In the Matter of SHANE " MM v. FAMILY AND CHILDREN SERVICES

• Decision Date: 18 December 2000
• Citation: 720 N.Y.S.2d 219
• Court: North Carolina Supreme Court
• Parties: Page 219 720 N.Y.S.2d 219 (A.D. 3 Dept. 2001) In the Matter of SHANE "MM", 1 Appellant, v. FAMILY AND CHILDREN SERVICES et al., Respondents. (And Another Related Proceeding.) 80021 SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT Calendar Date:

[Copyrighted Material Omitted]

Ira Pesserilo, Ithaca, for appellant.

Wiggins & Masson L.L.P. (Robin Abrahamson Masson of counsel), Ithaca, for Family and Children Services, Andrea Mooney, Law Guardian and Diane B. Withiam, Ithaca, for respondents.

Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.

Mugglin, J.

Appeal from an order of the Family Court of Tompkins County (Sherman, J.), entered January 11, 1996, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of his out-of-wedlock daughter and ordered that petitioner's consent to the adoption of the child is not required.

As a result of counseling with a social worker for respondent Family and Children Services (hereinafter F&CS), April "E"1 (hereinafter the mother) placed her out-of-wedlock daughter in a foster home. When the social worker contacted petitioner, the child's biological father, in Texas seeking his surrender of the child for adoption, he responded by coming to this State to pursue custody of his daughter. To that end, on June 15, 1995, petitioner commenced this custody proceeding in Family Court. Approximately one week later, a married couple petitioned Surrogate's Court for adoption of the child and later petitioned Family Court to intervene in the custody proceeding. They also sought an order dispensing with petitioner's consent to the adoption of his child. F&CS filed an answer in the custody proceeding and cross-petitioned for, inter alia, an order placing the child in its temporary custody and consolidation of the custody proceeding with the adoption proceeding.

Family Court's first fact-finding hearing resulted in an order, inter alia, granting temporary custody to F&CS, determining that a fact-finding hearing be held on the issue of sole custody, directing that petitioner undergo a psychiatric examination prior to that hearing and ordering supervised visitation for petitioner. At the conclusion of the second fact-finding hearing, Family Court, inter alia, denied petitioner's custody petition, found that petitioner's consent to the adoption was not required, ordered that the child remain in the custody of her prospective adoptive parents and vacated its previous order awarding temporary visitation to petitioner. Petitioner now appeals, asserting that four evidentiary rulings by Family Court in the course of these two hearings constitute reversible error.

While we agree that some error occurred, in the context of this case we perceive it to be harmless and therefore affirm. First, petitioner asserts that he was unable to effectively cross-examine F&CS's social worker and the mother about the content of counseling sessions because Family Court ruled that the social worker's notes were privileged pursuant to CPLR 4508 (a). This ruling was error since the social worker in question was not certified (see, Alexander, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 4508, at 14). Moreover, petitioner's failure to object after eliciting on cross-examination from the social worker that she was not certified is irrelevant (see, Marten v Eden Park Health Servs., 250 AD2d 44, 46-47), since F&CS, which asserted the privilege, did not establish its existence, but merely asserted it in blanket form (see, McCarthy v Klein, 238 AD2d 552, 554). Nevertheless, the error is harmless (see, CPLR 2002). The mother and social worker were testifying at the temporary custody hearing at which other evidence established petitioner's past convictions, his drug use, his involuntary commitment to a Colorado mental facility his suicide attempts and his severe mood swings. A review of this testimony establishes that it was clearly in the child's best interest to temporarily award custody to F&CS (see, Matter of Robert GG. v Kathleen HH., 273 AD2d 713).

Next, we disagree with petitioner that Family Court erred by not striking answers alleged to be unresponsive when the court allowed the social worker to expand her answer beyond the yes or no response that petitioner sought. The scope of cross-examination is a matter which lies within the discretion of the trial court (see, Matter of Mi-Kell V., 226 AD2d 810; Matter of Devanand S., 188 AD2d 533) and we perceive no abuse of discretion in this record nor prejudice to petitioner from the answers given.

Next, petitioner asserts that the admission into evidence of a text entitled "Diagnostic and Statistical Manual, Fourth Edition" during the testimony of respondent's psychiatrist in the first hearing was error as it was either irrelevant or impermissible bolstering of the testimony. Family Court admitted the text with the caveat that it would not rely on any portions of the text other than those portions dealing with the subject matter of the psychiatrist's testimony -- the characteristics of an antisocial personality. While medical texts are generally...