Erie Cnty. Dep't of Soc. Servs. v. David A.S. (In re Shirley A.S.)

• Decision Date: 30 December 2011
• Citation: 90 A.D.3d 1655,936 N.Y.S.2d 825,2011 N.Y. Slip Op. 09721
• Parties: In the Matter of SHIRLEY A.S.Erie County Department of Social Services, Petitioner–Respondent;David A.S., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09721

90 A.D.3d 1655

936 N.Y.S.2d 825

In the Matter of SHIRLEY A.S.Erie County Department of Social Services, Petitioner–Respondent;David A.S., Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2011.

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.

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.

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 A.D.3d 1400, 1401, 898 N.Y.S.2d 742), 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 A.D.3d 1544, 934 N.Y.S.2d 278), 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 Law § 384–b ( see Matter of Department of Social Servs. v. Waleska M., 195 A.D.2d 507, 510, 600 N.Y.S.2d 464, lv. denied 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591). In any event, the records were properly certified pursuant to CPLR 4518 ( see generally Matter of Leon RR, 48 N.Y.2d 117, 122–123, 421 N.Y.S.2d 863, 397 N.E.2d 374). 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...