Opinion
05-05-2017
In the Matter of JOSEPH M., JR. Erie County Department of Social Services, Petitioner–Respondent; Joseph M., Sr., Respondent–Appellant.
William D. Broderick, Jr., Elma, for Respondent–Appellant. Elisabeth M. Colucci, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
William D. Broderick, Jr., Elma, for Respondent–Appellant.
Elisabeth M. Colucci, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., CARNI, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Respondent father appeals from an order that, inter alia, revoked a suspended judgment entered upon his admission that he had permanently neglected the subject child, and terminated the father's parental rights. It is well settled that, where Family Court "determines by a preponderance of the evidence that there has been noncompliance with any of the terms of the suspended judgment, the court may revoke the suspended judgment and terminate parental rights" (Matter of Ronald O., 43 A.D.3d 1351, 1352, 842 N.Y.S.2d 801 ). Here, although the record from the hearing on petitioner's motion to revoke the suspended judgment establishes that the father made minimal progress on some of the conditions of the suspended judgment, " ‘literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must [also] show that progress has been made to overcome the specific problems which led to the removal of the child[ ]’ " (Matter of Maykayla FF. [Eugene FF.], 141 A.D.3d 898, 899, 34 N.Y.S.3d 777 ; see Matter of Erie County Dept. of Social Servs. v. Anthony P., 45 A.D.3d 1384, 1385, 845 N.Y.S.2d 587 ). Contrary to the father's contention, the record establishes that he failed to demonstrate such progress, and that he continues to deny the existence of the problems that led to the removal of the subject child. Consequently, we agree with petitioner that the court's "finding after a hearing that [the father] violated the conditions of the suspended judgment is supported by a preponderance of the evidence" (Matter of Robert T., 270 A.D.2d 961, 961, 704 N.Y.S.2d 436, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 2, 734 N.E.2d 1213 ; see Matter of Krystal M. [Kathleen M.–M.], 4 A.D.3d 764, 764, 771 N.Y.S.2d 421 ). The father's further contention that the court prematurely revoked the suspended judgment is without merit (see Matter of Emily A. [Gina A.], 129 A.D.3d 1473, 1474–1475, 11 N.Y.S.3d 751 ).
We reject the father's contention that he was denied the right to due process when the court curtailed his cross-examination of a witness at the hearing. The cross-examination that the father's attorney was attempting to pursue "was properly excluded as ‘too remote and speculative’ " (Matter of Michael U.
[Marcus U.], 110 A.D.3d 821, 822, 973 N.Y.S.2d 676 ; see Matter of Mi–Kell V., 226 A.D.2d 810, 810–811, 640 N.Y.S.2d 626 ; see also People v. Poole, 55 A.D.3d 1349, 1350, 866 N.Y.S.2d 468, lv. denied 11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448 ).
The father further contends that certain records were not properly admitted because they were not certified pursuant to section 1046(a)(iv) of the Family Court Act. The father waived that contention with respect to two of petitioner's exhibits because he specifically withdrew his objection to the validity of the certification regarding those exhibits (see generally Matter of Dyandria D., 22 A.D.3d 354, 354–355, 802 N.Y.S.2d 152, lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 337, 844 N.E.2d 792 ). In any event, the father's contention is without merit with respect to all of the records at issue. Section 1046(a) by its terms applies "[i]n any hearing under [articles 10 and 10–A]" of the Family Court Act, but the hearing at issue was part of a permanent neglect proceeding pursuant to article six of the Family Court Act and Social Services Law § 384–b.
We reject the father's further contention that the court erred in granting petitioner access to his mental health records. It is well settled that "a party's mental health records are subject to discovery where that party has placed his or her mental health at issue" (Matter of Richard SS., 29 A.D.3d 1118, 1124, 815 N.Y.S.2d 282 ). Here, by denying that he needed to comply with that part of the suspended judgment directing him to undergo mental health treatment, the father placed his mental health at issue.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.