Opinion
No. B–XXXXXXX/12.
2013-04-30
In the Matter of the COMMITMENT OF NICOLE and Emili A., Dependent Children Under the Age of 18, to the Custody and Guardianship of St. Dominic's Home and the Commissioner of ACS, Pursuant to Social Services Law § 384–b.
Daniel Fraidstern, Esq., Warren & Warren, P.C., Brooklyn, for St. Dominic's Home. Ryan Napoli, Esq., Bronx Defenders, Family Defense Practice, Bronx, for Maribel A.
Daniel Fraidstern, Esq., Warren & Warren, P.C., Brooklyn, for St. Dominic's Home. Ryan Napoli, Esq., Bronx Defenders, Family Defense Practice, Bronx, for Maribel A.
Candice Whatley, Esq., Legal Aid Society, Juvenile Rights Practice, Bronx, Attorney for the Children.
Alan W. Sputz, Esq., Special Assistant Corporation Counsel Administration for Children's Services Family Court Legal Services, Bronx.
ERIK S. PITCHAL, J.
In this proceeding in which the petitioner, St. Dominic's Home, seeks to terminate the parental rights of Ms. Maribel A. to her two children, Nicole and Emili, respondent's counsel objects to the admission into evidence of various portions of petitioner's proffered exhibits. Additionally, respondent requests that the Court draw a missing witness inference from petitioner's purported failure to call two specific individuals to testify at trial.
At the outset, it should be noted that during a pre-trial conference—at which time the fact-finding dates were scheduled—the Court directed petitioner's counsel to provide notice to the respondent's counsel and the attorney for the children of any documentary evidence his client wished to admit at trial. The Court further directed counsel for the respondent and the attorney for the children to file a written motion in limine in advance of trial, should they have any objections the petitioner's intended exhibits. No such motions were filed. However, when petitioner was moving the entry of various exhibits at the commencement of the trial, respondent's counsel noted that he had objections to many portions of the agency's case records.
He also stated that he was unaware that petitioner had intended to introduce the records of two drug treatment programs, which petitioner had subpoenaed on notice. (3/28/13 Tr. at 12–20.)
In explaining his failure to file a written motion in limine in advance of trial, as directed by the Court, counsel stated that he had to “triage” his caseload. (3/28/13 Tr. at 24.) While sensitive to the heavy workloads of all lawyers who practice in Family Court, the Court notes that the proper approach for an attorney to take in a situation like this would be to file a written request for an enlargement of time to submit pre-trial motions, as opposed to appearing on the trial date and making oral objections to voluminous documentary evidence.
So as to afford all counsel a fair opportunity to make their evidentiary objections known, and to avoid the “facile practice” of the Court attempting to “disregard” hearsay portions of voluminous records, Matter of Leon R.R., 48 N.Y.2d 117, 122 (1979), the Court accepted the agency's exhibits into evidence but permitted counsel to file written objections mid-trial. A briefing schedule was set, designed for the Court to issue a ruling prior to the petitioner resting its case, thus affording the petitioner the opportunity to supplement its evidence if necessary.
Respondent's counsel timely filed his objections in a pleading styled as an affirmation, dated April 11, 2013, which the Court will consider to be an omnibus evidentiary motion. Petitioner's counsel and the attorney for the child requested an enlargement of time to respond, from the original deadline of April 18 to April 22, which was granted, and their pleadings were filed on that date.
Respondent's objections fall into three categories. First, she objects to certain entries in Petitioner's Exhibit 7, progress notes of the St. Dominic's Home agency concerning the A. case, on the basis that the statements are hearsay not otherwise admissible under any available exception to the hearsay rule. Second, she objects to documents contained within Petitioner's Exhibit 5 (records of Arms Acres) and Exhibit 6 (records of Untied Bronx Parents) that were created by entities other than Arms Acres and United Bronx Parents, respectively. Third, she objects to portions of Exhibit 6 that post-date the filing of the petitions on August 3, 2012.
Additionally, as noted above, respondent requests a missing witness inference.
It should be noted that the Court directed respondent's counsel to file his objections to various portions of Exhibits 5, 6, and 7 in writing, but no discussion was had regarding a missing witness inference or other evidentiary issues beyond the proferred documentary exhibits. As a matter of sound procedure, then, respondent's counsel ought to have filed a motion on notice seeking the missing witness inference. However, since the Court is denying the request as premature ( see infra at 20), there is no point in requiring counsel to re-file this request at the present time. Should counsel wish to renew this request after the petitioner rests, it should be done in the form of a written motion.
Each of these items will be considered in turn.
II. Legal Standard
Petitioner alleges that Ms. A. has permanently neglected her children within the meaning of the Social Services Law, which provides in relevant part:
For the purposes of this section, “permanently neglected child” shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.
Soc. Svcs. L. § 384–b(7)(a). The statute further defines “diligent efforts” to mean, in relevant part: reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:
(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;
(2) making suitable arrangements for the parents to visit the child ...;
(3) provision of services and other assistance to the parents ... so that problems preventing the discharge of the child from care may be resolved or ameliorated;
(4) informing the parents at appropriate intervals of the child's progress, development and health ....; and
(6) providing information which the authorized agency shall obtain from the office of children and family services, outlining the legal rights and obligations of a parent who is incarcerated or in a residential substance abuse treatment program whose child is in custody of an authorized agency, and on social or rehabilitative services available in the community, including family visiting services, to aid in the development of a meaningful relationship between the parent and child. Wherever possible, such information shall include transitional and family support services located in the community to which an incarcerated parent or parent participating in a residential substance abuse treatment program shall return.
Soc. Svcs. L. § 384–b(7)(f). Proof of diligent efforts is a threshold matter in a permanent neglect prosecution. Matter of Sheila G., 61 N.Y.2d 368, 427 (1984). “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps.” Id. at 430.
Respondent's primary evidentiary objections are grounded in the law of hearsay. Conceding that Petitioner's Exhibits 5, 6, and 7 are business records falling within the exception to hearsay provided in C.P.L.R. § 4518, she asserts that portions of those exhibits are nevertheless hearsay because they are statements (whether oral or written) made by someone other than the entrant of the business records.
The relevant statutory provision states:
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind.
C.P.L.R. § 4518(a). Petitioner's Exhibits 5 and 6 contain the delegation and certification required by § 4518(c), and from his pleading respondent's counsel evidently does not object to their general admissibility as business records of Arms Acres and United Bronx Parents, respectively. Nor does he object to the general admissibility of Exhibit 7 as business records of petitioner. Rather, he objects to statements contained within each of these exhibits, made by someone other than Arms Acres, United Bronx Parents, and St. Dominic's Home, respectively.
As regards recordations in business records of oral statements made by someone other than the entrant of the business records, the general rule is that for the statement to be admissible, the informant must be under a contemporaneous business duty of his own to report the fact in question to the entrant, Matter of Leon R.R., 48 N.Y.2d at 122–23, and the informant must have personal knowledge of the fact. Id. at 123.See also Matter of Imani O., 91 AD3d 466 (1st Dep't.2012). The First Department has interpreted the Leon R.R. test somewhat loosely, finding that someone other than the informant can lay the necessary foundation. For example, the contents of a job placement agency's database are admissible, notwithstanding that the data were entered by the agency's recruitment staff on the basis of oral information provided by job applicants. Pencom Systems, Inc., v. Shapiro, 237 A.D.2d 144 (1st Dep't.1997). The “recruiters were under a business duty to record contemporaneously statements that were made ... in the course of their contacts with job applicants, and they regularly relied upon such information in matching applicants with possible employers. In addition, the desire of the applicant to secure a better position, the recruiter's reliance on the information provided, and the applicant's awareness of that reliance created an equivalent business duty on the part of the applicant to accurately respond to the recruiter's inquiries.” Id.
Similarly, when it comes to documents created by an outside entity contained within a business's records, the general rule is that “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records.” Standard Textile Co. V. National Equip. Rental, 80 A.D.2d 911 (2d Dep't.1981). The outside record must satisfy the foundation requirements of C.P.L.R. § 4518 independently. People v. Cratsley, 86 N.Y.2d 81, 89 (1995). As is the case with oral statements, the § 4518 predicates can be established by someone other than the creator of the document in question; all that is required is a witness who is “familiar with the practices of a company that produced the records at issue, and who generally relies upon such records.” People v. Brown, 13 NY3d 332, 341 (2009). Thus, courts have admitted into evidence I.Q. reports contained within the records of a social welfare agency but not created by that agency, with the requisite foundation established by an employee of the social welfare agency, Cratsley, 86 N.Y.2d at 90–91; DNA reports produced by an outside vendor, contained within the records of the Office of Chief Medical Examiner, with the requisite foundation established by an employee of the OCME, Brown, 13 NY3d at 341; delivery tickets created by truckers, contained within the records of a fuel company that contracted with the truckers to transport its product, with the requisite foundation established by the president of the fuel company, Plymouth Rock Fuel Corp. V. Leucadia, Inc., 117 A.D.2d 727 (2d Dep't.1986); and an employment application and W–4 form produced by a prospective employee contained within the records of the employer, with the requisite foundation established by someone other than the prospective employee. People v. McKissick, 281 A.D.2d 212 (1st Dep't.2001).
C.P.L.R. § 4518(a) is worded exactly as its predecessor statute, Civil Practice Act § 374–a, which was enacted in 1928. Johnson v. Lutz, 253 N.Y. 124 (1930). In creating Civil Practice Act § 374–a, the Legislature adopted, word-for-word, the recommendation of a group of scholars who proposed a uniform evidentiary rule for all jurisdictions. Id. at 127. The purpose of the model statute—and the New York provision—was to update the law to reflect modern business practices. Up until that point, business records were generally considered inadmissible hearsay, but as modernity fueled more complex business transactions, this rule “often resulted in a denial of justice, and usually in annoyance, expense and waste of time and energy. A rule of evidence that was practical [in the 19th century] had become obsolete.” Id. at 126–27. With the new statutory provision—which, but-for an amendment enacted in 2002 to add language regarding electronic records
, is identical today to the version first enacted in 1928—courts approached evidence from a pragmatic, business-oriented perspective.
Act of July 23, 2002, ch. 136, 2002 McKinney's Sess. Laws of N.Y. 1 (codified at C.P.L.R. § 4518).
In other words, if certain statements and documents are relied on in the ordinary course of a firm's operations—where the stakes can be high and the cost of errors significant—then there should be no reason that courts should have a higher standard of reliability for the purpose of determining admissibility. “Where it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court-room ... Courts must here cease to be pedantic and endeavor to be practical.” Id. at 129 (quoting 3 Wigmore on Evidence (1923) § 1530). Thus, for example, if an emergency room anesthesiologist relies on a laboratory report concerning a patient's blood alcohol level in order to ensure the patient receives the appropriate drugs during emergency surgery, then there is no reason a court should exclude the report as unreliable hearsay, when it is contained within the hospital's otherwise admissible business record. Rodriguez v. Triborough Bridge & Tunnel Auth., 276 A.D.2d 769, 771 (2d Dep't.2000).
The overall lesson the Court draws, then, is that for the portions of Exhibits 5, 6, and 7 to which respondent objects to be admissible to prove the truth of the matter asserted, petitioner must lay an adequate foundation under § 4518. For the oral statements recorded in Exhibit 7, the petitioner must establish (as a factual matter or as a matter of law) that the informant of each oral statement in question was under a business duty to make it accurately; that St. Dominic's staff rely on such statements in the usual course of their business and did rely on these statements; and that the statements in question were recorded contemporaneously (hereinafter referred to as the “ Pencom/Imani O. rule”). To satisfy these requirements, the writing must necessarily identify the declarant with sufficient particularity to permit a witness to testify as to the declarant's business duty. Imani O., 91 AD3d at 367.
For the documents created by entities other than Arms Acres contained within Exhibit 5, the petitioner must establish that each document in question is itself a business record; that Arms Acres relies on such documents in the ordinary course of its business; and that it did rely on these documents. However, petitioner need not produce a witness from the entity that created the document to lay the required foundation. Similarly, for the documents created by entities other than United Bronx Parents contained within Exhibit 6, the petitioner must establish that each document in question is itself a business record; that United Bronx Parents relies on such documents in the ordinary course of its business; and that it did rely on these documents. As with Exhibit 5, the petitioner need not produce a witness from the entity that created the document to lay the required foundation.
With these rules in mind, the Court now turns to an analysis of each objected-to statement and document. III. Respondent's Objections A. Objections to Pet. Ex. 7
Respondent objects to 12 categories of entries within petitioner's Exhibit 7, the caseworker progress notes from St. Dominic's Home concerning the A. case. (Napoli Affirm. ¶ 26(a)-(l).)
a. Page 3, Event Date 2/8/11, Entry Date 2/23/11; and Page 29, Event Date 5/2/11, Entry Date 5/2/11.
Respondent objects to these statements on the basis that they are hearsay statements of Nelly Gomez, of the Claremont Neighborhood Center. The notes concern the respondent's referral to and participation in a parenting skills course at Claremont. Petitioner and the attorney for the child both respond that the statements are not offered for the truth of the matter asserted, but rather to show the state of mind of the St. Dominic's Home worker who entered the notes, as relates to the agency's asserted diligent efforts to strengthen the parent-child relationship.
The Court will admit the statements into evidence to the extent that they relate to the case worker's state of mind. These statements provide context for the Court to make judgements about the petitioner's efforts to “assist, develop and encourage a meaningful relationship between the parent and child.” Soc. Svcs. L. § 384–b(7)(f). As framed by the courts in another jurisdiction, the hearsay in child welfare agency reports can be admitted to “set the stage” for the actions and events that transpired thereafter, if not for their truth. See, e.g. Custody of Michel, 549 N.E.2d 440, 443 Mass.App.Ct.1989). These actions and events are typically motivated by the subjective beliefs of caseworkers, which are formed from information gathered during the case. Even though that information, as recorded in the progress notes, may be hearsay inadmissible to prove the information's veracity, it is admissible to contextualize the response of the entrant thereafter.
Ultimately, however, a determination as to whether the agency made diligent efforts hinges on the actual needs of the case—proven by admissible, clear, and convincing evidence—not the caseworker's possibly inaccurate perception of what the case required.
However, under the Pencom/Imani O. rule, the Court will admit the statements for their truth if the petitioner is able to establish that (1) as an employee of an agency that provides parenting skills courses, Ms. Gomez was under a business duty to accurately report to a referring foster care agency the details of the enrollment and participation in such courses of a parent who is referred by the foster care agency; (2) St. Dominic's Home relies on such reports from parenting skills providers in the ordinary course of its business working with parents who have lost children temporarily to foster care; (3) St. Dominic's relied on these particular reports, regarding Ms. A.'s compliance with her service plan, which included a requirement to complete a parenting skills course; and (4) St. Dominic's recorded the statements made by Ms. Gomez contemporaneously. (Based on the event and entry dates listed in the record itself, the Court finds that the entries were made sufficiently contemporaneously to meet this last requirement.)
b. Page 7, Event Date 2/8/11, Entry Date 2/23/11; Pages 13–14, Event Date 2/23/11, Entry Date 3/3/11; Page 17, Event Date 3/21/11, Entry Date 3/21/11; Page 18, Event Date 3/22/11, Entry Date 3/22/11; Page 19, Event Date 3/30/11, Entry Date 3/30/11; Page 25, Event Date 4/18/11, Entry Date 5/2/11; Page 29, Event Date 5/2/11, Entry Date 5/2/11; Page 52, Event Date 7/19/11, Entry Date 7/20/11; Pages 54–55, Event Date 7/21/11, Entry Date 7/21/11; Pages 56–57, Event Date 7/28/11, Entry Date 7/28/11; Page 57, Event Date 8/1/11, Entry Date 8/2/11; Page 57, Event Date 8/2/11, Entry Date 8/3/11.
Respondent objects to these statements on the basis that they are hearsay statements of Mr. Maldonado of Arms Acres, who, according to the notes, was Ms. A.'s counselor at the drug treatment program. The notes concern reports by Mr. Maldonado of Ms. A.'s participation in and compliance with the Arms Acres program, including drug testing results. Petitioner and the attorney for the child both respond that the statements are not offered for the truth of the matter asserted, but rather to show the state of mind of the St. Dominic's Home worker who entered the notes, as relates to the agency's asserted diligent efforts to strengthen the parent-child bond.
The Court notes that the entry on page 17 does not contain any statement by Mr. Maldonado, but rather contains a report by the entrant, Ms. Lantigua of St. Dominic's Home, that when she phoned Mr. Maldonado, he was not available, and she left a voicemail. This entry is not hearsay and is fully admissible.
As to the other entries, the Court will admit the statements into evidence to the extent that they relate to the petitioner's state of mind. However, under the Pencom/Imani O. rule, the Court will admit the statements for their truth if the petitioner is able to establish that (1) as a counselor at a drug treatment agency, Mr. Maldonado was under a business duty to accurately report to a referring foster care agency the details of the enrollment and participation in drug treatment of a parent who is referred by the foster care agency; (2) St. Dominic's Home relies on such reports from drug treatment providers in the ordinary course of its business working with parents who have lost children temporarily to foster care; (3) St. Dominic's relied on these particular reports, regarding Ms. A.'s compliance with her service plan, which included a requirement to complete a drug treatment course; and (4) St. Dominic's recorded the statements made by Mr. Maldonado contemporaneously. (Based on the event and entry dates listed in the record itself, the Court finds that the entries were made sufficiently contemporaneously to meet this last requirement.)
c. Pages 8–13, Event Date 2/22/11, Entry Date 2/23/11.
Respondent objects to the notes summarizing a case conference in which various representatives of ACS and St. Dominic's Home participated, but the respondent did not. In particular, respondent objects to those portions of the case conference summary that concern her mental health treatment, as well as a statement by the foster mother explaining why the respondent did not come to the conference.
With respect to those portions of this entry that record the statements of those other than the entrant (Ms. Sandra Grant), the Court finds that each participant in the conference (they are listed on page 12 of the exhibit) had a business duty to report accurately whatever information he or she had that was relevant to the purpose of the conference, namely, to update the agency on the status of each aspect of Ms. A.'s service plan. All participants were employees of ACS or St. Dominic's Home. The very nature of the business of St. Dominic's and ACS is to assist parents who have temporarily lost children to foster care in completing services deemed appropriate for the family to reunify safely—as well as to make judgments about when it is no longer in the children's best interests for the agency to plan for reunification. Thus, the participants in case conferences are under a business duty to provide each other accurate information about the parent's compliance with the service plan and, based on this information, determine the next steps in the case. The Court finds that it is in the regular course of petitioner's business to accurately record the summary of case conferences and that this summary was made in the regular course of its business. Additionally, as the Court also finds that the entry of this particular note was made the day after the conference was held, the recordation was sufficiently contemporaneous to the event it summarized.
With respect to the statement by the foster mother explaining the non-appearance at the case conference of the respondent (who is her sister), the Court notes that foster parents are, as a matter of law, under a business duty to accurately report information about the children to the agency, Matter of Waleska M., 195 A.D.2d 507 (2d Dep't.1993). However, counsel has cited no authority, and the Court is not aware of any, that extends the Waleska M. duty to information a foster parent may have concerning the biological parent, even if the two are siblings, without additional foundation.
The Court will thus admit the foster mother's statement not for its truth concerning why the respondent did not attend the case conference, but rather to set the stage for the agency's action of going forward with the conference notwithstanding the information provided by the foster mother. The balance of this entry is admitted for all purposes.
d. Page 16, Event Date 3/8/11, Entry Date 3/9/11; Page 16–17, Event Date 3/16/11, Entry Date 3/17/11; Page 19, Event Date 3/30/11, Entry Date 3/30/11; Pages 20–21, Event Date 4/1/11, Entry Date 4/7/11; Pages 25–26, Event Date 4/19/11, Entry Date 4/19/11; Page 28, Event Date 4/26/11, Entry Date 4/26/11; Pages 31–32, Event Date 5/6/11, Entry Date 5/9/11; Page 34, Event Date 5/17/11, Entry Date 5/17/11; Pages 35–36, Event Date 5/31/11, Entry Date 6/1/11; Page 40, Event Date 6/14/11, Entry Date 6/14/11; Pages 40–41, Event Date 6/15/11, Entry Date 6/15/11; Page 57, Event Date 8/2/11, Entry Date 8/2/11; Pages 59–60, Event Date 8/9/11, Entry Date 8/10/11; Page 78, Event Date 2/6/12, Entry Date 2/14/12; Pages 83–84, Event Date 3/13/12, Entry Date 3/23/12; Pages 84–85, Event Date 3/16/12, Entry Date 3/19/12; and Page 86, Event Date 4/11/12, Entry Date 4/30/12.
Respondent objects to these notes insofar as they record statements made by the children's foster mother. Petitioner and the attorney for the children respond that the statements are admissible because the foster mother is under a business duty to report the information contained in these notes to the agency, pursuant to Waleska M. As noted above, the Waleska M. rule provides that foster parents have a business duty to report information about the children in their care; that case does not state that foster parents also have a duty to report to the agency things the biological parent may say to them.
However, in cases in which the biological parent is permitted to visit the children at the foster home, without any supervisor other than the foster parent, the Court is of the view that the foster parent becomes, temporarily, an agent of the agency. Thus, like an employee of the agency whose job duties include supervising parent-child visits, the foster parent who is asked to (and agrees to) supervise such visits is under a business duty to accurately report to the agency statements the biological parent may make concerning why she is unable to attend a visit, as well as the foster mother's observations and impressions of the biological mother based on the visits. Therefore, all of these entries are admissible for all purposes, with the exception of the entry on pages 84–85 (event date 3/16/12, entry date 3/19/12), which petitioner previously redacted.
e. Page 23, Event Date 4/12/11, Entry Date 5/2/11.
The respondent objects to this note insofar as it includes hearsay statements made by Ms. Anderson of North Central. The note concerns the entrant's attempts to obtain the respondent's mental health records from North Central. While the petitioner is willing to redact this note, the Court agrees with the attorney for the child that the note is admissible to show St. Dominic's efforts to obtain the North Central records both before and after the conversation with Ms. Anderson, and it is admitted for that purpose. It is not admitted for the truth of the matter asserted by Ms. Anderson.
f. Page 49, Event Date 7/13/11, Entry Date 7/13/11; Page 51, Event Date 7/19/11, Entry Date 7/20/11; and Page 52, Event Date 7/20/11, Entry Date 7/20/11.
Respondent objects to these notes on the basis that they contain the hearsay statements of an unnamed person at Full Circle. Petitioner concedes that they are not offered for the truth of the matter asserted by unnamed Full Circle staff, but rather to establish the state of mind of St. Dominic's Home staff. Indeed, there has already been oral testimony concerning the petitioner's referral of the respondent to Full Circle. (3/28/13 Tr. at 62.) The notes in question are admitted to set the stage for the agency's response to the information provided by Full Circle; they can assist the Court in understanding the agency's actions and assessing whether it made diligent efforts to strengthen the parent-child relationship. They are not admitted for the truth as stated by Full Circle representatives.
Indeed, the Court doubts that petitioner could satisfy the requirements of the Pencom/Imani O. Rule to have these notes admitted for their truth, especially considering that the declarant of each statement is unnamed.
g. Page 51, Event Date 7/19/11, Entry Date 7/19/11; and Page 62, Event Date 8/26/11, Entry Date 8/26/11.
Respondent objects to these notes, which contain the report of the entrant (the assigned caseworker at the time, Ms. Karily Lantigua) that she sent written correspondence to Ms. A. Respondent asserts that under the best evidence rule, the petitioner should provide the letters instead. Petitioner asserts simply that the note fits into the business records exception. However, this is non-responsive to respondent's complaint. The best evidence rule always concerns admissible evidence; it is a rule about whether certain evidence should be barred because another, better version of it is missing and should have been made available to the court. Petitioner also claims that in any event, the letters cannot be produced, as they were mailed to the mother. The attorney for the child states that the best evidence rule is limited in application to circumstances in which the original of a document needs to be produced, as opposed to a copy.
The Court notes that if a foster care agency were following responsible business practices, it would maintain a copy of any outgoing correspondence, particularly letters to biological parents notifying them of important activities in the case. A copy of the outgoing letter would indeed be more persuasive evidence of what the letter said and where it was sent than a worker's summary of the letter in the case record. However, the summary in the case record is not inadmissible under the best evidence rule. “Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence.” Schozer v. William Penn Life Ins. Co. of New York, 84 N.Y.2d 639 (1994). Here, the petitioner has explained, quite reasonably, that the original letters were mailed. When the original of a writing is not available, “all competent secondary evidence is generally admissible to prove its contents.” Id. at 645. The worker's entry in the case record is an example of competent secondary evidence, as would be a photocopy of the letter. The Court notes that the entry date for both of the notes in question here is the same as the event date, thus further bolstering the reliability of the notes. They are thus admissible to prove that the letters were sent and what they said.
h. Page 52, Event Date 5/20/11, Entry Date 7/20/11; Page 56, Event Date 7/28/11, Entry Date 7/28/11; and Page 61, Event Date 8/26/11, Entry Date 8/29/11.
Respondent objects to these notes, summarizing conversations with staff from the Taylormade program. Petitioner concedes that they are not offered for the truth of the matter asserted by Taylormade staff, but rather to establish the state of mind of St. Dominic's Home staff. The notes in question set the stage for the caseworker's response to the information provided by Taylormade, and are admitted to assist the Court in understanding the agency's actions and assessing whether it made diligent efforts to strengthen the parent-child relationship. They are not admitted for the truth of the information provided by Taylormade representatives.
i. Page 60, Event Date 8/10/11, Entry Date 8/10/11; and Page 61, Event Date 8/17/11, Entry Date 8/29/11.
Respondent objects to these notes, summarizing conversations with staff from the United Bronx Parents program. Petitioner asserts that the first note in question is not a statement at all; however, the note contains information concerning the respondent's intake appointment at United Bronx Parents, which could only have come from a declarant other than the St. Dominic's worker who placed the call. Petitioner concedes that the second statement is not offered for the truth of the matter asserted by Bronx United Parents staff.
The Court finds that both notes are admissible, not for the truth, but rather to set the stage for the actions of St. Dominic's Home staff. The notes in question are admitted to assist the Court in understanding St. Dominic's Home's actions and assessing whether it made diligent efforts to strengthen the parent-child relationship.
j. Pages 68–69, Event Date 11/2/11, Entry Date 12/5/11; Page 70, Event Date 11/9/11, Entry Date 11/12/11; Page 74, Event Date 12/27/11, Entry Date 12/29/11; and Page 75, Event Date 1/19/12, Entry Date 1/19/12.
Respondent objects to these notes, summarizing conversations with Ms. A.'s landlord. Petitioner concedes that the statements are not offered for the truth of the matter asserted by the landlord.
The Court finds that these notes are admissible, not for the truth, but rather to set the stage for the actions of St. Dominic's Home staff. The notes in question are admitted to assist the Court in understanding St. Dominic's Home's actions and assessing whether it made diligent efforts to strengthen the parent-child relationship.
k. Pages 87–88, Event Date 6/4/12, Entry Date 6/28/12.
The respondent objects to this note, summarizing a conversation with a representative of United Bronx Parents, on the grounds that it is hearsay; that the best evidence would be Exhibit 6; and that the toxicology reports themselves are inadmissible. The Court agrees with petitioner that this note is admissible for the purpose of demonstrating the St. Dominic's Home worker's efforts to monitor Ms. A.'s compliance with her service plan.
The respondent also objects to this note on the ground that it falls outside the relevant time frame stipulated to by the petitioner, which he asserts is January 2011 through May 26, 2011. During a colloquy on this issue, petitioner's counsel asked the Court to take judicial notice of the filing date of the petitions, August 3, 2012, but went on to say, “[T]he permanent neglect period that I'm focusing on, if this helps, is from the placement date in January 2011 through May, on or about May 26, 2012 ... So if the Court wants to further just only consider through that period of these records, that's fine with me as well.” (3/28/13 Tr. at 12.) However, the Court notes that this discussion only concerned a possible limitation on petitioner's Exhibits 5 and 6; petitioner did not ask the Court to limit its consideration of Exhibit 7. Moreover, at the end of the colloquy the Court stated: “All right, I'll do it through the filing date.” ( Id.) The Court is not inclined to reconsider this ruling and will consider all admissible evidence up until the filing date.
The note in question is admitted to show the worker's efforts, and not to prove the truth of the matter asserted by the United Bronx Parent staff.
l. Page 92, Event Date 7/31/12, Entry Date 8/4/12.
The respondent objects to this note on the ground that it contains the hearsay statement of the foster mother concerning the reason the biological mother could not attend a case conference. Petitioner has agreed to redact that portion of the note containing the foster mother's statement. B. Hearsay Objections to Documents Contained Within Pet. Ex. 5 and 6 1. Bendiner & Schlesinger Reports
Respondent first objects to the inclusion within Exhibits 5 and 6 of toxicology reports created by the Bendiner & Schlesinger medical laboratory. (Napoli Affirm ¶¶ 6 (Ex. 5) and 24 (Ex. 6).) Her counsel argues that even if witnesses from Arms Acres and United Bronx Parents were to testify, they could not provide the necessary foundation regarding the independent laboratory's business practices. ( Id. ¶ 13.) However, § 4518 and the law interpreting it do not require the proferring party to establish the methodologies by which certain records of a business are generated. All that is required is to establish the record-keeping practices of the entity in question. As the statute states, “All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility.” C.P.L.R. § 4518(a).
However, it cannot be presumed that the Bendiner & Schlesinger records themselves meet the foundational requirements of the statute. This must be established by a witness or through other appropriate means (such as a delegation and certification of the laboratory's own records). Brown, 13 NY3d at 341.
Respondent's only citation other than the statute is to People v. Kennedy, 68 N.Y.2d 569 (1986), but that case does not support her argument. In Kennedy the court held that the testimony of an expert in loan sharking was insufficient to provide a foundation for the admission into evidence of the business records of a particular loan shark, as the expert was not familiar with the specific business in question; the court did not hold that a non-employee could never provide the necessary § 4518 foundation. And indeed, as noted above, 23 years after Kennedy the Court of Appeals quite explicitly held that the requisite foundation for a business's records could be established by someone not employed by that business. Brown, 13 NY3d at 341.
Therefore, before the Court will consider the Bendiner & Schlesinger reports contained within Exhibits 5 and 6, the petitioner must produce a witness or other evidence to meet the foundational requirements of § 4518, though the witness need not be an employee of Bendiner & Schlesinger. Moreover, even though the Bendiner & Schlesinger records appear within the business records of two separate entities, Arms Acres and United Bronx Parents, only one witness will be required to establish the § 4518 foundation. If one witness-whether from Arms Acres, United Bronx Parents, St. Dominic's Home, or any other similar agency-testifies that 1) he or she is familiar with the business record practices of Bendiner & Schlesinger; 2) he or she generally relies upon such records in the course of his or her business working with individuals suffering from drug addiction; 3) the record was made in the regular course of business; 4) it was in the regular course of business to make such record; and 5) the record was made contemporaneously with the relevant event, then the Court will accept into evidence all the Bendiner & Schlesinger reports contained within Exhibits 5 and 6.
As noted in this decision, and as explained in Brown, the petitioner need not call a witness from Bendiner & Schlesinger in order to lay the required foundation. If petitioner does choose to call a witness from Bendiner & Schlesinger (as opposed to a witness from Arms Acres or another agency), the witness need only address items 3, 4, and 5, as the documents at that point would be offered as business records of Bendiner & Schlesinger as opposed to Bendiner & Schlesinger documents contained within another firm's records. Another option for petitioner would be to submit a set of Bendiner & Schlesinger drug test results that are delegated and certified pursuant to § 4518(c).
The Court will certainly not impose a higher standard of reliability on drug test results than is applied by professionals who are in the business of providing drug treatment. Rodriguez, 276 A.D.2d at 771. These professionals make decisions every day about what interventions and therapies their clients require. They determine what level of intensity the clients require, such as inpatient versus outpatient treatment. They decide whether to discharge their clients from their programs due to non-compliance, and whether or not to report this information to probation officers, foster care agencies, or other authorities who may be monitoring the clients' progress. If the petitioner here produces a witness who can testify that in the “usual course” of making these decisions in the drug treatment business, drug treatment professionals rely on the sort of drug test results as are contained in the Bendiner & Schlesinger reports, then it would be the height of pedantry for the Court to insist that these reports do not meet the threshold requirements of reliability required by § 4518 for them to be entered into evidence. Johnson, 253 N.Y. at 129.
What weight to give these documents is another matter.
2. Other Documents Within Exhibit 6
Respondent also objects to an assortment of documents contained within Exhibit 6 on the ground that they are not actually business records of United Bronx Parents and that, consequently, the delegation and certification of Exhibit 6 as business records of United Bronx Parents does not apply to them, making them inadmissible hearsay. (Napoli Affirm. ¶ 25.) Counsel indicates that his objection is “including but not limited to” seven specific documents.
First, it should be noted that Exhibit 6 is several hundred pages in length. Second, objections to evidence must be specific in order for the Court to rule. While the proferring party always bears the burden of establishing the admissibility of its evidence, and while the Court always has the responsibility to exclude inadmissible evidence even if there is no objection raised, counsel's failure to specify what portions of the proferred exhibits (other than the seven enumerated items) is unfair to the petitioner and the attorney for the child, who do not know how to respond. However, the Court notes that neither petitioner's counsel nor the attorney for the child responded at all to the objections raised in Napoli Affirmation ¶ 25, even the seven enumerated documents.
The Court has endeavored to identify all documents contained within Exhibit 6 that, on their face, appear to have been created by an entity other than United Bronx Parents. The Court will rule on the admissibility of each. They are listed below in the order in which they appear within Exhibit 6; those that are on respondent's list of enumerated objections are so indicated.
The Court agrees with respondent that on their face, these documents should be excluded as they appear to fall squarely within the Standard Textile rule that the “mere filing” by one business of another's records is insufficient to qualify them under § 4518. 80 A.D.2d at 911. At a minimum, in order for each of these documents to be admissible as part of the United Bronx Parents records, the petitioner must produce a witness who is “familiar with the practices” of the entity that created them and the witness must be someone who “generally relies upon such records.” Brown, 13 NY3d at 341.
a. HRA Conference Report dated 6/24/12.
This document appears to have been produced by the Family Independence Administration of HRA and relates to job search assistance. However, the document itself is mostly illegible to the Court, and it is unclear in any event what reliance a drug treatment program such as United Bronx Parents could place on such a document. Absent a foundation established by a witness as described above, the document is excluded.
b.Notice of Eviction, 2305 Sedwick Realty LLC v. Maribel A., Bronx Civil Court index no. 5688/12.
This document is dated August 10, 2012, which is after the filing date of the petitions, and it will not be considered for that reason.
c. Authorization of Release of Information from Vida Guidance Center.
This is a two page document signed by Ms. A. authorizing her therapist at Vida Guidance Center to speak to her substance abuse counselor at Mrs. A's Place about her “status of drug use.” Mrs. A's Place is a program of United Bronx Parents and for that reason, it appears that this document is admissible as part of Exhibit 6 generally.
d. HRA Petition for Emergency Assistance dated 5/2/12.
This document appears to have been produced by the Family Independence Administration of HRA and relates to a request for emergency assistance to pay a Con Ed bill. The form is in Spanish while the information completed in handwriting is in English. It is unclear in any event what reliance a drug treatment program such as United Bronx Parents could place on such a document. Absent a foundation established by a witness as described above, the document is excluded.
e. St. Dominic's Family Team Conference Summary, dated March 13, 2012 (specifically identified by respondent's counsel).
The list of attendees said to have been present for this FTC does not include anyone from United Bronx Parents. It appears to be a record of St. Dominic's Home and it is currently without proper § 4518 foundation. Absent a foundation established by a witness as described above, the document is excluded.
f. Bronx VESID Orientation Appointment for April 4, 2012.
This is an appointment slip for Ms. A. to attend an orientation appointment at Bronx VESID. It is unclear what reliance a drug treatment program such as United Bronx Parents could place on such a document. Absent a foundation established by a witness as described above, the document is excluded.
g. Letter from Human Resources Administration/Tremont/Crotona Job Center, to Ms. A., dated February 13, 2012, regarding the BEGIN program.
Respondent's counsel's list of objected-to documents included an item described as “Tremont/Crotona Job Center document, not dated.” The Court was unable to locate such a document. However, respondent's counsel did not include the February 13, 2012, letter from Tremont/Crotona to his client, which contained, as a one-page attachment, an “Employability Plan.” The Court construes this letter and attachment to be the document referred to by counsel.
This is a referral letter for Ms. A. to attend the “BEGIN Managed Programs.” It is unclear what reliance a drug treatment program such as United Bronx Parents could place on such a document. Absent a foundation established by a witness as described above, the document is excluded.
h.Court endorsement in 2305 Sedwick Realty LLC v. Maribel A., Bronx Civil Court index no. 5688/12, dated February 10, 2012.
The endorsement states that the case is adjourned to March 6, 2012, for Ms. A. to obtain counsel. The document is stricken as being irrelevant to the current proceeding.
i. Ms. A.'s certificate of completion of parenting classes at Alianza Dominicana, Inc., dated December 15, 2011.
It is possible that United Bronx Parents could rely on a document of this nature in the ordinary course of its business providing drug treatment services. However, absent a foundation established by a witness as described above, the document is excluded.
j. The Vida Guidance Center, Comunlife, dated November 24, 2011 (specifically identified by respondent's counsel).
Respondent's counsel does not identify the document with any particularity other than the date. The Court has been unable to find a document that appears to be created by or related to the Vida Guidance Center, Comunlife, with the date of November 24, 2011. The Court did locate a document on this entity's letterhead entitled “Emergency Service Procedures During Non–Business Hours,” which is excluded for lack of relevance.
k. St. Dominic's letter dated October 25, 2011 (specifically identified by respondent's counsel).
This is a referral for Ms. A. from St. Dominic's Home to Bendiner & Schlesinger for drug screening. It is obvious from the voluminous drug screening results produced by Bendiner & Schlesinger that are also the subject of respondent's motion that she participated in many drug tests by that firm. The document is excluded as not relevant.
l. Bureau of Eligibility Verification Review (HRA) document dated October 11, 2011 (specifically identified by respondent's counsel).
This is a notice to Ms. A. that her case has been selected for a Bureau of Eligibility Verification review, to take place in Brooklyn on October 20, 2011. It is unclear what reliance a drug treatment program such as United Bronx Parents could place on such a document. Absent a foundation established by a witness as described above, the document is excluded.
m. Letter from St. Dominic's dated August 10, 2011 (specifically identified by respondent's counsel).
This document is actually a referral from St. Dominic's to United Bronx Parents for Ms. A. to begin drug treatment. There has already been testimony from the St. Dominic's worker that she referred Ms. A. to United Bronx Parents for substance abuse treatment (3/28/13 Tr. at 68) and it seems beyond dispute that a drug treatment agency would rely on a referral from a foster care agency when enrolling a parent in its program. No further foundation is necessary and this document is admitted into evidence.
n. Client Toxicology Log dated December 1, 2012 (specifically identified by respondent's counsel).
The Court could not find a toxicology log dated December 1, 2012. The Court did find a log that contains entries from May 9, 2012 through October 9, 2012. The Court will only consider entries up to the filing date of the petitions; the rest are excluded.
C. Objection to Documents Dated After the Filing Date of the Petition
Respondent objects to a variety of documents contained within Pet. Ex. 6 that post-date the filing date of the instant petitions, August 3, 2012. (Napoli Affirm. ¶¶ 21–22.) Petitioner's counsel stated on the record on the first trial date that he was not relying on any portion of any of his proffered exhibits that may go beyond the filing date, and the Court indicated that it would not consider any such portions. (3/28/13 Tr. at 8.) The attorney for the children did not argue otherwise, though in her response affirmation, she argues that documents dated after August 3, 2012, that “relate back to the main issue before the Court,” without specifying which portions meet this standard, should be admitted and considered. (Whatley Affirm. ¶ 6.) Insofar as the party proffering the exhibit in question does not rely on any portion dated after August 2, 2012, the Court will not consider such portions Thus, this objection is moot, as it has been stipulated to.
The Court will not comb through the exhibit at this time to exclude items dated after August 3, 2012, but will exclude any such documents from its consideration of the case.
D. Request for Missing Witness Inference
Insofar as the petitioner has not yet rested its case, the request for a missing witness inference is premature, and is denied.
IV. Conclusion
For the foregoing reasons, respondent's motion is granted in part and denied in part, as set forth above.
IT IS HEREBY ORDERED:
Regarding Exhibit 7, petitioner's counsel is directed to submit a new version of the exhibit containing the redaction of the note appearing on Page 92, Event Date 7/31/12, Entry Date 8/4/12, as stipulated to in his pleading.
Additionally, the Court notes that the original version of Exhibit 7 contained redactions that were not properly made. The document contains a thin ballpoint strike-through of those portions counsel sought to redact. Insofar as the entries that are crossed-out are entirely legible, these are not proper redactions. Redactions should be made with a thick, black, non-transparent marker so that they cannot be read.
Thus, when petitioner's counsel submits his new version of the exhibit, which the court will mark and admit into evidence as Petitioner's Exhibit 7A, he should properly redact all the entries that were redacted in the original version. The original version of Exhibit 7 will be stricken from the record and not considered by the Court, though it will be maintained in the Court file for the purposes of appellate review.
The Court will mark, with yellow adhesive “flags,” the specific pages within Exhibits 5 and 6 that have been ruled inadmissible pending the laying of proper foundation as set forth in this decision. The Court will mark, with green adhesive flags, the specific pages that respondent sought to exclude but which the Court has ruled admissible. The Court will mark, with red adhesive flags, those portions of the exhibits that are being stricken. Once the petitioner rests, the Court will add a red or green flag to all the documents marked with a yellow flag, so that there is a complete visual record of the objections and rulings on all of these documents. The flags will remain in place so that counsel may inspect the exhibits at any time, and for the purpose of appellate review.
The next scheduled dates for the fact-finding are May 6 and 7. In light of this ruling, if petitioner will not be ready to proceed on those dates, counsel should notify the court attorney immediately so that the matter may be rescheduled.