Opinion
917 CAF 18–00435
10-04-2019
In the MATTER OF FREDERICKA S. and De'Lawrence S., III. Erie County Department of Social Services, Petitioner–Respondent; v. Jolanda S., Respondent–Appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. NICHOLAS G. LOCICERO, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
NICHOLAS G. LOCICERO, BUFFALO, FOR PETITIONER–RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, 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 terminating her parental rights with respect to the subject children pursuant to Social Services Law § 384–b (4)(c). We affirm.
Contrary to the mother's contention, the admission in evidence of certain testimony of petitioner's expert did not violate the mother's right to due process under the two-part test stated in Matter of State of New York v. Floyd Y., 22 N.Y.3d 95, 979 N.Y.S.2d 240, 2 N.E.3d 204 [2013]. Floyd Y. applies in a narrow context: the admission of hearsay evidence serving as the basis of an expert's opinion at civil commitment hearings held pursuant to article 10 of the Mental Hygiene Law (see id. at 106–109, 979 N.Y.S.2d 240, 2 N.E.3d 204 ). In cases such as respondent's, however, courts apply the professional reliability exception to the foundational requirements for expert testimony without addressing Floyd Y. (see e.g. Matter of Angel SS. [Caroline SS.], 129 A.D.3d 1119, 1120, 10 N.Y.S.3d 697 [3d Dept. 2015] ; Matter of Kaitlyn X. [Arthur X.], 122 A.D.3d 1170, 1171, 997 N.Y.S.2d 777 [3d Dept. 2014] ). To the extent that Floyd Y. requires additional due process scrutiny in the civil commitment context, its analysis should not be applied to the instant Family Court proceedings.
In any event, even assuming, arguendo, that the court erred in allowing petitioner's expert to provide certain testimony, the error is harmless in light of the expert's non-hearsay testimony regarding his own testing and personal observations (see generally Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, 861 N.Y.S.2d 551 [4th Dept. 2008], lv denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ).