Opinion
729 CAF 19-00794
07-17-2020
In the MATTER OF CARMELA H. and Dominick H. Onondaga County Department of Children and Family Services, Petitioner-Respondent; Danielle F., and James H., Respondents-Appellants.
ANTHONY BELLETIER, SYRACUSE, FOR RESPONDENT-APPELLANT DANIELLE F. TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT JAMES H. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER-RESPONDENT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
ANTHONY BELLETIER, SYRACUSE, FOR RESPONDENT-APPELLANT DANIELLE F.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT JAMES H.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondents, the biological parents of the subject children, appeal from an order of fact-finding and disposition that, among other things, terminated their parental rights to the children. We affirm.
Respondents contend that, during the fact-finding hearing, Family Court abused its discretion in receiving in evidence notes prepared by two of petitioner's caseworkers. As an initial matter, contrary to the assertions of petitioner and the Attorney for the Children, we conclude that respondents preserved for our review their challenges to the admission in evidence of the notes. Respondents objected to the notes of the first caseworker on the grounds that they now raise on appeal, thereby preserving their contentions with respect to that set of notes (cf. Matter of Brooklyn S. [Stafania Q.—Devin S.] , 150 A.D.3d 1698, 1700, 52 N.Y.S.3d 607 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051983 [2017] ). The court overruled respondents’ objections, definitively rejecting their challenges to the admission of the first caseworker's notes, and thus respondents were not required to repeat the same arguments in order to preserve their contentions with respect to the second caseworker's notes (see People v. Finch , 23 N.Y.3d 408, 413, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014] ).
Nevertheless, we reject respondents’ contentions on the merits. In a proceeding to terminate parental rights pursuant to Social Services Law § 384-b, the admission of agency records is governed by CPLR 4518, which provides that reports are admissible as long as a sufficient foundation is laid (see Matter of Leon RR , 48 N.Y.2d 117, 122-123, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979] ; Matter of Chloe W. [Amy W.] , 148 A.D.3d 1672, 1673, 49 N.Y.S.3d 595 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2683455 [2017] ). An agency seeking to admit in evidence a record created by one of its employees must demonstrate that it was "within the scope of the [employee's] business duty to contemporaneously record the acts, transactions or occurrences sought to be admitted, and each participant in the chain producing the record ... was acting within the course of regular business conduct" ( Matter of Breeana R.W. [Antigone W.] , 89 A.D.3d 577, 578, 933 N.Y.S.2d 245 [1st Dept. 2011], lv denied 18 N.Y.3d 805, 2012 WL 400068 [2012] ; see CPLR 4518 [a] ). Here, a proper foundation for the admission of the caseworkers’ notes was laid by the caseworkers’ respective supervisors, who were familiar with petitioner's record-keeping practices (see Matter of James M.B. [Claudia H.] , 155 A.D.3d 1027, 1030, 65 N.Y.S.3d 212 [2d Dept. 2017] ; see generally Breeana R.W. , 89 A.D.3d at 578, 933 N.Y.S.2d 245 ). Nevertheless, even if petitioner did not meet the foundational requirements for admission of the notes, any error in their admission would be harmless because "the result reached herein would have been the same even had [they] been excluded" ( Chloe W. , 148 A.D.3d at 1673, 49 N.Y.S.3d 595 [internal quotation marks omitted] ).
We have reviewed respondents’ remaining contentions and we conclude that they do not require reversal or modification of the order.