Opinion
02-06-2015
In the Matter of BENTLEIGH O. Herkimer County Department of Social Services, Petitioner–Respondent; Jacqueline O., Respondent–Appellant, and Tina S., Respondent.
Tracy L. Pugliese, Clinton, for Respondent–Appellant. Jacquelyn M. Asnoe, Herkimer, for Petitioner–Respondent. Joseph M. Cirillo, Attorney for the Child, Mohawk.
Tracy L. Pugliese, Clinton, for Respondent–Appellant.
Jacquelyn M. Asnoe, Herkimer, for Petitioner–Respondent.
Joseph M. Cirillo, Attorney for the Child, Mohawk.
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Respondent mother appeals from an order adjudicating her child to be an abused and neglected child. After the child was hospitalized for, inter alia, multiple rib fractures, a partially collapsed lung, and eye and ear injuries, petitioner commenced this proceeding alleging that the mother was responsible for the injuries. At the fact-finding hearing, Family Court admitted in evidence, over the mother's objection, medical records from the child's treatment at two hospitals.
As petitioner and the Attorney for the Child concede, the court admitted the medical records in evidence without a proper certification as required by Family Court Act § 1046(a)(iv) (see Matter of Kadyn J. [Kelly M.H.], 109 A.D.3d 1158, 1159, 972 N.Y.S.2d 752 ; Matter of John QQ., 19 A.D.3d 754, 755–756, 796 N.Y.S.2d 432 ). That statute provides that, where certification of medical records is completed “by someone other than the head of the hospital [,] ... [it] shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital ... and by such other employee” (§ 1046 [a][iv] [emphasis added]; see John QQ., 19 A.D.3d at 755–756, 796 N.Y.S.2d 432 ). Here, the certification was not accompanied by the necessary delegation of authority and, thus, the court erred in admitting the medical records in evidence.
Under the circumstances, however, we deem the court's evidentiary error to be harmless (see Matter of Arianna M. [Brian M.], 105 A.D.3d 1401, 1401–1402, 963 N.Y.S.2d 895, lv. denied 21 N.Y.3d 862, 2013 WL 4516332 ; see generally Palmer v. Wright & Kremers, 62 A.D.2d 1170, 1171, 404 N.Y.S.2d 471 ). Even excluding the medical records from consideration, we conclude that the court's finding of abuse is supported by a preponderance of the evidence in the record (see Family Ct. Act § 1046[b][i] ; Arianna M., 105 A.D.3d at 1401, 963 N.Y.S.2d 895 ). The record contains detailed testimony from the two treating physicians who examined the child at each hospital and described the child's extensive injuries. Moreover, other testimony established that the mother twice forcibly squeezed the child's chest, which was consistent with the nonaccidental nature of the child's injuries (see Matter of Eric CC., 237 A.D.2d 655, 656–657, 653 N.Y.S.2d 983 ). Also, inasmuch as the mother declined to testify, “the court [was] permitted to draw the strongest possible negative inference” against her (Matter of Jasmine A., 18 A.D.3d 546, 548, 795 N.Y.S.2d 87 ; see Matter of Kennedie M. [Douglas M.], 89 A.D.3d 1544, 1545, 934 N.Y.S.2d 278, lv. denied 18 N.Y.3d 808, 2012 WL 539274 ).
Finally, we reject the mother's contention that she was denied effective assistance of counsel. “It is axiomatic that[,] because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings” (Matter of Kelsey R.K. [John J.K.], 113 A.D.3d 1139, 1140, 978 N.Y.S.2d 560, lv. denied 22 N.Y.3d 866, 2014 WL 1362321 [internal quotation marks omitted] ). Here, “the record establishes that, viewed in the totality of the proceedings, [the mother] received meaningful representation” (Matter of Jeffrey V., 82 N.Y.2d 121, 126, 603 N.Y.S.2d 800, 623 N.E.2d 1150 ; see Matter of Shannon F., 121 A.D.3d 1595, 1596, 994 N.Y.S.2d 227, lv. denied 24 N.Y.3d 913, 2015 WL 94671 [Jan. 8, 2015] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.