| Matter of Andrew L. |
| 2009 NY Slip Op 05706 [64 AD3d 915] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Andrew L. and Others, Children Alleged to beNeglected. Clinton County Department of Social Services, Respondent; Cassi M., Appellant, etal., Respondent. (And Three Other Related Proceedings.) |
—[*1] Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, forrespondent. Karen L. Kimball, Law Guardian, Wynantskill.
Lahtinen, J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.),entered March 24, 2008, which, in a proceeding pursuant to Family Ct Act article 10, grantedpetitioner's motion to hold respondent Cassi M. in violation of prior court orders, and (2) fromfour orders of said court, entered May 5, 2008 and May 6, 2008 which, among other things,granted petitioner's applications, in three proceedings pursuant to Family Ct Act article 10-A, tomodify the subject children's permanency plans to free them for adoption.
Respondent Cassi M. (hereinafter the mother) is the mother of a son (born in early 1998) andtwo daughters (one born in late 1998 and the other born in early 2000). After the children'sparents separated in 2000, numerous court proceedings ensued, including, as relevant [*2]here, a consent order awarding the mother custody in August 2002and, in April 2003, a consent order permitting her to move to Connecticut with the children. In2005, custody was switched to the father and, in early 2006, petitioner filed a neglect petitionagainst the mother setting forth numerous instances of neglect between 2002 and 2004.Following a fact-finding hearing in March 2006, Family Court found that all three children hadbeen neglected by the mother. They were continued in the father's custody under the supervisionof petitioner with the mother being permitted to have monthly supervised visits. In May 2006,the mother sought and was granted modification to decrease visitation to once every four monthssince she was moving to Florida with her new husband.
In April 2007, a neglect petition was filed against the father and the children were removedand placed in foster care. The father was found to have neglected the children, resulting in thechildren being placed with petitioner and thereafter they continued in foster care. In October2007, the father signed judicial surrenders with respect to all three children. In November 2007,Family Court issued a protective order and permanency hearing orders as to the children whichdirected, among other things, that the mother attend weekly parenting classes in Clinton County.Petitioner filed a violation petition in December 2007 alleging that the mother had failed tocomply with the terms of the November 2007 orders and, following a hearing, Family Courtissued an order in March 2008 finding a willful violation and imposing 15 days in jail as asanction. A further permanency hearing was held in April 2008, resulting in Family Courtissuing orders in May 2008 which modified the children's permanency plans to includeplacement for adoption. The mother appeals from the March 2008 violation order and the May2008 permanency hearing orders.
We find merit in the mother's argument that the determination of a willful violation wasimproper. Such a finding, which permits a sanction of up to six months in jail, "requires thatcompetent evidence be presented that establishes the willfulness of the violation by clear andconvincing evidence" (Matter ofBrittany T., 48 AD3d 995, 997 [2008]; see Matter of Shelby B., 55 AD3d 986, 987 [2008]). Willfulness isnot established where a respondent shows that the aspect of the order allegedly violatedimplicated a monetary expenditure beyond his or her financial resources (cf. Matter of George M., 48 AD3d926, 928-929 [2008] [finding limited financial resources not an excuse where violatedcondition had no monetary implications]; Matter of Mitchell v Rockhill, 45 AD3d 1140, 1141 [2007][inability to pay is a defense to an allegation of willful failure to pay a support order]). The factthat a respondent has served the sanction imposed by Family Court for a willful violation doesnot render the appeal academic (seeMatter of Er-Mei Y., 29 AD3d 1013, 1013-1014 [2006]).
Here, Family Court found the mother in willful violation for failing to travel once everyweek for a parenting class from Port St. Lucie, Florida to the City of Plattsburgh, ClintonCounty. Evidence from the violation hearing established that the mother has two young children(both of whom have medical issues) from her current marriage who resided with her in Floridaduring the relevant time. She also had a job there, and she and her husband had modest incomes.Petitioner would not fund the weekly travel for the mother between Florida and Plattsburgh.Indeed, it was stipulated at the hearing that she could not afford the cost of travel for the weeklyclass. She did make the trip once per month during the germane two-month time and attended theparenting class on each occasion. The option of providing the class via telephone or electroniccommunication or taking a similar class in Florida was not made available. And, in fact, shesubsequently took and completed a parenting class in Florida which one of petitioner's [*3]caseworkers characterized as similar to the one offered in ClintonCounty. In light of the significant financial burden imposed by the order with regard to travel,which it is undisputed the mother did not have the monetary means to meet, it was error to find awillful violation.
The mother also appeals from the May 2008 permanency hearing orders. Since the entry ofthose orders, the mother, who has now relocated to St. Albans, Vermont, surrendered herparental rights as to her son. With respect to the two daughters, there have been subsequentpermanency hearing orders and, in October 2008, the mother consented to findings of permanentneglect as to both girls with a concomitant suspended judgment until October 2009. Moreover,the most recent permanency plan orders, entered in December 2008, call for return of both of thegirls to the mother. In light of such circumstances, the issues asserted on appeal regarding theMay 2008 permanency hearing orders are now moot (see e.g. Matter of Haylee RR., 56 AD3d 968, 968 [2008]; Matter of Kim OO. v Broome CountyDept. of Social Servs., 44 AD3d 1164, 1165 [2007]; Matter of Lisa Z., 276AD2d 853, 853 [2000]).
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the appeal from the orderentered March 24, 2008 is reversed, on the law, without costs, and petition dismissed. Orderedthat the appeals from the orders entered May 5, 2008 and May 6, 2008 are dismissed, as moot,without costs.