Opinion
2012-12-20
In the Matter of COLIN R. and Others, Alleged to be Permanently Neglected Children. Chemung County Department of Social Services, Respondent; Marsha R., Appellant. (And Another Related Proceeding.)
Abbie Goldbas, Utica, for appellant. David A. Kagle, Chemung County Department of Social Services, Elmira, for respondent.
Abbie Goldbas, Utica, for appellant.David A. Kagle, Chemung County Department of Social Services, Elmira, for respondent.
Emily Karr–Cook, Elmira, attorney for the children.
Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and , JJ.
, J.
Appeal from an order of the Family Court of Chemung County (Brockway, J.), entered May 17, 2012, which, among other things, in a proceeding pursuant to Social Services Law § 384–b, granted petitioner's motion to revoke a suspended judgment, and terminated respondent's parental rights.
Respondent is the mother of four children (born in 2004, 2005, 2006 and 2008). In June 2011, Family Court sustained a permanent neglect petition against her and suspended judgment for 12 months subject to her compliance with various terms and conditions. In February 2012, petitioner moved to revoke the suspended judgment. Following a hearing, the court granted the motion and terminated respondent's parental rights. Respondent appeals.
Respondent's sole contention is that Family Court erred in relying upon a report submitted by the attorney for the children that contained facts not in evidence. In the absence of a timely objection, this claim was not preserved for our review ( see Matter of Treider v. Lamora, 44 A.D.3d 1241, 1243, 846 N.Y.S.2d 389 [2007],lv. denied9 N.Y.3d 817 [2007];Matter of Amy L.W. v. Brendan K.H., 37 A.D.3d 1060, 1061, 830 N.Y.S.2d 408 [2007] ). In any event, although it is well established that such reports should not be submitted ( see Matter of VanDee v. Bean, 66 A.D.3d 1253, 1255–1256, 888 N.Y.S.2d 230 [2009];Usack v. Usack, 17 A.D.3d 736, 738 n., 793 N.Y.S.2d 223 [2005];Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788 n., 766 N.Y.S.2d 727 [2003] ), the error was harmless. The court made no reference whatsoever to any of the factual assertions improperly contained therein, but merely noted the position stated by the attorney for the children as their advocate ( see Matter of VanDee v. Bean, 66 A.D.3d at 1256, 888 N.Y.S.2d 230;Matter of Graham v. Graham, 24 A.D.3d 1051, 1054, 806 N.Y.S.2d 755 [2005],lv. denied6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173 [2006];Matter of Rush v. Rush, 201 A.D.2d 836, 837–838, 608 N.Y.S.2d 344 [1994] ). The determination was amply supported by the evidence adduced at the hearing, and need not be disturbed ( see Matter of Henderson v. MacCarrick, 74 A.D.3d 1437, 1440–1441, 903 N.Y.S.2d 190 [2010];Matter of Card v. Rupert, 70 A.D.3d 1264, 1265, 896 N.Y.S.2d 490 [2010];Matter of Treider v. Lamora, 44 A.D.3d at 1243, 846 N.Y.S.2d 389).
The record indicates that Family Court requested the report because the attorney for the children did not expect to be able to appear at the hearing. However, the attorney for the children did appear and participated in the hearing, and copies of the report were distributed to the parties' counsel without objection.
ORDERED that the order is affirmed, without costs.
PETERS, P.J., ROSE, LAHTINEN and MALONE JR., JJ., concur.