Matter of Emily M. (Joyce G.)

Summary

The Appellate Division, Second Department reversed an order imposing a $250-per-day civil contempt fine totaling $48,750 against the Administration for Children's Services for failing to place a child in a traditional foster home. The court held that actual injury was established, but the fine was improperly based on the statutory maximum for unprovable damages and appeared punitive rather than reasonably related to the injury. The matter was remitted to the Family Court, Kings County, for a new determination of the compensatory fine.

Holdings

1. The Family Court correctly determined that the child suffered actual injury as a result of the contemptuous failure to comply with the placement order; the evidence of actual injury was not unduly conjectural.
2. The agency's contention that the Family Court improperly considered hearsay testimony about the child's injuries was unpreserved because the agency did not object to admission of the testimony during the contempt hearing.
3. The Family Court improperly imposed a $250-per-day fine based on the statutory maximum for unprovable damages. When actual losses are shown to be actual and reasonably ascertainable, the court must impose a reasonably certain compensatory fine properly related to the scope of the injury.

Questions Presented

1. Whether the evidence sufficiently established that the child suffered actual injury from the agency's contemptuous failure to comply with the placement order.
2. Whether the Family Court properly considered hearsay testimony about the child's injuries when the agency did not object at the contempt hearing.
3. Whether the Family Court properly imposed a $250-per-day fine based on the agency's noncompliance after finding that the child suffered actual and ascertainable injury.

Disposition

reversed_and_remanded