St. Lawrence Cnty. Dep't of Soc. Servs. v. Leon RR (In re Leon RR)

• Decision Date: 23 October 1979
• Citation: 48 N.Y.2d 117
• Parties: In the Matter of LEON RR, Alleged to be a Permanently Neglected Child. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondents; v. LEON RR et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

48 N.Y.2d 117

In the Matter of LEON RR, Alleged to be a Permanently Neglected Child.

ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondents; v. LEON RR et al., Appellants.

Court of Appeals of the State of New York

Argued September 11, 1979

October 23, 1979

POINTS OF COUNSEL

A. Michael Gebo for appellants. I. The court erred in admitting the complete case record of the Department of Social Services. (Matter of Bradley U, 55 AD2d 722; Johnson v Lutz, 253 NY 124; Williams v Alexander, 309 NY 283; Palmer v Hoffman, 318 US 109; Smith v Smith, 163 NY 168; Hayes v State of New York, 50 AD2d 693, 40 NY2d 1044; Kelly v Wasserman, 5 NY2d 425; Matter of Del Valle v Sugarman, 44 AD2d 523; Matter of Suzanne Y., 92 Misc 2d 652.) II. The evidence was not sufficient to establish that Leon, Jr., was permanently neglected within the meaning of the statute. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Klug, 32 AD2d 915; Matter of Orlando F., 40 NY2d 103; Matter of Raymond "M", 81 Misc 2d 70; Matter of Karas, 59 AD2d 1022; Matter of Joyce A. R., 52 AD2d 882; Matter of Sydney, 84 Misc 2d 932; Matter of Santosky, 89 Misc 2d 730.) III. There were not extraordinary circumstances which warrant the application of Matter of Bennett v Jeffreys. (Matter of Sanjivini K., 40 NY2d 1025, 63 AD2d 1021; Matter of Abbott House v Barbara J., 55 AD2d 604; Matter of Leticia Rose M., 54 AD2d 909; Matter of Suzanne Y., 92 Misc 2d 652, 66 AD2d 723; Matter of Corey L v Martin L, 45 NY2d 383; Stanley v Illinois, 405 US 645; Matter of Bennett v Marrow, 59 AD2d 492.)

Terrence J. Whelan and Ethan K. Phillips for respondent. I. Leon's case record was properly admitted into evidence as a business record under CPLR 4518 (subd [a]) in light of the fact that exclusion in toto, as requested by appellant's trial coun- sel, would have prevented the consideration of a wealth of clearly competent evidence and the Family Court made clear that it would not consider any inadmissible entries. (Matter of Del Valle v Sugarman, 44 AD2d 523; Neill v Jodum Cab Corp., 38 AD2d 562; Matter of Bradley U, 55 AD2d 722; Matter of "Male" G., 97 Misc 2d 283; Kelly v Wasserman, 5 NY2d 425; Chemical Leaman Tank Lines v Stevens, 21 AD2d 556; Toll v State of New York, 32 AD2d 47; Lichtenstein v Montefiore Hosp. & Med. Center, 56 AD2d 281; Johnson v Lutz, 253 NY 124; Hayes v State of New York, 50 AD2d 693.) II. Leon's parents failed "substantially and continuously", to plan for their child's future and such failure, standing alone, was sufficient to support a finding of permanent neglect. (Matter of Suzanne Y., 92 Misc 2d 652, 66 AD2d 723; Matter of Judy V., 60 AD2d 719; Matter of Orlando F., 40 NY2d 103.) III. Leon's prolonged separation from his natural parents requires a finding of "extraordinary circumstances" under Matter of Bennett v Jeffreys and dictates that the child's "best interests" be served by permanent termination of appellant's parental rights. (Matter of Corey L v Martin L, 45 NY2d 383; Matter of Suzanne N. Y., 66 AD2d 723; Matter of Benitez v Llano, 39 NY2d 758; Matter of Kim Marie J., 59 AD2d 716; Matter of Amy S., 89 Misc 2d 42; Matter of Sanjivini K., 53 AD2d 863.)

OPINION OF THE COURT

Chief Judge COOKE.

This is a proceeding to terminate parental rights instituted by petitioner St. Lawrence County Department of Social Services on the ground that respondents' youngest child, Leon, is permanently neglected (Social Services Law, § 384-b, subd 7). The threshold issue raised on the appeal concerns the propriety of the admission into evidence of the child's entire case file by petitioner as a business record over the objection of the natural parents. Ultimately, it must be determined whether petitioner proved, by a fair preponderance of the evidence, that respondents' future plans for the child were inadequate despite diligent efforts on the part of the agency to strengthen and encourage the parent-child relationship.

After fact-finding and dispositional hearings, Family Court granted the petition permanently terminating respondents' parental rights and directing that preference for Leon's adoption be given to his foster parents. A divided Appellate Divi- sion affirmed, conceding that while the evidence concerning the inadequacy of respondents' plans for the child was "less than overwhelming", the best interests of the child mandated that parental rights be terminated (66 AD2d 118, 122).

Reversal is required. The case file admitted by the court was replete with inadmissible hearsay which played a large part in the ultimate disposition of the case. Moreover, not only did petitioner fail to demonstrate the inadequacy of respondents' future plans for the child, but the record conclusively demonstrates that it had so aligned itself against the natural parents as to render its efforts, if that is what they might be termed, to reintegrate Leon into his natural family insufficient to satisfy its statutory burden.

At the age of 19 months, Leon, together with two older siblings, was removed from the custody of his parents in a neglect proceeding. With one minor interruption, Leon has remained with his present foster parents for some eight years although his brother and sister were returned to the natural parents in 1976. At that time, Family Court directed that petitioner develop a plan to reintegrate the child into his natural family.

That plan, developed with the aid of a clinical psychologist who had conducted perfunctory interviews with Leon and his parents, provided that respondents visit Leon for a brief period at the foster home every other week. Those visits were monitored by a caseworker to assess their impact on the child. Despite the rather stifling conditions imposed on the manner of these visits, respondents were eventually permitted to take the child on a number of short, unsupervised trips in their car and, on one occasion, bring him to their home for a six-hour period. At the suggestion of petitioner, respondents secured a more suitable home in which to rear their children and eliminated a number of problems which had resulted in the initial loss of custody. Again, at the suggestion of the petitioner, the natural parents underwent an evaluation of their relationship with Leon at a State hospital and, until transportation and other difficulties forced them to discontinue, attended Parent Effectiveness Training classes sponsored by a different agency.

From the onset of Leon's placement in the foster home in 1971, however, it was apparent that petitioner's primary concern was not in uniting the child with his family. Rather than attempting to encourage the relationship between parent and child, the agency fueled the foster parents' sincere, but misplaced, desire to adopt the child, even suggesting at one time that they file a permanent neglect petition with the department "backing them". Unsupervised visitation was discouraged on the basis of hearsay reports that Leon had become upset each time he saw his natural parents. Eventually, after a monitored visit in February, 1977, after which a psychologist concluded that Leon retained no affection for his natural parents, this permanent neglect proceeding was instituted.

At the fact-finding hearing, petitioner offered its entire case file on the child and his parents into evidence. Respondents' objection, that admission of these materials en masse would be severely prejudicial as they could very well contain damaging hearsay, was rejected by the court. The court indicated, however, that while the entire file would be received in evidence, it would disregard all matters which would not survive a hearsay challenge. This was error. That this facile practice cuts against the grain of our adversary system is obvious. But, more important, it raises a substantial probability of irreparable prejudice to a party's case for there is simply no way of gauging the subtle impact of inadmissible hearsay on even the most objective trier of fact. Nor is notice or an opportunity to respond afforded. These considerations are pointedly illustrated by this case in which the courts below placed strong reliance upon hearsay evidence to terminate respondents' parental rights.

Each report in the files and each of the statements contained in those reports were admissible only if they qualified as business records (CPLR 4518, subd [a]). To constitute a business record exception to the hearsay rule, the proponent of the record must first demonstrate that it was within the scope of the entrant's business duty to record the act, transaction or occurrence sought to be admitted. But this satisfies only half the test. In addition, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception (Johnson v Lutz, 253 NY 124, 128; Toll v State of New York, 32 AD2d 47, 50). Thus, not only must the entrant be under a business duty to record the event, but the informant must be under a contemporaneous business duty to report the occurrence to the entrant as well (Richardson, Evidence [10th ed—Prince], § 299). The reason underlying the business records exception fails and, hence, the statement is inadmissible hearsay if any of the participants in the chain is acting outside the scope of a business duty (Johnson v Lutz, supra).

In this case, petitioner was under a statutory duty to maintain a comprehensive case record for Leon containing reports of any transactions or occurrences relevant to his welfare (Social Services Law, § 372; 18 NYCRR 441.7 [a]), thus satisfying this aspect of the business records test (see Kelly v Wasserman, 5 NY2d 425, 429). Some of the entries in the case file were based on firsthand observations of Leon's caseworker which were recorded shortly after the occurrences, rendering them admissible. Many of the remaining entries, however, consisted of statements,...