| Matter of Ashley E. (Mark E.) |
| 2009 NY Slip Op 08907 [68 AD3d 1185] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ashley E. and Another, Children Alleged to beNeglected. Clinton County Department of Social Services, Respondent; Mark E.,Appellant. |
—[*1] Christine G. Peters, Department of Social Services, Plattsburgh, for respondent. Omshanti Parnes, Law Guardian, Plattsburgh. Heidi Dennis, Law Guardian, Plattsburgh.
Kavanagh, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered November 20, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to hold respondent in willful violation of prior orders of disposition andprotection.
Respondent is the father of three children, including Ashley E. (born in 1996) and Grace E.(born in 1993). In 2006, after respondent consented to the entry of a finding of neglect, hischildren were placed in petitioner's custody, but were later allowed to return to respondent'shome with the understanding that he abide by certain conditions incorporated in court orderstailored to monitor his use of alcohol and drugs. Two months after their return to his care, inFebruary 2008, a petition was filed alleging that respondent had willfully violated the terms andconditions of these orders by, among other things, failing to submit to scheduled tests to [*2]determine if he had consumed alcohol or drugs. After a hearing,Family Court found that respondent had, in fact, deliberately violated these orders and fined him$700. A permanency hearing was held after which, in July 2008, Family Court returned thechildren to respondent's care, but imposed conditions that barred him from consuming anyalcohol or illegal drugs and required him to submit to alcohol and drug testing and monitoring.Less than one month later, petitioner once again filed a petition claiming that respondent, oneight separate instances, had willfully violated the terms of the court's July 2008 orders ofdisposition and protection. After a hearing,[FN1]Family Court found that respondent had violated these orders on six occasions and that eachviolation was willful, and sentenced him to 90 days in jail. Respondent now appeals.
Initially, petitioner, as well as the Law Guardians for both children, argue that this appeal ismoot because respondent has served his 90-day jail sentence. We disagree. Respondent's parentalrights have not been terminated and, while the children now reside with his brother, respondentstill has the right to bring a proceeding that would allow him to regain their custody shouldfuture circumstances permit. If such a proceeding were brought, a finding that respondent haddeliberately violated a court order involving the placement of his children would be obviouslyrelevant and have adverse consequences for respondent's position in such a proceeding (see Matter of Andrew L., 64 AD3d915, 917 [2009]; Matter of Er-MeiY., 29 AD3d 1013, 1013 [2006]; see also Matter of Bickwid v Deutsch, 87NY2d 862, 863 [1995]).
As for the merits of respondent's appeal, we find that petitioner has failed to establish byclear and convincing evidence that respondent willfully violated any provision of Family Court'sorders (see Matter of Shelby B., 55AD3d 986, 987 [2008]; Matter ofBlaize F., 48 AD3d 1007, 1008 [2008]; Matter of Brittany T., 48 AD3d 995, 997 [2008]). In essence,respondent was charged with failing to appear as required for urinalysis examinations and withdeliberately attempting to sabotage the operation of the Secure Continuous Remote AlcoholMonitoring (hereinafter SCRAM) device that was installed in his home to monitor hisconsumption of alcohol. As for the SCRAM machine, it is a device that consists of a modemconnected to a phone line and an ankle bracelet that, when worn by a subject, transmits data tothe modem indicating whether the subject has consumed alcohol during a relevant time period.Each morning, respondent had been instructed to sit near the modem so that it could downloaddata from the bracelet and then transmit that data to petitioner through the phone line. When nodata was received by petitioner between July 9, 2008 and July 13, 2008, it filed a petitionalleging that respondent had deliberately failed to comply with its instructions regarding themachine's operation. Family Court, based on evidence presented at the hearing, found thatrespondent "failed to properly cooperate on each of the five occasions specified herein to allow adownload of the information on his SCRAM device and that those actions are in willful violationof this [c]ourt's orders."[FN2]While there is no doubt that the device failed to transmit any data to petitioner during the fivedays in question, it does not necessarily follow that respondent was responsible for this failure orthat he engaged in conduct that was deliberately designed to thwart the successful operation ofthis machine. Respondent testified that, as instructed, he wore the bracelet at all times, and thateach morning he positioned himself near the device so that data could be transmitted from theankle bracelet to the modem. Respondent testified, and petitioner's caseworker confirmed, thatwhen he first suspected that the machine may have malfunctioned, he had called the caseworker"several days in a row to say that it wasn't reading." In addition, when the modem was examinedby petitioner, it was able to download the information obtained from the ankle bracelet and thedata did not in any way indicate that respondent had consumed alcohol in violation of the court'sorders.
As for respondent's failing to report as required for a urinalysis examination on July 11,2008, the caseworker who scheduled the appointment did not categorically confirm in hertestimony that she actually spoke with respondent regarding this appointment and may havesimply left a message on his cellular telephone concerning the date the test was to be conducted.Respondent denied ever speaking with the caseworker regarding this appointment or receivingan instruction that he report for a test on July 11, 2008. He stated that when he learned that thecaseworker had called him, he returned her telephone call but never spoke to her and was nottold to report on this date for a urine test. Equally important, there is no dispute that respondentactually complied with other instructions he received regarding these tests, and did report asordered on July 8, 2008 and July 17, 2008.[FN3]As a result, we cannot conclude on this record that the evidence clearly and convincinglyestablished that respondent willfully violated any order he received requiring that he appear forsuch a test or examination.
Given this finding, we need not reach respondent's remaining arguments.
Peters, J.P., Rose, Kane and McCarthy, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and petition dismissed.
Footnote 1: We feel obligated to note thatwhen respondent failed to appear in court on the original date for this hearing, Family Courtinexplicably issued a warrant for his arrest even though no evidence was presented thatrespondent was ever served with the violation petition or notified as to the date for the hearing.In fact, all parties agreed that respondent had never been served with any notice regarding thisappearance.
Footnote 2: An allegation contained in thepetition that on July 13, 2008 respondent deliberately removed the SCRAM bracelet from his legwas found not to be supported by clear and convincing evidence and was dismissed.
Footnote 3: Each test was negative.