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ADMINISTRATION FOR CHILDREN’S SERVICES PROPERLY HELD IN CIVIL CONTEMPT FOR FAILING TO COMPLY WITH AN ORDER TO PLACE THE CHILD IN TRADITIONAL FOSTER CARE (SECOND DEPT).

The Second Department, modifying Family Court, determined the petitioner (Administration for Children’s Services) was properly held in civil contempt upon the motion of the attorney for the child for failure to comply with the court order to place the child in a traditional foster home. However, the Second Department deemed the imposition of a fine of $250 per day inappropriate:

“‘A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court'” … . Upon a finding of civil contempt, “‘Judiciary Law § 773 . . . provides for two types of awards: one where actual damage has resulted from the contemptuous act in which case an award sufficient to indemnify the aggrieved party is imposed, and one where the complainant’s rights have been prejudiced but an actual loss or injury is incapable of being established'” … . “In the second situation, the fine is limited to $250, plus the complainant’s costs and expenses” … . By contrast, “where there is actual loss or injury the statute does not provide for a general $250 fine, single or multiple. It calls instead for an assessment that will indemnify aggrieved parties” … .

Here, the Family Court correctly determined that the child had suffered actual injury as a result of the contemptuous act. * * *

* * * [T]he court should have imposed a “reasonably certain compensatory fine” that is “properly related to the scope of the injury” … .

… “‘Accordingly, ‘[a]ny penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both'” … . Under these circumstances, where the Family Court specifically invoked the petitioner’s “inconsisten[cy] and carelessness,” the fine of $250 per day of noncompliance appears to represent an improper attempt to punish the contemnor rather than compensate the injured party … . Matter of Emily M. (Joyce G.), 2026 NY Slip Op 00377, Second Dept 1-28-26

Practice Point: Here the Administration for Children’s Services, upon the motion of the attorney for the child, was held in civil contempt for failing to comply with an order to place the child in traditional foster care.

 

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