In re David J. , 613 N.Y.S.2d 729 ( 1994 )

Yesawich Jr., J.

Appeal from an order of the Family Court of Schenectady County (Dawson, J.), entered January 20, 1993, which, inter alia, granted respondents’ applications, in two proceedings pursuant to Family Court Act article 10, for an order directing petitioner to return their children to them.

Having received reports that respondents were not providing proper care for children in their household, David (age nine), Candice (age four), and Christine (age two), petitioner commenced these two proceedings to adjudicate the children neglected. Following respondents’ failure to appear for a scheduled court appearance, and being apprised that the family had moved to Montana, Family Court ordered the children temporarily removed from respondents’ custody. Petitioner brought the children back to New York and placed them in foster care. Respondents, having also come back to this State, applied pursuant to Family Court Act § 1028 to have the children returned to them. After a hearing, Family Court granted respondents’ applications and ordered the children returned, subject to the terms of temporary orders of supervision and protection, which, inter alia, required respondents to grant petitioner access to their home and meet with petitioner’s caseworkers, and prohibited removal of the children from the Capital District area without petitioner’s prior consent. Petitioner appeals Family Court’s order, which has been stayed pending this appeal.

To the extent relevant here, Family Court Act § 1028 provides that upon application of a parent, children that have been temporarily removed from the parents’ custody are to be returned, unless doing so would create "an imminent risk to the child’s life or health” (Family Ct Act § 1028; see, Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1028, at 334). Consequently, to defeat respondents’ applications, petitioner must demonstrate that respondents are likely to act in a manner which runs counter to the children’s best interests, and also that there is some possibility that respondents’ conduct will endanger the children in the immediate future. The children’s long-term needs are not an issue, for they will necessarily be addressed when the merits of the underlying neglect petitions are examined.

Much of the proof presented by petitioner, and relied upon by the dissent, while certainly providing some indication of respondents’ overall parenting ability and judgment, does not bear on the issue at hand. While the behavior of respondent Steven K. may be "bizarre and rigidly controlling”—he admits being a very protective parent—Family Court found, and we agree, that playing games in which Candice is harnessed, punishing David (who respondents testified had a behavior problem) by keeping him in his room "a little bit too much” or even for "the majority of the day”, and brushing Christine’s teeth at midnight simply do not pose an imminent risk to the children’s lives or health. Even if fully credited, these allegations would not warrant denial of respondents’ application. The problem with David’s schooling appears to be temporary inasmuch as his mother, respondent Roslyn K. who expressed anguished impotence about the manner in which the school authorities dealt with her son, testified that she does not want to keep him out of school but merely to resolve her difficulties with the administration, and in any event poses no immediate risk to his well-being.

And as for the admission by Steven K. to a single episode of violence directed at David more than a year prior to the hearing, that incident was satisfactorily explained as having been an accident which occurred when he attempted to lift David over a shopping cart. The record evidence simply does not mandate a finding that either respondent is likely to subject any of the children to violence or excessive corporal punishment (compare, Matter of Jennifer G., 105 AD2d 701, 702; Matter of Bobby M., 103 AD2d 777, 778).

Although the dissenters find some of respondents’ testimony "inherently unbelievable”, we are of the view that the findings of Family Court, which, it should be noted, made a special point of declaring at the outset of its decision that it had "a unique opportunity to evaluate the demeanor and credibility of each witness”, should be accorded due deference (see, e.g., Matter of Swift v Swift, 162 AD2d 784, 785). If this principle is to be treated as something more than a mere platitude, surely this is a case in which it should be implemented.

Where, as here, the evidence found in the written record is plainly subject to differing interpretations—notably, there was no testimony or other evidence presented that would establish that David was a "target child”, and given the assertion that he had a history of inappropriately touching his sisters, his different treatment may well have been warranted—the observations of the nisi prius court take on singular significance. Admittedly, this is a close case, but after carefully reviewing the record, we are unable to say that Family Court erred in finding respondents’ testimony more credible than that of petitioner’s representative—much of which was hearsay repetition of statements made by David, who was not averse to telling untruths on occasion—or in finding respondents’ explanations of the "shopping cart incident”, and their reasons for carefully monitoring and limiting David’s contact with the young girls, believable and reasonable.

Finally, we think the dissent places undue emphasis on the possibility that respondents may again leave the State. Although this is a matter of some concern, it is worth noting that respondents testified that at the time the family moved to Montana they did not believe such a relocation was prohibited by the court order then in effect, which required only that petitioner be notified of any change in residence, and that they intended to give such notice as soon as the family had acquired an apartment. Viewed from this perspective, respondents’ conduct furnishes no basis for assuming that they are likely to defy an order explicitly prohibiting any relocation outside the Capital District area made without petitioner’s prior consent.

The only evidence tending to substantiate the presence of an imminent risk to the children’s health consists of respondents’ asserted failure to properly treat Candice’s "lazy eye” and in not having Christine’s carious teeth, apparently the product of "bottle rot”, extracted. Although a parent’s failure to follow a prescribed course of medical treatment can place a child at sufficient risk to require denial of an application brought under Family Court Act § 1028 (see, Matter of Richard W., 174 AD2d 821, 823), petitioner has not shown that respondents’ lack of diligence in procuring new glasses for Candice or dental treatment for Christine creates an imminent risk to the children’s health. Indeed, the family physician caring for Candice observed that respondents "take good care of the children”. Given respondents’ avowed intention to obtain proper glasses for Candice and dental care for Christine, we cannot say that Family Court erred in finding that returning the children to respondents’ care will not place the children in imminent danger. Whatever uncertainty we have about this outcome is dispelled by the fact that the temporary orders of supervision and protection issued by Family Court will provide adequate protection for the children until disposition of the neglect petitions (see, Family Ct Act § 1028).

Mercure and Crew III, JJ., concur.