| Matter of Anthony QQ. |
| 2008 NY Slip Op 01676 [48 AD3d 1014] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Anthony QQ. and Another, Children Alleged to beNeglected. Columbia County Department of Social Services, Respondent; John QQ.,Appellant. |
—[*1] Dena N. Putnick, Columbia County Department of Social Services (James A. Carlucci ofcounsel), Hudson, for respondent. Bethene L. Simmons, Law Guardian, Chatham.
Lahtinen, J. Appeal from an order of the Family Court of Columbia County (Maney, J.),entered June 7, 2007, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 10-A, to extend the placement of respondent's children.
Respondent is the father of two sons (born in 1999 and 2000) who were removed from thehome in August 2000 and placed in foster care by petitioner. They were adjudicated as neglectedchildren in May 2001 and the mother voluntarily surrendered her parental rights in May 2003. Apermanency plan with a goal of returning the children to respondent was established and, after herelocated to Arkansas for employment purposes, Family Court (Cholakis, J.) issued apermanency hearing order in October 2006 in which respondent was given four consecutive daysof supervised visitation every month and petitioner covered his airfare, lodging andtransportation costs. Subsequently, a new permanency hearing report was prepared by petitionerwith a goal of reunification and, following a hearing in May 2007, Family Court (Maney, J.)issued an order continuing the children in foster care, modifying respondent's [*2]supervised visitation to one day per week and directing hisparticipation in various services. Respondent appeals.
Respondent argues that Family Court erred in considering, over his hearsay objection, thepermanency hearing report prepared by petitioner. The preparation of a detailed permanencyhearing report is required by statute (see Family Ct Act § 1089 [c]). TheLegislature has specifically directed that such report "shall be submitted to the court" (Family CtAct § 1089 [b] [2]). Hence, although the report is hearsay, there is an explicit statutoryexception permitting the court to consider the report (see generally Comiskey v Arlen, 55AD2d 304, 309 [1976], affd 43 NY2d 696 [1977] [Legislature has power to carve outexceptions to the hearsay rule]). Moreover, the statute provides that a child's parent (as well asother interested parties) are to receive the report in advance of a hearing (see Family CtAct § 1089 [b]), thus satisfying notions of fundamental fairness and obviating potentialundue prejudice (cf. Matter of Allen v Wells, 256 AD2d 651, 652-653 [1998]). To theextent that respondent contends that the procedures employed violated his due process rights, wenote that by providing him the report in advance, he was afforded ample opportunity to address itand, if he desired, to present proof challenging it (see Matter of Gordon L. v Michelle M.,296 AD2d 628, 630 [2002]).
Next, respondent asserts that the permanency hearing was not completed within the statutorytime frame (see Family Ct Act § 1089 [a] [3]). While the hearing was originallyscheduled to commence in compliance with the statute, Family Court (Cholakis, J.) was recusedand subsequently both respondent's counsel and the Law Guardian requested an adjournment,which was granted. Another brief adjournment was granted to permit respondent, who wastraveling, to appear in person. These circumstances presented good cause to justify the briefadjournments. Further, even if there had been an unjustified brief delay in complying with thestatutory time frame, the remedy in this case would not be, as requested by respondent, animmediate return of the children to him.
Cardona, P.J., Mercure, Spain and Kane, JJ., concur. Ordered that the order is affirmed,without costs.