| Matter of Grayson J. (Sharon H.) |
| 2014 NY Slip Op 04934 [119 AD3d 575] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 In the Matter of Grayson J. Administration forChildren's Services, Respondent; Sharon H., Appellant. (Proceeding No. 1.) In the Matterof Jonell H. Administration for Children's Services, Respondent; Sharon H., Appellant.(Proceeding No. 2.) |
Lansner & Kubitschek, New York, N.Y. (Carolyn A. Kubitschek, David J.Lansner, and Michelle Chui of counsel), for respondent-appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo andSusan Paulson of counsel), for petitioner-respondent.
Richard L. Herzfeld, New York, N.Y., attorney for the child Grayson J.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Marcia Egger ofcounsel), attorney for the child Jonell H.
In two related child protective proceedings pursuant to Family Court Act article 10,the mother appeals from (1) an order of fact-finding of the Family Court, Kings County(Danoff, J.), dated November 2, 2012, which, after a fact-finding hearing, found that sheneglected the child Jonell H. and derivatively neglected the child Grayson J., (2) an orderof disposition of the same court dated December 4, 2012, which, upon the fact-findingorder, and after a dispositional hearing, released the child Grayson J. to her custodywithout supervision, (3) an order of disposition of the same court (Mulroy, J.) datedMarch 7, 2013, which, upon the fact-finding order, and after the dispositional hearing,placed the child Jonell H. in the custody of the Commissioner of Social Services ofKings County through the completion of the next permanency hearing to be held onAugust 14, 2013, and (4) a permanency hearing order of the same court (Mulroy, J.), alsodated March 7, 2013, which also placed the child Jonell H. in the custody of theCommissioner of Social Services of Kings County until the completion of the nextpermanency hearing.
Ordered that the appeal from the order of fact-finding is dismissed, without costs ordisbursements, as that order was superseded by the order of disposition dated December4, 2012, [*2]insofar as it pertains to the child Grayson J.,and was superseded by the order of disposition dated March 7, 2013, insofar as itpertains to the child Jonell H., and the order of fact-finding is brought up for review onthe appeals from the orders of disposition; and it is further,
Ordered that the appeal from so much of the order of disposition dated December 4,2012, as released the child Grayson J. to the custody of the mother without supervision isdismissed, without costs or disbursements, as the mother is not aggrieved by that portionof the order (see CPLR 5511); and it is further,
Ordered that the appeal from so much of the order of disposition dated March 7,2013, as placed the child Jonell H. in the custody of the Commissioner of Social Servicesof Kings County through the completion of the next permanency hearing is dismissed asacademic, without costs or disbursements; and it is further,
Ordered that the appeal from the permanency hearing order dated March 7, 2013, isdismissed as academic, without costs or disbursements; and it is further,
Ordered that the orders of disposition are reversed insofar as reviewed, on the law,without costs or disbursements, the order of fact-finding is vacated, and the matter isremitted to the Family Court, Kings County, for further proceedings consistentherewith.
The appeal from so much of the order of disposition dated March 7, 2013, as placedthe child Jonell H. in the custody of the Commissioner of Social Services of KingsCounty through the completion of the next permanency hearing must be dismissed asacademic, as that part of the order has already expired (see Matter of Diamonte O. [TiffanyR.], 116 AD3d 866 [2014]; Matter of Alexandria M. [Mattie M.], 108 AD3d 548,548-549 [2013]; Matter ofNajad D. [Kiswana M.], 99 AD3d 707 [2012]). For the same reason, the appealfrom the permanency hearing order also must be dismissed. The appeal from the portionof the order of disposition dated March 7, 2013, which brings up for review the findingthat the mother neglected Jonell H. is not academic, however, since the adjudication ofneglect constitutes a permanent and significant stigma, which might indirectly affect themother's status in future proceedings (see Matter of Diamonte O. [Tiffany R.], 116 AD3d 866[2014]; Matter of Eunice D.[James F.D.], 111 AD3d 627, 628 [2013]).
The petitions alleged that the mother neglected Jonell H. by beating her with a belton April 16, 2010, and that the mother derivatively neglected the child Grayson J.
At the fact-finding hearing, the Family Court erred in excluding from evidenceInvestigation Progress notes dated April 18, 2010, indicating that a police officer hadinformed a caseworker that the officer had visited Jonell H. shortly after the allegedneglect took place and observed that the bruises on her right arm were "not serious" andthat "[t]here [are] not other visible bruises/marks observed" on her. These notes wereadmissible under the business records exception to the hearsay rule since the caseworkerwas under a duty to maintain a comprehensive case record for Jonell H., and the officerhad a duty to report his or her observations of her condition (see Matter of LeonRR, 48 NY2d 117, 122-123 [1979]; Matter of Imani O. [Marcus O.], 91 AD3d 466, 467[2012]).
The Family Court also erred in precluding the mother from calling four particularwitnesses to testify. Those witnesses would have given testimony pertaining to JonellH.'s motivation to lie. Extrinsic proof tending to establish a reason to fabricate is nevercollateral and may not be excluded on that ground (see People v Hudy, 73 NY2d40, 56 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513[2000]; People v Gomez, 79AD3d 1065, 1067 [2010]; People v Ocampo, 28 AD3d 684 [2006]; People vGaskin, 170 AD2d 458 [1991]). Similarly, the court should not have excluded fromevidence Family Service Progress notes containing statements by Jonell H.'s fosterparents relevant to her motivation to lie. Foster parents are "employees who [are] under abusiness duty to timely record and report all matters concerning the physical, mental, andemotional conditions of the children in their care to the foster care agency" (Matter ofDepartment of Social Servs. v Waleska M., 195 AD2d 507, 510 [1993]).
Under the circumstances of this case, the aforementioned errors deprived the motherof her right to present a defense and her right to a fair fact-finding hearing. Accordingly,a new fact-[*3]finding hearing is warranted (see Matter of Jaiden J. [ClevelandJ.], 98 AD3d 667, 668 [2012]; Matter of Jacqulin M., 83 AD3d 844 [2011]).
"While there is no absolute right to have the alleged victim of abuse testify in anarticle 10 proceeding, . . . a balancing of the respective interests [may]weigh[ ] in favor" of allowing such testimony (Matter of Tamara G., 295 AD2d194, 200 [2002]). Thus, at the new fact-finding hearing, the Family Court should notsummarily deny an application for Jonell H. to testify.
The mother's remaining contentions either are without merit or need not be reachedin light of our determination. Dillon, J.P., Chambers, Hall and Maltese, JJ., concur.