| Matter of Jatie P. (Joseph Q.) |
| 2011 NY Slip Op 07537 [88 AD3d 1178] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jatie P., a Neglected Child. Franklin CountyDepartment of Social Services, Respondent; Joseph Q., Appellant. (And Another RelatedProceeding.) |
—[*1] Jonathan C. Wool, Franklin County Department of Social Services, Malone, for respondent. Joseph A. Nalli, Fort Plain, attorney for the child.
Egan Jr., J. Appeals (1) from an order of the Supreme Court (Main Jr., J.), entered June 28,2010 in Franklin County, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to revoke respondent's suspended sentence of incarceration, and (2)from an order of said court, entered June 28, 2010 in Franklin County, which granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 10, to hold respondent in willfulviolation of a prior order.
Respondent is the biological father of Jatie P. (born in 2007). In February 2009, Jatie wasadjudicated to be a neglected child, and respondent was placed under petitioner's supervision fora period of 12 months and ordered to, among other things, ensure that any visitations between[*2]Jatie and her mother were supervised by individuals who hadbeen approved by petitioner.[FN1] An order of protection—prohibiting respondent from having any contact with Jatie'smother in the presence of the child and reiterating the requirement that visitations between thechild and her mother be supervised—also was issued. Thereafter, in October 2009,respondent admitted that he willfully violated the foregoing directives regarding the child'scontact with the mother, and a 30-day suspended sentence was imposed.
Two months later, after purportedly failing to locate anyone else to care for Jatie, respondentleft the child in the care of her mother and the mother's then boyfriend while he sought treatmentat a local emergency room. Upon returning from the hospital, respondent deemed himself unableto care for Jatie and permitted the mother and the boyfriend to take the child to the mother'sresidence for the weekend. Respondent subsequently reported his actions to petitioner and, inresponse, petitioner commenced various proceedings seeking, insofar as is relevant to this appeal,to hold respondent in contempt for violating the order of protection and to lift the previouslyimposed suspended sentence. Following removal from Family Court to the Integrated DomesticViolence part of Supreme Court, a hearing was held, at the conclusion of which Supreme Courtfound respondent to be in willful violation of a prior court order, granted petitioner's applicationto lift the suspended sentence and ordered respondent to serve a total of 120 days in the localjail.[FN2] These appeals by respondent ensued.
Preliminarily, inasmuch as respondent has served his jail term, his challenge to the severityof the sentence imposed is moot (seeMatter of Destiny F. [Angela F.], 85 AD3d 1229, 1229 [2011], lv dismissed 17NY3d 854 [2011]). However, in light of the "enduring consequences [that] potentially flow froma finding that [he] failed to abide by a prior court order" (id. [internal quotation marksand citations omitted]), the balance of respondent's respective appeals is properly before us(see Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter of Loomis v Yu-Jen G., 81AD3d 1083, 1084 [2011]; Matter ofTelsa Z. [Rickey Z.], 75 AD3d 776, 777 n [2010]).
Turning to the merits, petitioner was required to establish, by clear and convincing evidence(see Matter of Blaize F., 48 AD3d1007, 1008 [2008]; Matter ofAurelia v Aurelia, 56 AD3d 963, 964 [2008]), that respondent willfully violated theterms of the order of protection by allowing unsupervised contact between the child and themother (see Matter of Seacord vSeacord, 81 AD3d 1101, 1102 [2011]; Matter of Shelby B., 55 AD3d 986, 987 [2008]). In this regard,respondent does not dispute that he understood the terms of the order of protection or that heindeed violated the order by permitting the mother to have unsupervised visitation with the childon the weekend in question. Rather, respondent contends that because he was confronted with amedical emergency and made every effort to otherwise secure appropriate childcare for hisdaughter, Supreme Court erred in concluding that his violation of the order was willful. We donot agree.[*3]
Even assuming, for the sake of argument, thatrespondent's diagnosed sinusitis, gastroesophageal reflux disease and severe anxiety/panicdisorder warranted a trip to the emergency room on the evening of Friday, December 4, 2009and, further, that he could not locate any suitable childcare providers or approved visitationsupervisors at that time, he has not offered any persuasive explanation for his failure to makealternative (and appropriate) arrangements for the child's care the following morning. Aspetitioner and the attorney for the child aptly observe, respondent continued to allow the motherto have unsupervised contact with the child until the evening of Sunday, December 6,2009—long after the allegedly emergent circumstances had passed. Under thesecircumstances, and in light of respondent's failure to articulate a rational explanation for failingto simply take the child to the hospital with him in the first instance, we have no quarrel withSupreme Court's conclusion that he willfully violated the terms of the underlying order ofprotection (see Matter of NicoletteI., 56 AD3d 1080, 1081 [2008]). Respondent's remaining contentions, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: In a related proceeding,respondent apparently was awarded sole legal and physical custody of the child.
Footnote 2: Supreme Court ordered thatrespondent serve the previously imposed 30-day sentence consecutively to the 90-day sentenceimposed for the willful violation.