In re Leon "RR" , 412 N.Y.S.2d 474 ( 1979 )

OPINION OF THE COURT

Mahoney, P. J.

Appellants’ youngest child, Leon, Jr., was removed from his parents’ custody, as were his older siblings, in a neglect proceeding, and he was placed in a foster home on February 11, 1971, at the age of 19 months. He has remained in the care of the foster parents since that date. In April of 1976 the older children were returned to the custody of their parents and petitioner was ordered to develop a plan to reintegrate Leon into his natural family. The plan so developed was based in part upon a report of Dr. Linda Rapp, a psychologist with the St. Lawrence County Community Services, who had interviewed Leon, his natural parents (appellants) and his foster parents. The plan called for initial one-hour visits every two weeks at the foster parents’ home. The purpose of these visits was to assess the child’s reaction with a view toward increasing the length of the visits, including visits to appellants’ home and eventually overnight stays, if all went well. In addition to numerous visits at the foster home, there were several unsupervised visits away from the foster home when appellants were allowed to take Leon with them on short trips in their car, and there was one extended, six-hour visit to appellants’ home on Christmas Eve, 1976. However, Leon became very upset following each visit and, accordingly, the plan was never carried through to fruition.

In May of 1976 Dr. Rapp interviewed Leon, appellants and the foster parents. She concluded that the child had established a very close attachment, in a parent-child manner, to his foster parents and had become severely detached from his natural parents. She also found, however, that appellants had retained an attachment to the child and that they were desirous of establishing a better relationship with him. Accordingly, she recommended the plan for reintegration. Nearly a year later, in March, 1977, Dr. Rapp visited appellants in their home while Leon was there. Based upon her observations, Dr. Rapp concluded that Leon continued to be detached from his natural parents, that there had been no strengthening of the parent-child bond and that, in fact, the child considered himself an integrated member of the foster family. She was of the opinion that any attempt to remove Leon from his foster parents and return him to his natural parents would result in substantial behavioral and, perhaps, emotional problems.

David Coran, a child psychologist with the St. Lawrence County Psychiatric Center, interviewed Leon, appellants and the foster parents in January, 1977. During the interview, Leon denied any affiliation with his natural family and indicated that he perceived his foster parents as his natural parents. Mr. Coran concluded that if the child were returned to his natural parents he would encounter behavioral and emotional problems in the future.

Following fact-finding and dispositional hearings on petitioner’s application to extend placement of Leon, Jr., and a petition for permanent termination of parental rights, Family Court terminated appellants’ parental rights and directed that preference for adoption be given to the foster parents. This appeal ensued.

Initially, appellants contend that the trial court erred in admitting into evidence the entire case record of the St. Lawrence County Department of Social Services. In our view, however, a majority of the entries in that record are admissible as business records pursuant to CPLR 4518 (subd [a]). Clearly, the department was under a legal duty to maintain the case record in question (Social Services Law, § 372; 18 NYCRR 470.7 [a] [1]), and, accordingly, such records constitute business records within the meaning of the statute (Kelly v Wasserman, 5 NY2d 425). Moreover, there is no evidence that the entries were not made within a reasonable time after the events recorded, and we, therefore, reject appellants’ contention that the records are inadmissible as not contemporaneous (cf. Toll v State of New York, 32 AD2d 47, 50, with Lichtenstein v Montefiore Hosp. & Med. Center, 56 AD2d 281, 285). Of course, in order to be admissible, it must appear that the persons supplying the information were under a business duty to impart such information to the person making the entry (Johnson v Lutz, 253 NY 124, 128), and we conclude that the department’s caseworkers and the foster parents were under such a duty. Entries which constitute admissions made by appellants to the caseworkers are also admissible (see Kelly v Wasserman, supra; Penn v Kirsch, 40 AD2d 814). Moreover, business entries containing statements by outsiders may be admissible to prove not the truth of the facts contained therein but that the statements were made (see Toll v State of New York, supra). Accordingly, a majority of the entries in the record in question are admissible pursuant to the above general principles, and as in Matter of Bradley U (55 AD2d 722), the trial court made it plain that objectionable material would not be considered in reaching a determination. Considering the volume and complexity of the case record, we perceive no error in the procedure followed by the trial court.

Turning to the merits, the statutory authority for terminating parental rights relied on by the court is contained in section 384-b of the Social Services Law, which authorizes termination of parental rights where the child is a permanently neglected child (Social Services Law, § 384-b, subd 4, par [b]). A permanently neglected child is defined as one whose parents have "failed for a period of more than one year 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.” (Social Services Law, § 384-b, subd 7, par [a].) It is clear from the record that appellants have not failed to maintain contact with Leon. On the contrary, the evidence establishes that appellants took every available opportunity to visit their child except when weather or car trouble interfered. The statute, however, is stated in the disjunctive and, thus, even though parents may maintain contact with their children, the failure to plan for the future of the children, in and of itself, suffices to support a determination of permanent neglect (Matter of Orlando F., 40 NY2d 103; Matter of Amos HH, 59 AD2d 795).

The planning required by the statute is simply the formulation of a feasible and realistic plan, and the particular facts and totality of circumstances of each case must be scrutinized to determine whether this requirement has been met (Matter of Orlando F., supra, pp 110-111). The trial court found that appellants "have shown no understanding whatsoever of this deeply troubled and emotionally upset little boy” and that, accordingly, their plans were inadequate. While the evidence on this issue is less than overwhelming, we conclude that considering the record in its entirety there is ample support for this finding despite the apparent good faith desire of appellants to have their son returned to them.

Next, appellants contend that the agency failed to make diligent efforts to encourage and strengthen the parental relationship as required by the statute. Without passing on the adequacy of the agency’s efforts, we conclude that any such failure would be excused based upon our conclusion as to the child’s best interests discussed hereafter (Social Services Law, § 384-b, subd 7, par [a]).

In Matter of Bennett v Jeffreys (40 NY2d 543, 549), the court held that unfortunate or involuntary extended disruption of custody is an extraordinary circumstance justifying intervention by the State in the right and responsibility of natural parents to the custody of their children, and upon a finding of such an extraordinary circumstance, the court may then proceed to inquire into the best interests of the child and to order a custodial disposition on that ground. In Matter of Sanjivini K. (40 NY2d 1025), the Court of Appeals directed that the rationale of Matter of Bennett v Jeffreys (supra) be applied to proceedings to terminate parental rights. Thus, the courts have held that there exists a common-law standard for termination of parental rights independent of the statutes (see Matter of Kim Marie J, 59 AD2d 716; Matter of Suzanne Y., 92 Misc 2d 652).

Here, Leon, Jr., who is now nine years of age, has been continuously absent from his parents’ custody since he was 19 months old. This constitutes an extraordinary circumstance justifying an inquiry as to the child’s best interests for the purpose of custodial disposition (Matter of Bennett v Jeffreys, 40 NY2d 543, supra). On the best interests issue, the expert evidence, as summarized above, overwhelmingly establishes that return of custody to appellants could have a substantial detrimental impact upon Leon, Jr., and we, therefore, conclude that the Family Court was justified in finding that the child’s best interests require permanent termination of appellants’ parental rights. Accordingly, the order should be affirmed.

We note that, contrary to the suggestion made by the dissent, the expert testimony herein did not pertain to the relative fitness of the natural parents vis-á-vis the foster parents, but rather it was directed solely to the mental and emotional impact upon Leon of further attempts to reintegrate him into his natural family. Moreover, while we agree that inadvertent adherence to expert opinion should be avoided, the Family Court’s determination herein that permanent termination of parental rights is in the child’s best interests was based upon the opinion of two experts that any further attempt to remove Leon from his foster parents would lead to substantial behavioral and emotional problems and upon other evidence, consistent with these opinions, regarding the effect on Leon of previous efforts at reintegration and the natural parents’ lack of understanding of the problem. A determination with such a substantial foundation of evidence in the record should not be overturned upon the assumption that "under different circumstances” Leon would want to join his natural parents and brothers and sisters despite a separation of nearly eight years.

The order should be affirmed, without costs.