Opinion
160 CAF 21-01751
05-05-2023
In the MATTER OF JULIET W. Cattaraugus County Department of Social Services, Petitioner-Respondent; v. Amy W., Respondent-Appellant.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR RESPONDENT-APPELLANT. STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT. MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR RESPONDENT-APPELLANT.
STEPHEN J. RILEY, OLEAN, FOR PETITIONER-RESPONDENT.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an amended order that, inter alia, determined that she derivatively neglected the subject child. The mother contends that Family Court erred at the fact-finding hearing in admitting in evidence a report from a licensed psychologist who did not testify at trial. Even assuming, arguendo, that the report constituted hearsay and did not qualify for admission under Family Court Act § 1046 (a) (iv) (see Matter of Chloe W. [Amy W.] , 137 A.D.3d 1684, 1685, 28 N.Y.S.3d 201 [4th Dept. 2016] ), we conclude that any error was harmless inasmuch as " ‘the result reached herein would have been the same’ " even if the report had been excluded ( Matter of Carl B. [Crystale L.] , 178 A.D.3d 1456, 1456, 112 N.Y.S.3d 641 [4th Dept. 2019], lv denied 35 N.Y.3d 903, 2020 WL 2203165 [2020] ; see 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] ).
We reject the mother's further contention that the court's finding of derivative neglect is not supported by a preponderance of the evidence. Prior orders of the court in January 2016 and June 2018 terminated the mother's parental rights over one of her children on the ground of permanent neglect and terminated her parental rights over three of her other children on the grounds of mental illness and intellectual disability. We affirmed both orders in prior appeals ( Matter of Destiny S. [Amy W.] , 177 A.D.3d 1314, 1314, 110 N.Y.S.3d 375 [4th Dept. 2019], lv denied 35 N.Y.3d 947, 124 N.Y.S.3d 619, 147 N.E.3d 1156 [2020] ; 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] ). There is ample evidence in the record to support the court's finding that the prior determination of permanent neglect against the mother was "so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition[s] still existed" ( 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] [internal quotation marks omitted]; see 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 & denied in part 32 N.Y.3d 1190, 95 N.Y.S.3d 143, 119 N.E.3d 783 [2019] ; Matter of Burke H. [Tiffany H.] , 117 A.D.3d 1568, 1568, 984 N.Y.S.2d 917 [4th Dept. 2014] ), "and that the mother failed to address the problems that led to the neglect finding[ ] with respect to [one of] her other children" ( Carmela H. , 164 A.D.3d at 1608, 85 N.Y.S.3d 291 [internal quotation marks omitted]).
To the extent the mother contends that the court erred in refusing to credit her testimony that the problems that led to the neglect finding "have been effectively remediated," we reject that contention. We see "no reason to disturb the court's credibility determinations inasmuch as they are supported by the record" ( Matter of Aaren F. [Amber S.] , 181 A.D.3d 1167, 1168, 120 N.Y.S.3d 665 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047528 [2020] ).
We further conclude that the court's determination of derivative neglect was also properly "support[ed] by a finding that the mother's [largely] untreated and ongoing mental illness [and her intellectual disability] resulted in an inability to care for [the subject] child for the foreseeable future" ( Matter of Kaylene S. [Brauna S.] , 101 A.D.3d 1648, 1649, 956 N.Y.S.2d 738 [4th Dept. 2012], lv denied 21 N.Y.3d 852, 2013 WL 1760947 [2013] ; see Matter of Henry W. , 30 A.D.3d 695, 696, 815 N.Y.S.2d 797 [3d Dept. 2006] ; Matter of Hannah UU. , 300 A.D.2d 942, 944-945, 753 N.Y.S.2d 168 [3d Dept. 2002], lv denied 99 N.Y.2d 509, 760 N.Y.S.2d 100, 790 N.E.2d 274 [2003] ).