Opinion
179 CAF 22-00266
03-17-2023
In the MATTER OF MILO C. Onondaga County Department of Children and Family Services, Petitioner-Respondent; v. Daniella C., Respondent-Appellant, and Joshua C., Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR RESPONDENT-APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT. ELIZABETH SCHENCK, SYRACUSE, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR PETITIONER-RESPONDENT.
ELIZABETH SCHENCK, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order entered after a fact-finding hearing that found that the subject child, her youngest, had been derivatively neglected. Contrary to the mother's contention, Family Court's finding of derivative neglect has a sound and substantial basis in the record (see Matter of Nino H. [Danielle F.] , 191 A.D.3d 1407, 1408, 138 N.Y.S.3d 419 [4th Dept. 2021], lv denied 37 N.Y.3d 903, 2021 WL 2251122 [2021] ; Matter of Carmela H. [Danielle F.] , 164 A.D.3d 1607, 1607, 85 N.Y.S.3d 291 [4th Dept. 2018], lv dismissed in part and denied in part 32 N.Y.3d 1190, 95 N.Y.S.3d 143, 119 N.E.3d 783 [2019] ). Here, petitioner established that the neglect of the subject child's two oldest siblings and subsequent guardianship order entered for those children as well as another sibling " ‘was so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still existed’ " ( Matter of Burke H. [Tiffany H.] , 117 A.D.3d 1568, 1568, 984 N.Y.S.2d 917 [4th Dept. 2014] ; see Matter of Sasha M. , 43 A.D.3d 1401, 1402, 845 N.Y.S.2d 206 [4th Dept. 2007] ). Although the mother showed, inter alia, that she attended some parenting classes and therapy sessions, she failed to meet her burden of demonstrating that the circumstances leading to the prior neglect "cannot reasonably be expected to exist currently or in the foreseeable future" ( Matter of Lamairik S. [Jonas S.] , 192 A.D.3d 1483, 1484, 140 N.Y.S.3d 839 [4th Dept. 2021], lv denied 37 N.Y.3d 905, 2021 WL 3927268 [2021] ).
The mother further contends that the court erred in admitting in evidence the entire case file from the Ontario County Department of Social Services because the case file contained some hearsay. We reject that contention. Here, the court admitted the case file in evidence conditionally, subject to the mother's hearsay objections (see Matter of Merle C.C. , 222 A.D.2d 1061, 1062, 636 N.Y.S.2d 519 [4th Dept. 1995], lv denied 88 N.Y.2d 802, 644 N.Y.S.2d 688, 689, 667 N.E.2d 338, 339 [1996]), and "[t]here is no indication that the court considered, credited, or relied upon inadmissible hearsay in reaching its determination" ( id. ). Regardless, we conclude that " ‘any error in [the] admission [of the case file] is harmless because the result reached herein would have been the same even had such record[s], or portions thereof, been excluded’ " ( Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1478, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ).