such afinding may in fact have for the family unit, requires that competent evidence be presented thatestablishes the willfulness of the violation by clear and convincing evidence (see Matter ofElizabeth T., 299 AD2d 748, 750-751 [2002], lv dismissed 99 NY2d 610 [2003];compare Matter of Linda FF., 301 AD2d 887, 889 [2003] [this Court found a willfulviolation based on "ample evidence"]). Applying that standard to the evidence produced in thisproceeding leads us to the inescapable conclusion that petitioner has not met its burden ofshowing that the parents willfully violated any of the terms or conditions as set forth in the orderof supervision. Specifically, the petition alleges, and with one exception Family Court found, thatthe parents violated terms 18, 21, 22, 23, 26 and 27 of the order of supervision. We will addresseach alleged violation separately.
Term 18 of the order of supervision required that "[r]espondent(s) shall sign all releases ofinformation for themselves and the child requested by [petitioner] in order that [petitioner] maymonitor the [r]espondent[s'] progress and attendance in all programs to which they are referred."The petition alleged that this term was violated when the mother refused to provide petitionerwith a release for information regarding her emergency room hospitalization for a cardiacepisode that occurred in March 2006. Petitioner sought information regarding the mother'shospitalization because a mental health evaluation had been performed on her as part of her careand treatment, and petitioner contends that this evaluation was relevant in terms of her ability tocare for her child. While this information might otherwise be relevant, term 18 only required theproduction of documents that involved respondents' and the child's "progress and attendance in[any] programs to which they [were] referred." This condition was not intended to providepetitioner with unfettered access to all of respondents' medical records; the mental healthevaluation sought by petitioner had nothing to do with this condition, and the mother's refusal toprovide this record cannot form the basis of the finding of a willful violation of this particularterm of the order of supervision.
Term 21 requires that respondents "cooperate with [petitioner] and all programs to whichthey are referred." Specifically, it is alleged by petitioner that on four separate occasionsoccurring over a three-week period, each parent used inappropriate language when speaking withtheir caseworker either during a telephone call or a home visit. Each resulted in apologies beingtendered by the parent shortly after the incident had occurred and none of the incidents, it isalleged, interfered in any meaningful way with the service being rendered or the child'sparticipation in a recommended program. Given the circumstances—six months of directsupervision by petitioner in the care provided their child—some level of frustration, whileregrettable, is understandable and does not amount to a demonstration of a deliberate or willfulindifference to respondents' obligations under this order (see Matter of Rachel A., 278AD2d 528 [2000], lv dismissed 96 NY2d 854 [2001]; Matter of Jesse DD., 223AD2d 929, 930-931 [1996], lv denied 88 NY2d 803 [1996]).
Term 22 of the order required respondents to "use all resources available to ensure themental, physical and emotional well-being of the child," while term 27 required them to enrollthe child, at their own cost, in a local gym and ensure that the child attended the gym at least twoto three times each week.[FN3]Petitioner alleged that the child's attendance at the fitness center [*4]selected by respondents during the 31 weeks in question was at bestsporadic and did not satisfy their obligations under this order. However, records kept at thefitness center—which were produced during the hearing—establish that the childattended the gym on at least one day per week for 27 of the 31 weeks involved. During thatperiod, in addition to attending the fitness center, the child participated in an eight-week swimprogram, a weekly bowling league, and the Fit Families Exercise-Nutrition program.Respondents, in addition, claim that even though they could not afford the membership fees, theirdaughter did attend as often as possible and did participate in various programs. The child'sattendance, while not perfect, did represent a recognition by respondents of their obligationsunder the terms of this order and, given the circumstances, constituted a good faith attempt tofulfill them (see Matter of Marquise EE., 257 AD2d 699, 701 [1999]).
Term 23 of the order provides: "Respondent[s] shall take all actions necessary to ensure that[their child] . . . attend school regularly and complete all homework assignments.The [r]espondent[s] shall communicate and cooperate with the [child's] school to ensure the[child] [is] in an appropriate classroom setting. The [r]espondent[s] shall account for all absencesor tardies with a note personally provided by [r]espondent[s] to the appropriate school official.Absences of three or more days in succession shall be accounted for by a note from a health careprovider personally provided by the [r]espondent[s] to the appropriate school official." Petitioneralleged that the child, from September 14, 2005 through April 6, 2006, missed 18 days and wastardy on 25 separate occasions. However, school officials confirm that each absence during thisperiod was excused, that the majority of them were for appointments involving services, all ofwhich were court ordered, and that, with the exception of absences for medical appointments andfamily counseling services, the child had a good attendance record for the school year. Inaddition, not only did respondents contact the school whenever the child was absent to secure herschool assignments, but the records reveal that she received passing grades in all of her subjectsduring this period and that, for at least part of that school year, she qualified for placement on theschool honor roll. This evidence is certainly at odds with any claim that respondents engaged inconduct which constituted a "continuous, willful and unjustifiable refusal" to comply with theterms of this order (Matter of Rachel A., 278 AD2d at 529).
Petitioner lastly alleged that respondents violated term 26 of the order which required thatthey participate with the child in a nutrition program, attend its meetings and utilize the skills andtechniques taught in the program to address their child's obesity, as well as her nutritional needs.Petitioner claims that the increase in the child's weight during this period establishes thatrespondents allowed her to consume foods which were not appropriate to her dietary needs andher daily caloric intake obviously exceeded acceptable levels. It is true that the child gainedweight after being returned to respondents, but other factors outside of their control may wellaccount for this increase. In that regard, it was established that, throughout this period, thechild—who undoubtedly has an eating disorder—consumed inappropriate foods atschool when she was not subject to respondents' immediate supervision and control. Also,respondents, while caring for the child, maintained food logs in an attempt to accurately chartwhat foods she [*5]consumed, and tests that were conducted inJanuary 2006 as to the child's cholesterol levels and liver functions showed normal or betterresults as well as significant improvement since April 2005 when the child was in foster care. Inaddition, respondents routinely traveled more than 130 miles from their home with the child tomeet with her nutritionist and to ensure that the child continued to participate in programsprovided at the nutrition clinic. While the child did gain weight, it cannot be said that thisoccurred as a result of respondents' deliberate and willful disregard of their obligations as spelledout by this term of the order of supervision.
While we recognize and share petitioner's concern for the child's health and well-being andare not unmindful of the fact that her weight and dietary habits while in respondents' care had notbeen, to say the least, ideal,[FN4] we cannot conclude that petitioner has demonstrated by clear and convincing evidence thatrespondents exhibited a "continuous, willful and unjustifiable refusal to accept petitioner'srecommendation[s]" (Matter of Rachel A., 278 AD2d at 529) or demonstrated anunwillingness to comply with the terms of the order (see Matter of Linda FF., 301 AD2dat 888-890 [2003]). The state of the record constrains us to conclude that Family Court erred byfinding that respondents willfully violated the order of supervision.
As a result of our finding, we need not address respondents' remaining arguments.
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed,on the law, without costs, and petition dismissed. [See 15 Misc 3d 606.]
Footnote 1: The order was extended on June24, 2004, February 14, 2005, February 7, 2006 and March 8, 2007.
Footnote 2: The petition was adjourned forsix months in contemplation of dismissal.
Footnote 3: It appears that Family Courtfound that these conditions, taken together with the facts presented, constituted a willful violationof the order.
Footnote 4: In this regard, the LawGuardian's statement in her appellate brief that, during her most recent placement, the child haslost a significant amount of weight is outside the record.