| Matter of Telsa Z. (Rickey Z.) |
| 2010 NY Slip Op 06016 [75 AD3d 776] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Telsa Z., and Another, Abused and NeglectedChildren. Clinton County Department of Social Services, Respondent; Rickey Z., Appellant.(And Another Related Proceeding.) |
—[*1] Michael J. Hartnett, Clinton County Department of Social Services, Plattsburgh, forrespondent. Cheryl Maxwell, Plattsburgh, attorney for the children.
Spain, J. Appeals from two orders of the Family Court of Clinton County (Lawliss, J.),entered April 21, 2009, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to hold respondent in willful violation of a prior order of protection.
Respondent and Denise Z. are the parents of two daughters, born in 2000 and 2001.Previously, this Court affirmed a determination of Family Court that respondent had abused andneglected his daughters, based upon evidence that he repeatedly sexually abused the olderdaughter (Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246 [2010]). We also upheld Family Court'sdispositional order which precluded respondent from having visitation with the daughters, andthe issuance of a final order of protection against respondent. More recently, as to respondent,we affirmed an order of Family Court which continued placement of the children with petitioner,continued the no visitation order, and modified the permanency plan to allow the filing of apetition for the [*2]termination of respondent's parental rights(Matter of Telsa Z. [Rickey Z.], 74 AD3d 1434 [2010]).
Respondent now challenges determinations by Family Court, on two petitions filed pursuantto Family Ct Act article 10, that he willfully violated a November 3, 2008 temporary order ofprotection (hereinafter the order), which directed him to stay at least 1,000 feet away from thechildren and their home and to refrain from any communication with them. Specifically, inJanuary 2009, petitioner filed a petition (the first petition) alleging that on January 16, 2009,respondent had willfully violated the order by twice driving by the trailer home where thechildren resided with their mother, coming within 1,000 feet. In February 2009, petitioner filedanother petition (the second petition) alleging that respondent had willfully violated the order inDecember 2008 by going to the trailer adjacent to the children's home, coming within 1,000 feetof them. After a hearing, Family Court concluded that respondent had willfully violated the orderas alleged in each petition, and imposed a sanction of six months in jail.[FN*]On respondent's appeals, we affirm.
Family Court correctly concluded that petitioner met its burden of proving, by clear andconvincing evidence, that respondent had willfully violated the order as alleged in the petitions(see Matter of Blaize F., 48 AD3d1007, 1008 [2008]). With regard to the first petition, respondent admitted driving twice bythe children's home, aware of the order's prohibition. The only contested factual issue was theprecise distance between the road and the children's home, which respondent himself estimatedto be only 150 feet. Dawn Favreau, a preventative services caseworker, testified that she sawrespondent drive by the home, and that the distance between the road and their home wasapproximately 100 feet. When confronted, respondent claimed to be looking for a junkyard tobuy a tire for his car. The court found Favreau to be a credible witness and, deferring to thatdetermination, we find that her testimony, coupled with respondent's admission, provided therequisite proof of a willful violation (see Matter of Yette v Yette, 39 AD3d 952, 953 [2007], lvdenied 9 NY3d 802 [2007]).
As for the second petition, Tamara Sutin, another caseworker, testified that during a meetingwith respondent on February 12, 2009, he told her that he had been in contact with the childrenin December 2008. He told Sutin that he had brought groceries for them to the trailer adjacent tothe children's home, and the children saw him and came over; he gave them soda and sent themhome. Sutin, whose testimony Family Court credited, was certain of the month, which hercaseworker notes corroborated. Favreau estimated that the distance between the trailers wasapproximately 150 feet; respondent conceded it was 200 to 300 feet. While respondent, aneighbor and Denise Z. all testified that this contact occurred in October 2008 (before the orderwas issued), their accounts were not entirely consistent. Further, the truthfulness of respondentand Denise Z.'s account was called into doubt in that they testified that they had not seen oneanother since January 2009, which was refuted by Favreau's rebuttal testimony that she had seenthem together several times in the 10 days before the March 2006 hearing. Giving deference toFamily Court's credibility assessments, the court's factual conclusion that the incident occurred,as alleged, in December 2008, and that it constituted a willful violation of the order is fullysupported.[*3]
Respondent's contention, raised for the first time onappeal, that petitioner should have been required to prove his willful violations with proofbeyond a reasonable doubt, relying upon Matter of Rubackin v Rubackin (62 AD3d 11 [2009]), isunpreserved for our review.
Cardona, P.J., Peters, McCarthy and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote *: Given the enduringconsequences from the finding of willful violations of Family Court orders, the issues raised arenot rendered academic because the jail sentence has been served (see Matter of Bickwid vDeutsch, 87 NY2d 862, 863 [1995]).