| Matter of Duane H. v Tina J. |
| 2009 NY Slip Op 07533 [66 AD3d 1148] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Duane H., Respondent, v Tina J., Appellant, andClinton County Department of Social Services, Respondent. |
—[*1] Edward D. Meyer, Plattsburgh, for Duane H., respondent. Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, for ClintonCounty Department of Social Services, respondent. Omshanti Parnes, Law Guardian, Plattsburgh.
Mercure, J.P. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered May 27, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10, to hold respondent Tina J. in willful violation of a prior order of protection.
Petitioner (hereinafter the father) and respondent Tina J. (hereinafter the mother) are theparents of the subject child (born in 1993). In a separate neglect proceeding against the father,Family Court placed the child in the custody of respondent Clinton County Department of SocialServices (hereinafter DSS) and issued orders of protection directing the mother to refrain fromcommunicating with and to stay 1,000 feet away from the child (see Matter of Samantha H., 52 AD3d894 [2008]). Thereafter, the father commenced this proceeding alleging that the mother[*2]had violated the most recent order of protection by mailing apicture with a message on the back to the child. Following a hearing, Family Court found thatthe mother had willfully violated the order of protection and imposed a sanction of 60 days injail. The mother appeals, and we now affirm.
We reject the mother's argument that the record does not support a finding that the violationof the order of protection was willful. "[T]he proper standard for establishing a willful violationof a Family Court order is clear and convincing evidence" (Matter of Blaize F., 48 AD3d 1007, 1008 [2008]; see Matter of Shelby B., 55 AD3d986, 987 [2008]). It is undisputed that the mother requested that her attorney and a DSSrepresentative give the photograph and handwritten message to the child and that, after theirrefusal, the photograph and message were sent through the mail from the mother's residence.While the child's sister-in-law—who resided with the mother and was listed as the senderon the envelope—testified that she sent the letter and picture despite the mother'sinstructions to the contrary, Family Court rejected the testimony of both the mother and thesister-in-law as lacking credibility. According deference to that credibility determination, as wemust, we conclude that petitioner established by clear and convincing evidence that the motherwillfully violated the relevant order of protection (see Matter of Blaize F., 48 AD3d at1009; see also Matter of NicoletteI., 56 AD3d 1080, 1081 [2008]; Matter of Shelby B., 55 AD3d at 988).
Finally, inasmuch as the mother has served the 60-day period of incarceration imposed uponthe willful violation, her challenge to the sentence as unduly harsh is moot (see Matter of Casey D., 24 AD3d1046, 1047 [2005]; Matter of Ashley M., 256 AD2d 825, 826 [1998]). The mother'sremaining arguments are either unpreserved or lacking in merit.
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.