In re Brittany T.
Respondents subsequently consented to the entry of a finding of neglect as well as an order of supervision dated August 4, 2003,1 which required them to abide by certain enumerated terms and conditions, all of which were designed to facilitate improvement in the child‘s dietary patterns while at the same time аddressing her immediate health and educational needs. After the order had been in force for three months, Family Court conducted a review of the child‘s condition and, upon finding that there had been little or no improvement in her physical condition, removed the child, with respondents’ consent, to foster care in a kinship program where she was placed with her maternal aunt. The child was subsequently returned to her parents’ care in April 2004.
Six months later, petitioner filed a petition alleging that respondents had violated a number of the conditions contained in the order of supervision with the result that the child was returned to petitioner‘s care, where she remained until September 2005.2 During this time, the child‘s weight stabilized and actually decreased by 14 pounds to 238 pounds. She was subsequently returned to respondents and, after six months in their care, her weight increased approximately 23 pounds. Thereafter, petitioner commenced this proceeding in March 2006 alleging that respondents, by the quality of carе they rendered their child and, in particular, their failure to effectively address her dietary needs and ensure her attendance in school, willfully violated certain conditions contained in the order of supervision and sought removal of the child to petitioner‘s care.
First, we note that respondents’ challenge to the initial finding of neglect entered against them is not properly before us. That finding was entered with their consent and they failed to make a timely application in Family Court to vacate that order (see Matter of Cheyenne QQ., 37 AD3d 977, 978 [2007]; Matter of Forbus v Stolfi, 300 AD2d 852, 852 [2002], appeal and lv dismissed 99 NY2d 642 [2003]; see also Matter of Fantasia Y., 45 AD3d 1215 [2007]). We do, however, find merit in respondents’ claim that petitioner failed to establish at the hearing that they willfully violated any term or condition contained in the order of supervision and, as such, we now reverse.
A finding that a violation of such an order is willful carries with it as a potential penalty a six-month jail sentence (see
Term 18 of the order of supervision required that “[r]espondent(s) shall sign all releases of information for themselves and the child requested by [petitioner] in order that [petitioner] may monitor the [r]espondent[s‘] progress and attendance in all programs to which thеy are referred.” The petition alleged that this term was violated when the mother refused to provide petitioner with a release for information regarding her emergency room hospitalization for a cardiac episode that occurred in March 2006. Petitioner sought information regarding the
Term 21 requires that respondents “cooperate with [petitioner] and all programs to which they are referred.” Specifically, it is alleged by petitioner that on four separate occasions occurring over a three-week period, each parent used inappropriate language when speaking with their caseworker either during a telephone call or a home visit. Each resulted in apologies being tendered by the parent shortly after the incident had occurred and none of the incidents, it is alleged, interfered in any meaningful way with the service being rendered or the child‘s participation in a recommended program. Given the circumstances—six months of direct supervision by petitioner in the сare provided their child—some level of frustration, while regrettable, is understandable and does not amount to a demonstration of a deliberate or willful indifference to respondents’ obligations under this order (see Matter of Rachel A., 278 AD2d 528 [2000], lv dismissed 96 NY2d 854 [2001]; Matter of Jesse DD., 223 AD2d 929, 930-931 [1996], lv denied 88 NY2d 803 [1996]).
Term 22 of the order required respondents to “usе all resources available to ensure the mental, physical and emotional well-being of the child,” while term 27 required them to enroll the child, at their own cost, in a local gym and ensure that the child attended the gym at least two to three times each week.3 Petitiоner alleged that the child‘s attendance at the fitness center selected by respondents during the 31 weeks in question was at best sporadic and did not satisfy their obligations under this order. However, records kept at the fitness center—which were produced during the heаring—establish that the child attended the gym on at least one day per week for 27 of the 31
Term 23 of the order provides: “Respondent[s] shall take all actions necessary to ensure that [their child] . . . attend school regularly and complete all homework assignments. The [respondents] shall communicate and cooperate with the [сhild‘s] school to ensure the [child] [is] in an appropriate classroom setting. The [r]espondent[s] shall account for all absences or tardies with a note personally provided by [respondents] to the appropriate school official. Absences of three or more days in succession shall be accounted for by a note from a health care provider personally provided by the [r]espondent[s] to the appropriate school official.” Petitioner alleged that the child, from September 14, 2005 through April 6, 2006, missed 18 days and was tardy on 25 separate occasions. However, school officials confirm that each absence during this period was excused, that the majority of them were for appointments involving services, all of which were court ordered, and that, with the exception of absences for medical appointments and family counseling services, the child had a good attendance record for the school year. In addition, not only did respondents contact the school whenever the child was absent to secure her school assignments, but the records reveal that she received passing grades in all of her subjects during this period and that, for at least part of that school year, she qualified for placement on the school honor roll. This еvidence is certainly at odds with any claim that respondents engaged in conduct which constituted a “continuous, willful and unjustifiable refusal” to comply with the terms of this order (Matter of Rachel A., 278 AD2d at 529).
Petitioner lastly alleged that respondents violated term 26 of the order which required that they partiсipate with the child in a nutrition program, attend its meetings and utilize the skills and techniques taught in the program to address their child‘s obesity, as well as her nutritional needs. Petitioner claims that the increase in the child‘s weight during this period establishes that respondents allowed her to сonsume foods which were not
While we recognize and share petitioner‘s concern for the child‘s health and well-being and are not unmindful of the fact that her weight and dietary habits while in respondents’ care had not been, to say the least, ideal,4 we cannot conclude that petitioner has demonstrated by clear and convincing evidence that resрondents exhibited a “continuous, willful and unjustifiable refusal to accept petitioner‘s recommendation[s]” (Matter of Rachel A., 278 AD2d at 529) or demonstrated an unwillingness to comply with the terms of the order (see Matter of Linda FF., 301 AD2d at 888-890 [2003]). The state of the record constrains us to conclude that Family Court erred by finding that resрondents willfully violated the order of supervision.
As a result of our finding, we need not address respondents’ remaining arguments.
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur.
Ordered that the order is reversed, on the law, without costs, and petition dismissed.