S., SHIRLEY ANN, MTR. OF ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1364
CAF 11-01027
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
IN THE MATTER OF SHIRLEY A.S.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
DAVID A.S., RESPONDENT-APPELLANT.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR SHIRLEY
A.S.
Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered January 25, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
transferred custody and guardianship of the subject child to
petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order terminating
his parental rights with respect to his child on the ground of
permanent neglect and transferring custody and guardianship of the
child to petitioner. The father failed to preserve for our review his
contention that the admission in evidence of his records from a drug
treatment facility violated 42 USC § 290dd-2, inasmuch as the father
failed to object on that ground. In any event, “absent evidence that
[the father] was treated by a facility ‘conducted, regulated, or
directly or indirectly assisted by any department or agency of the
United States,’ the federal statute does not apply” (L.T. v Teva
Pharms. USA, Inc., 71 AD3d 1400, 1401), and the father presented no
such evidence. In addition, such records are subject to disclosure in
neglect proceedings where, as here, there is “ ‘good cause’ ” for the
disclosure (Matter of Kennedie M., 89 AD3d 1544), which clearly exists
in this case.
We reject the father’s further contention that his drug treatment
records were inadmissible because they were not properly certified
pursuant to Family Court Act § 1046. That statute does not apply to
proceedings to terminate parental rights pursuant to Social Services
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CAF 11-01027
Law § 384-b (see Matter of Department of Social Servs. v Waleska M.,
195 AD2d 507, 510, lv denied 82 NY2d 660). In any event, the records
were properly certified pursuant to CPLR 4518 (see generally Matter of
Leon RR, 48 NY2d 117, 122-123). We also conclude that Family Court
properly admitted in evidence the family services progress notes
relating to the father and the child’s mother, whose parental rights
with respect to the child were also terminated. Petitioner properly
laid a foundation for the admission in evidence of those notes through
the testimony of its caseworker. Finally, contrary to the father’s
contention, we conclude that petitioner established “by clear and
convincing evidence that it . . . fulfilled its statutory duty to
exercise diligent efforts to strengthen the parent-child relationship
and to reunite the family” (Matter of Sheila G., 61 NY2d 368, 373).
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court