| Matter of Shelby B. |
| 2008 NY Slip Op 07820 [55 AD3d 986] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Shelby B. and Another, Children Alleged to beNeglected. Clinton County Department of Social Services, Respondent; Tina D.,Appellant. |
—[*1] John Dee, Clinton County Department of Social Services, Plattsburgh, for respondent. Douglas E. Coleman, Law Guardian, Hudson.
Kavanagh, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredOctober 24, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, finding respondent in willful violation of prior orders of the court.
In July 2007, petitioner filed a Family Ct Act article 10 neglect petition alleging that respondent hadneglected her two children (born in 1994 and 1997). Family Court, in response to the allegationscontained in the petition, issued a temporary order of protection on behalf of the two children, andorders that directed respondent to cooperate with petitioner in the performance of substance abuseassessments and participate in evaluations to determine the status of her mental health. These ordersspecifically required respondent to keep petitioner advised of any change in her address, phone numberor household composition, and directed her to fully and completely cooperate with petitioner'scaseworkers in their ongoing efforts to provide assistance to her and her two children. Two monthsafter these orders were issued, petitioner filed this petition which alleged, among other things, thatrespondent, without notice, had moved [*2]from her residence and, foralmost two months, failed to keep petitioner informed of her whereabouts. It also alleged thatrespondent had not fully or faithfully cooperated with petitioner's caseworkers pursuant to the terms setforth in the orders.[FN*]
After a hearing, Family Court found that respondent had willfully violated the terms of the order ofprotection and orders for services and imposed a sanction of 90 days of incarceration, with leave forrespondent to apply for a suspension of the balance of the sentence if she was accepted into a programmonitored and administered by a drug court. Respondent now appeals.
We affirm. Petitioner was required to present competent proof to establish, by clear and convincingevidence, that respondent willfully violated an order of Family Court (see Family Ct Act§ 1072; Matter of Brittany T., 48AD3d 995, 997 [2008]; Matter ofBlaize F., 48 AD3d 1007, 1008 [2008]; see also Matter of Elliot v Marble, 49 AD3d 923, 924 [2008]). In thisregard, petitioner offered the testimony of one of its caseworkers, Sarah Lawrence, to the effect that atthe time these orders were issued, respondent lived at the Evergreen Townhouses in Clinton County.According to the director of Evergreen, however, respondent had not resided there since July 2, 2007and that on July 16, 2007, he had ordered that the locks to her apartment be changed. Lawrence alsotestified that respondent had not informed petitioner of any change in her address during this period andpetitioner's employees did not know of her whereabouts until August 27, 2007, when its caseworkerslearned of her new address.
In response, respondent claimed at the hearing that she did not move from the EvergreenTownhouses until early August 2007, and that on numerous occasions, both in person and bytelephone, she informed various employees of petitioner that she was moving from the EvergreenTownhouses and provided them with her new address. In response to this claim, one of the employeeswith whom respondent claimed to have had contact testified that at no time during this period didrespondent ever advise her that she had moved or disclose her new address. In addition, respondent,during the period when she claimed to have resided at the Evergreen Townhouses, acknowledged thatthe locks to her apartment had been changed, and on two separate occasions in July 2007, she had toobtain the assistance of maintenance personnel to gain admission to her apartment.
Family Court's finding that respondent had, in fact, willfully violated its orders was based upon itsassessment of the credibility of the witnesses who testified at the hearing and, as such, is entitled to duedeference (see Matter of Blaize F., 48 AD3d at 1009). The testimony established that onlydays after these orders had been issued, respondent moved to a new address without notifyingpetitioner and did so at a time when she acknowledged that she was fully and completely aware of herobligations under Family Court's orders. As such, petitioner has met its burden of establishing by clearand convincing evidence that respondent willfully violated provisions of orders as issued by FamilyCourt.[*3]
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur.Ordered that the order is affirmed, without costs.
Footnote *: The petition also alleged thatrespondent failed to keep appointments at a mental health clinic for the court-ordered evaluation andfailed to cooperate with the court-ordered drug evaluation. Before the hearing commenced, petitionerwithdrew these allegations.