| Matter of Blaize F. |
| 2008 NY Slip Op 01672 [48 AD3d 1007] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Blaize F. and Others, Children Alleged to beAbused and/or Neglected. Clinton County Department of Social Services, Respondent;Christopher F., Appellant. |
—[*1] John Dee, Clinton County Department of Social Services, Plattsburgh, for respondent. G. Scott Walling, Law Guardian, Queensbury. Marsha K. Purdue, Law Guardian, Glens Falls.
Kane, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredJune 1, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 10, to hold respondent in willful violation of prior orders of disposition and protection.
In July 2006, Family Court found that respondent abused and neglected one of hisstepdaughters and neglected his son and another stepdaughter. The court issued an order ofdisposition and an order of protection, each requiring respondent to engage in sexual offendertreatment. In January 2007, petitioner filed a petition alleging that respondent violated bothorders by failing to participate in such treatment. At the conclusion of a hearing, the court foundthat respondent willfully violated the orders and sentenced him to 90 days incarceration. Onrespondent's appeal, we affirm.
Initially, we must address the proper burden of proof to establish a willful violation [*2]under Family Ct Act § 1072. The statute itself only mentions"competent proof." Competency refers to the admissibility of evidence, however, not to theburden of proof. This Court has previously used various phrases in enunciating the standard,including the burden as being simply "ample evidence" (Matter of Linda FF., 301 AD2d887, 889 [2003]), "competent and credible evidence" (Matter of Rachel A., 278 AD2d528, 529 [2000], lv dismissed 96 NY2d 854 [2001]), "a fair preponderance of theevidence" (Matter of Nikole B., 263 AD2d 622, 623 [1999]), and "clear and convincingevidence" (Matter of Elizabeth T., 299 AD2d 748, 750 [2002], lv dismissed 99NY2d 610 [2003]; Matter of Carella v Collins, 144 AD2d 78, 83-84 [1989]). Except forthe terms of punishment, the provisions of Judiciary Law § 753 apply here (seeFamily Ct Act § 156; but cf. Matter of Marquise EE., 257 AD2d 699, 701 [1999]).Based upon that statute, and considering the potential penalty of imprisonment here (seeFamily Ct Act § 1072 [b]), the proper standard for establishing a willful violation of aFamily Court order is clear and convincing evidence (see Lutz v Goldstone, 42 AD3d 561, 563 [2007]; Matter ofCarella v Collins, 144 AD2d at 83-84; Matter of Schmerer v McElroy, 105 AD2d840, 840-841 [1984]).
Petitioner met its burden of establishing a willful violation of the orders by clear andconvincing evidence. It is undisputed that respondent never attended sexual offender treatment.The only question was whether his failure to comply with that requirement was willful orwhether he was justified based upon his alleged financial inability to pay the attendance fees andarrange for transportation. We defer to Family Court's determination, after observing thewitnesses and their demeanor, that respondent's testimony was evasive and not credible (seeMatter of Marquise EE., 257 AD2d at 702). Accepting that credibility determination, therecord does not support respondent's position that he was unable to pay for treatment sessions ortransportation during the time period at issue. Respondent also failed to fully cooperate in effortsto apply for Medicaid, which could have paid for treatment. While he might have misunderstoodthat some additional sources of identification were required, he failed to supply financialinformation that was crucial to his application and qualification for benefits. Based upon the lackof proof regarding respondent's financial circumstances and his failure to complete the Medicaidapplication process the first time, record evidence supports the finding that he willfully violatedthe orders requiring him to engage in sexual offender treatment (see Matter of Tashia QQ., 28 AD3d816, 818 [2006]; Matter of Linda FF., 301 AD2d at 889).
Cardona, P.J., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.