| Matter of Nicolette I. |
| 2008 NY Slip Op 09314 [56 AD3d 1080] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Nicolette I., a Child Alleged to be Neglected.Schuyler County Department of Social Services, Respondent; Leslie I.,Appellant. |
—[*1] Kristin E. Hazlitt, Schuyler County Department of Social Services, Watkins Glen, forrespondent. Daniel J. Fitzsimmons, Law Guardian, Watkins Glen.
Kavanagh, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered December 28, 2007, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 10, to hold respondent in willful violation of a priororder of disposition.
In December 2005, respondent began receiving preventative services from petitioner withrespect to his daughter (born in 1998). In September 2006, after receiving two hotline reportsconcerning the child, petitioner filed an amended neglect petition alleging that respondent hadfailed to adequately supervise the child. Respondent consented to the entry of a general finding ofneglect and, subsequently, agreed to an order of disposition by which the petition was adjournedin contemplation of dismissal on the condition that respondent agreed to be placed underpetitioner's supervision for one year. This order also included certain conditions regarding thechild's care and specifically provided that respondent could not leave the child "alone with [*2]any individual who has not been approved by [petitioner]" and thatit was respondent's responsibility to "ensure that [the child was] properly supervised at all times."Finally, it also contained a condition that respondent was required to ensure that the child was notin the presence of any individual who was under the influence of drugs or alcohol.
In July 2007, petitioner filed an amended petition alleging that respondent willfully violatedthe terms of the December 2006 order of disposition,[FN*] and a hearing was conducted pursuant to Family Ct Act § 1027 seeking the immediateremoval of the child from his care. After Family Court took testimony from several witnesses,including respondent and the child's paternal grandmother, it was agreed by all involved that thechild would be placed with the paternal grandmother, and that the hearing seeking her permanentremoval from respondent's custody would be continued. In addition, the paternal grandmotherfiled a petition pursuant to Family Ct Act article 6 seeking legal custody of the child. The courtgranted the paternal grandmother temporary custody of the child, and a fact-finding hearing onthe allegations contained in the petition filed against respondent was scheduled.
Subsequently, the parties agreed that the child would continue to reside with the paternalgrandmother, and that Family Court could use the testimony taken at the emergency removalhearing to determine if respondent had willfully violated any of the conditions contained in theorder adjourning the neglect petition in contemplation of dismissal. Based on this evidence,Family Court found that respondent had willfully violated the order of disposition and entered afinding of neglect against him. Respondent now appeals and we affirm.
Respondent claims that the evidence produced at the removal hearing does not support afinding that he willfully violated the order of disposition. We disagree. At the hearing, it wasestablished, among other things, that respondent had not only consumed alcohol in violation ofthe terms of the order, but that he had left the child repeatedly in the care of an individual whonot only had a criminal record, but who had, on a prior occasion, threatened petitioner'spersonnel with bodily harm. This same individual had been seen in the company of the child,removing mail from mailboxes at residences located in the neighborhood. Thereafter, thisindividual was arrested and charged with trespass after he had been seen using the child to gainaccess to a neighborhood residence through a "doggy door." Both of these incidents occurredafter respondent had received a letter as well as an oral admonition from petitioner to the effectthat this individual would not be approved as someone who could care for the child and was not aperson who should be allowed in the house while the child was present. Based on this evidence,Family Court's decision that respondent willfully violated the terms of the order of disposition byfailing to properly supervise the child enjoys ample support in the record and should in allrespects be affirmed (see Matter ofBlaize F., 48 AD3d 1007, 1008-1009 [2008]; Matter of Elizabeth T., 299 AD2d748, 750-751 [2002], lv dismissed 99 NY2d 610 [2003]).
As for respondent's claim that he did not knowingly and intelligently waive his right to afurther hearing, the fact is that he was represented by counsel, and only announced his agreementto the stipulation regarding the use of the testimony from the removal hearing after he had a fulland fair opportunity to confer with his attorney (see Matter of Jonathan LL., 294 AD2d752, 753 [2002]; Matter of Oliver S. v Chemung County Dept. of Social Servs., 162AD2d 820, 822[*3][1990]). Finally, contrary to respondent'sclaim, Family Court did not interpret the parties' stipulation regarding the use of this testimony asa concession by him that he had violated the terms of the order of disposition. Instead, the courtclearly stated that the stipulation was limited to allowing the evidence taken at the removalhearing to be used in determining whether respondent was guilty of neglect and did not in anyway suggest that, by stipulating, respondent had admitted to any of the allegations contained inthe petition.
We have reviewed respondent's remaining contentions, including his claim that he wasdenied the effective assistance of counsel, and find them to be lacking in merit.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The original violation petitionwas filed in June 2007 and was later withdrawn.