Opinion
1343 CAF 17–01749
03-15-2019
In the MATTER OF ZACKERY S. Monroe County Department of Human Services, Petitioner–Respondent; v. Stephanie S., Respondent–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (CAROL L. EISENMAN OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the 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 order that, inter alia, placed her under the supervision of petitioner based on a finding that, as a result of her mental illness, she neglected the subject child. We affirm.
Initially, we reject the mother's contention that Family Court erred in admitting in evidence certain hearsay statements in her hospital records, which were generated following a mental hygiene arrest of the mother during the relevant time period. "Hospital records fall within the business records exception when they reflect[ ] acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of ... [the particular patient's] hospitalization" ( People v. Ortega , 15 N.Y.3d 610, 617, 917 N.Y.S.2d 1, 942 N.E.2d 210 [2010] [internal quotation marks omitted]; see CPLR 4518[a] ; Matter of Christopher D.B. [Lorraine H.] , 157 A.D.3d 944, 947–948, 69 N.Y.S.3d 719 [2d Dept. 2018] ). Here, the mother's hospital records contain information concerning how and why she was taken to the hospital and, due to her refusal or inability to inform hospital personnel of what had occurred, that information was required for an understanding of her condition. Thus, "the statements in the hospital records were properly admitted both because they related to diagnosis and treatment and thus were ‘admissible as an exception to the hearsay rule’ ..., and because they had the requisite indicia of reliability" ( People v. Emanuel , 89 A.D.3d 1481, 1482, 932 N.Y.S.2d 658 [4th Dept. 2011], lv denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ). In any event, even assuming, arguendo, that the court erred in admitting certain parts of the records, we conclude that any such error is harmless because, "even if those records are excluded from consideration, the finding of neglect is nonetheless supported by a preponderance of the credible evidence" ( Matter of Lyndon S. [Hillary S.] , 163 A.D.3d 1432, 1433, 80 N.Y.S.3d 821 [4th Dept. 2018] ).
Contrary to the mother's further contention, we conclude that petitioner established by a preponderance of the evidence that the subject child was neglected as a result of the mother's mental illness (see Matter of Thomas B. [Calla B.] , 139 A.D.3d 1402, 1403–1404, 31 N.Y.S.3d 381 [4th Dept. 2016] ; see generally Family Court Act §§ 1012[f][i][B] ; 1046[b][i]; Nicholson v. Scoppetta , 3 N.Y.3d 357, 368–369, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ). The evidence at the hearing established that the mother engaged in " ‘bizarre and paranoid behavior’ " that placed the subject child's physical, mental, or emotional condition in imminent danger of becoming impaired ( Matter of Christy S. v. Phonesavanh S. , 108 A.D.3d 1207, 1208, 970 N.Y.S.2d 340 [4th Dept. 2013] ; see generally Matter of Alexis H. [Jennifer T.] , 90 A.D.3d 1679, 1680, 936 N.Y.S.2d 823 [4th Dept. 2011], lv denied 18 N.Y.3d 810, 2012 WL 1085530[2012] ; Matter of Senator NN. , 11 A.D.3d 771, 772, 783 N.Y.S.2d 105 [3d Dept. 2004] ). In addition, contrary to the mother's contention that the evidence is legally insufficient because the child did not suffer an actual injury, only "near or impending" injury or impairment is required ( Nicholson , 3 N.Y.3d at 369, 787 N.Y.S.2d 196, 820 N.E.2d 840 ), and such impending injury was established here.