Opinion
1247 CAF 18–01670
12-20-2019
In the MATTER OF CARL B., Jr. Monroe County Department of Human Services, Petitioner–Respondent; v. Crystale L., Respondent–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT. ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT.
ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND BANNISTER, 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 adjudicating her child to be permanently neglected and terminating her parental rights with respect to that child. The mother contends that a new fact-finding hearing is required because Family Court erred in admitting in evidence a report by an independent psychiatrist who examined the mother, and visitation notes prepared by the Society for the Protection of Children (SPC) that memorialized the mother's visitation appointments with the child. We reject that contention. Even assuming, arguendo, that the court erred in admitting the documents in evidence, we conclude that "[a]ny error in the admission of [those documents] is harmless because the result reached herein would have been the same even had such [documents] been excluded" ( Matter of Tyler W. [Stacey S.], 121 A.D.3d 1572, 1572–1573, 994 N.Y.S.2d 217 [4th Dept. 2014] [internal quotation marks omitted]; see Matter of Marino S., 100 N.Y.2d 361, 372, 763 N.Y.S.2d 796, 795 N.E.2d 21 [2003], cert denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714 [2003] ; Matter of Kyla E. [Stephanie F.], 126 A.D.3d 1385, 1386, 5 N.Y.S.3d 660 [4th Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605100 [2015] ). "There is no indication that the court considered, credited or relied upon inadmissible hearsay in reaching its determination" ( Matter of Merle C.C., 222 A.D.2d 1061, 1062, 636 N.Y.S.2d 519 [4th Dept. 1995], lv. denied 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667 N.E.2d 339 [1996] ), including the psychiatrist's report and the SPC notes at issue here (cf. Matter of Chloe W. [Amy W.], 137 A.D.3d 1684, 1685, 28 N.Y.S.3d 201 [4th Dept. 2016] ). In addition, even without reference to those documents, the clear and convincing proof presented at the fact-finding hearing established the mother's permanent neglect of the child (see Matter of Chloe W. [Amy W.], 148 A.D.3d 1672, 1674, 49 N.Y.S.3d 595 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2683455 [2017] ; see also Matter of Ramel Anthony S. [Canita G.], 124 A.D.3d 445, 445, 1 N.Y.S.3d 68 [1st Dept. 2015] ).
We further conclude that the court did not abuse its discretion in denying the mother's request for a suspended judgment. Contrary to the mother's contention, we conclude that "the record supports the court's determination that termination of [the mother's] parental rights is in the best interests of the child, and that a suspended judgment was not warranted under the circumstances inasmuch as any progress made by the mother prior to the dispositional determination was insufficient to warrant any further prolongation of the child's unsettled familial status" ( Matter of Kendalle K. [Corin K.], 144 A.D.3d 1670, 1672, 41 N.Y.S.3d 832 [4th Dept. 2016] ; see Matter of Cyle F. [Alexander F.], 155 A.D.3d 1626, 1627–1628, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487 [2018] ; Matter of Valentina M.S. [Darrell W.], 154 A.D.3d 1309, 1311, 63 N.Y.S.3d 625 [4th Dept. 2017] ).