Opinion
May 10, 1999
Appeal from Order of Erie County Family Court, Townsend, J. — Placement.
PRESENT: DENMAN, P. J., GREEN, HAYES, WISNER AND CALLAHAN, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Respondent appeals from two orders of Family Court dated December 24, 1997. The first is an order of protection prohibiting respondent from inflicting any corporal punishment on her two children or committing any criminal acts against them. The second extends the placement of the children in the custody of petitioner for 12 months and directs respondent to observe the conditions of behavior specified in the order of protection. The order incorporates by reference the court's decision, which provides in part that respondent is prohibited from "engaging in offensive conduct, specifically excessive corporal punishment or excessive exercise".
Respondent's four children, including the two who are the subject of these appeals (Curtis and Vance), were removed from the household in early 1996 because of allegations of physical abuse. After the court found that the children were neglected ( see generally, Matter of Brandiwell K., 247 A.D.2d 931), a dispositional hearing was scheduled, but respondent waived her right to a hearing and agreed to a 12-month placement of the children with petitioner, subject to extension upon petition to the court, with supervised visitation. Respondent also agreed to the issuance of an order of protection.
That order was due to expire in December 1997. In September 1997 petitioner filed a petition for extension of supervision, having returned Curtis and Vance to respondent and the children's stepfather, Vance B., on July 30, 1997. According to a report prepared by a Senior Caseworker, respondent and Vance B. had "successfully completed all court ordered services including substance abuse evaluations, domestic violence counseling, and a parenting program. In addition, they remain engaged in family counseling at Child Family Services and have cooperated with preventive services".
At a court appearance on the extension petition, the court expressed its concern that the two children had been returned home and ordered an investigation by a social worker. As a result of that investigation, the court concluded that the two children should be removed immediately from the home and returned to the custody of petitioner. A hearing was held forthwith at which two witnesses for petitioner testified that respondent had successfully completed the mandated programs that were part of her child services plan. The social worker testified, however, that his investigation revealed that Vance B. was imposing excessive corporal punishment on Curtis, who was then seven years old. Specifically, the social worker testified that Curtis was made to do an excessive number of pushups as punishment, as much as 200 at a time. Curtis told the social worker, however, that the pushups were "fun", and Curtis did not exhibit any signs of physical injury or trauma. There was no indication of how often Curtis was made to do pushups. Vance B. admitted that Curtis did pushups as part of an exercise regimen and testified that Curtis was not made to do more than 50 pushups at a time.
The court concluded that respondent and Vance B. had not "gained sufficient insight into their actions and the risk to their children as a result thereof, and that the return of Curtis and Vance was premature". In its written decision, the court prohibited respondent and Vance B. "from engaging in offensive conduct specifically excessive corporal punishment or excessive exercise". In its order, the court placed the children in the custody of petitioner for 12 months.
We reject respondent's contention that the court was required to conduct a hearing pursuant to Family Court Act §§ 1027 or 1028. Section 1027 involves "any case involving abuse or * * * where the child has been removed without court order" (Family Ct Act § 1027 [a]). Here, the children had been removed in 1996 and a hearing was conducted on that removal. Section 1028 also does not apply because it concerns an application for the return of a child by a parent or other person legally responsible for the care of the child. Rather, the court properly concluded that the hearing that was held was pursuant to Family Court Act § 1055, which concerns the extension of placement.
The evidence adduced at the hearing is sufficient to support an extension of supervision. The witnesses for petitioner agreed that respondent was in need of additional counseling, and thus the court should have granted the petition insofar as it requested an extension of supervision. The court erred, however, in removing the children and extending their placement with petitioner. The court also erred in directing respondent to refrain from imposing "excessive exercise" on the children.
Witnesses for petitioner testified that respondent complied with the child services plan and that the "conditions and circumstances giving rise to the order of placement" had improved since issuance of the order (Family Ct Act § 1055 [b] [iv] [A] [1]; see, Family Ct Act § 1055 [b] [iv] [A] [2]). There was no evidence that the extension of placement was "consistent with the permanency goal established for the child in the child services plan" (Family Ct Act § 1055 [b] [iv] [B] [1]) or that the children would be at risk of abuse or neglect if returned to respondent ( see, Family Ct Act § 1055 [b] [iv] [B] [2]). We note that there was no proof that the children were abused or neglected in the several month period after they had been returned to respondent and before they were removed again by the court. We view the language in the decision prohibiting the imposition of "excessive exercise" as vague and unenforceable. To the extent that physical discipline constitutes abuse or neglect, petitioner may seek removal under the appropriate statutory process.
Thus, we modify the order by deleting the direction incorporated by reference in the order that respondent refrain from imposing "excessive exercise" on the children, vacating the extension of placement of the children with petitioner and granting the petition insofar as it seeks an extension of supervision for 12 months. We note that the 12-month period has expired.