APPEAL by Robert Rubackin, in a family offense proceeding pursuant to Family Court Act article 8, from an order of the Family Court (William P. Warren, J.), dated July 30, 2007, and entered in Rockland County, which, after a hearing, found, by clear and convincing evidence, that he violated a temporary order of protection dated August 11, 2006, and committed him to a period of incarceration of 30 days.
The opinion of the court was delivered by: Angiolillo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and ARIEL E. BELEN, JJ.
The appeal in this family offense proceeding raises the question of what standard of proof is necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is a period of incarceration pursuant to Family Court Act § 846-a. It is appropriate to address this question notwithstanding the fact that the period of incarceration imposed on the appellant, Robert Rubackin, has expired, and thus, the appeal from that portion of the order must be dismissed. Although the period of the appellant's incarceration has expired, the appeal from so much of the order as found that he violated a temporary order of protection is not academic in light of the enduring consequences which may potentially flow from an adjudication that a party has been found to have violated an order of the Family Court (see Matter of Er-Mei Y., 29 AD3d 1013).
The provisions of Family Court Act article 8, governing family offense proceedings, do not specify the standard of proof that must be met in order to sustain a finding that an individual failed to obey a lawful order issued under that article. Family Court Act § 846-a refers to the remedial steps that may be taken when, after a hearing, "the court is satisfied by competent proof that the respondent has willfully failed to obey any such order." "Competent proof" references the nature and quality of the proof required, but it does not answer the question of what quantum of proof is required. The question of the proper standard of proof is complicated by the nature of the various remedies available to a Family Court judge upon finding that an individual has failed to obey a lawful order.
Most of the remedies provided for in Family Court Act § 846-a are clearly civil in nature. When those remedies are implemented, they assist in stopping the violence, ending family disruption, and providing protection to a party. Like the remedies that are clearly civil in nature, the imposition of a period of commitment to jail may have a certain coercive effect of compelling future compliance by an individual, but it is mainly punitive in nature, imposed to punish an individual for past disobedience.
We conclude that the standard of proof which must be met when the court commits an individual to a jail term is proof beyond a reasonable doubt that he or she willfully failed to obey a lawful order of the court. That same high standard is not applicable if one or more of the other available remedies under Family Court Act § 846-a is utilized and a jail term is not imposed.
Family Court Act § 812(2)(b) provides, in part: "[t]hat a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection."
Upon the filing of a petition alleging one or more family offenses, as specified in Family Court Act § 821, the court conducts a fact-finding hearing to determine whether the allegations of the petition are supported by a fair preponderance of the evidence (see Family Ct Act § 832). If the allegations of the petition are supported by a fair preponderance of the evidence, one of the actions the court may take at the conclusion of a dispositional hearing is to issue an order of protection (see Family Ct Act § 841[d]). Another is the placement of the respondent on probation for a period not exceeding one year (see Family Ct Act § 841[c]). Commitment to a period of incarceration, however, is not authorized under Family Court Act § 841 at that stage of the proceeding.
The Family Court in this case initially found, after a hearing, that the appellant had committed the family offense of harassment in the second degree. The court imposed a one-year period of probation and issued an order of protection. One of the conditions of the order of protection was that the appellant attend domestic violence classes for a period of one year. While that order of protection was in effect, a violation petition was filed by the Rockland County Department of Probation (hereinafter the Probation Department). Due to certain deficiencies in the Probation Department's proof on the issue of whether the appellant was discharged from the domestic violence classes for cause, that violation petition was not sustained. However, the court noted that it was undisputed that the appellant was not attending domestic violence classes. The Family Court issued another temporary order of protection dated August 11, 2006 (hereinafter the August 11 order of protection) and, subsequently, a permanent order of protection dated October 13, 2006, both of which required the appellant to register in and attend domestic violence classes.
A second violation petition was thereafter filed alleging that the appellant failed to attend a registration meeting for the program, failed to reschedule the registration meeting, and failed to attend domestic violence classes. A hearing was conducted on that violation petition. The testimony of two witnesses, a senior probation officer and an individual who was a court liaison with a volunteer counseling program, was offered to establish the appellant's willful noncompliance with the ...