Matter of Andreija E. (Michael E.)

[*1] Matter of Andreija E. (Michael E.) 2019 NY Slip Op 29374 Decided on December 9, 2019 Family Court, Montgomery County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 9, 2019
Family Court, Montgomery County

In the Matter of Andreija E., A Child Under Eighteen Years of Age Alleged to be Abused, Severely Abused, Repeatedly Abused, and Neglected by Michael E., Respondent.



12093



Adam G. Giangreco, Esq., Montgomery County Department of Social Services Attorney, Fonda, New York, for Petitioner.

Carol R. Stiglmeier, Esq., Albany, New York, for the Respondent.

Christopher Savino, Esq., Schenectady, New York, Attorney for Child.
Richard B. Meyer, J.

Application by the petitioner for the issuance of an order requiring the respondent and attorney for the child to show cause why the Montgomery County Department of Social Services child protective services investigative progress notes should not be admitted into evidence in toto as a business record under CPLR R4518.

This Court has considered the papers submitted, consisting of the affirmation of Adam G. Giangreco, Esq. dated October 22, 2019, to which is attached a copy of the subject progress notes containing the certification of Commissioner McMahon, and a memorandum of law of the same date. The Department contends that copies of the child protective services' progress notes, certified by the Commissioner of Social Services as having been made in the regular course of business under a duty to make such records and "at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR R4518) are admissible in evidence. The progress notes at issue contain not only notations by caseworkers made upon their own personal knowledge but also information and statements provided by outside third parties. On the second day of the fact-finding hearing, October 4, 2019, a copy of the 2016 progress notes was furnished to the respondent's counsel and the Department sought to introduce those notes, certified by the Commissioner, into evidence as a business record (CPLR R4518). Three caseworkers testified [*2]that day but none could testify that all the notes were contemporaneously made. This Court sustained the respondent's objection to receiving the notes into evidence. On October 16, 2019, the third day of the fact-finding hearing, the Department furnished the respondent's counsel with a copy of the 2018 progress notes certified by the Commissioner and again unsuccessfully moved to have those notes received into evidence. The Department now seeks the issuance of an order directing the respondent and the attorney for the child to show cause why the certified records should not be admitted into evidence. For the reasons that follow, the application must be denied.

The admission into evidence of a child protective services case record requires more of a foundation than just the mere certification by the Commissioner or other authorized departmental official "that it was made in the regular course of [the department's] business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR R4518; see Matter of Leon RR, 48 NY2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979]). One of two additional requirements must be met before such records may be admitted into evidence as a business record under CPLR R4518.

First, the Department must show that any information or statement from an outside third party contained in each progress note "falls within its own independent hearsay exception or qualifies as relevant nonhearsay" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4518:1, p. 441; Matter of Leon RR, supra). "More than 85 years ago, in Johnson v. Lutz, 253 NY 124, 170 N.E. 517 (1930), this Court imposed an additional requirement for admissibility that is not set forth in the statute—specifically, that '[u]nless some other hearsay exception is available . . . , admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant' (Matter of Leon RR, 48 NY2d 117, 123, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979]; see Cover v. Cohen, 61 NY2d 261, 274, 473 N.Y.S.2d 378, 461 N.E.2d 864 [1984]; Johnson v. Lutz, 253 NY 124, 127-128, 170 N.E. 517 [1930]; see also Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4518:1; Jerome Prince, Richardson on Evidence §8—307 [Farrell 11th ed. 1995])." (People v. Patterson, 28 NY3d 544, 46 N.Y.S.3d 511, 68 N.E.3d 1242 [2016]). The reasons underlying this requirement are explained in Matter of Leon RR (48 NY2d at 122-123, 397 N.E.2d at 377-378, 421 N.Y.S.2d at 866-867):

"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, 170 N.E. 517, 518; Toll v. State of New York, 32 AD2d 47, 50, 299 N.Y.S.2d 589, 592). 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 [*3]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, 185 N.Y.S.2d 538, 541, 158 N.E.2d 241, 243). 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, reports and even rumors made by persons under no business duty to report to petitioner. Especially in the context of this case, it is essential to emphasize that the mere fact that the recording of third-party statements by the caseworker might be routine, imports no guarantee of the truth, or even reliability, of those statements. To construe these statements as admissible simply because the caseworker is under a business duty to record would be to open the floodgates for the introduction of random, irresponsible material beyond the reach of the usual tests for accuracy cross-examination and impeachment of the declarant. Unless some other hearsay exception is available (Toll v. State of New York, supra), admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event, or condition and he is under a business duty to report it to the entrant (Johnson v. Lutz, supra ; cf. Model Code of Evidence, rule 514)."

The Department did not attempt at the fact-finding hearing to establish that none of the progress notes contained information or statements from third party outsiders or that the notations which did contain such information or statements had an independent hearsay or non-hearsay evidentiary basis for admission into evidence. Indeed, none of the three caseworkers who testified in this case on October 4, 2019, Kendall Lee, Shelbi Lewis and Bridgette Bonilla, testified that the progress notes were contemporaneously recorded, a necessary prerequisite for admission of business records under CPLR R4518 (see, Standard Textile Co. v. Nat'l Equip. Rental, Ltd., 80 AD2d 911, 437 N.Y.S.2d 398, 399 [2d Dept., 1981][letter dated 8 months after purported delivery not contemporaneous]; Matter of Cyle F., 155 AD3d 1626, 64 N.Y.S.3d 842 [4th Dept., 2017], lv. denied 30 NY3d 911, 71 N.Y.S.2d 5, 94 N.E.3d 487 [2018]). The present application similarly contains no factual or conclusory allegations which would satisfy this foundational requirement for admissibility of the progress notes.

The second, and alternative, additional requirement for admissibility, consists of affording the opponent "fundamental fairness" by giving "notice and an opportunity to examine the file prior to the hearing (cf. Richardson v. Perales, 402 U.S. 389, 404-405, 91 S. Ct. 1420, 28 L.Ed.2d 842) * * * sufficiently far in advance of trial to allow the opponent an opportunity to investigate (Meyer, Should Notice be a Prerequisite to Use of Prima Facie Evidence, 19 N.Y.L.F. 785, 788-790)" (Matter of Leon RR, supra, at 124, 421 N.Y.S.2d at 867, 397 N.E.2d at 378). Providing a copy of the record "far in advance of trial" furnishes an opponent with a "real opportunity to ascertain the respective business duties of the entrant and declarant, to examine [*4]those persons concerning the circumstances surrounding the entry and to introduce evidence to rebut the statements contained in the file." (Matter of Leon RR, supra. at 123, 421 N.Y.S.2d at 867, 397 N.E.2d at 378). Although the Department's application here relies upon this exception as it has subsequently been applied (see, Matter of Melanie Ruth JJ, 76 AD2d 1008, 1009, 429 N.Y.S.2d 773, 775 [3d Dept., 1980]; Matter of Lisa Ann U, 75 AD2d 944, 427 N.Y.S.2d 994, 995 [3d Dept., 1980], rev'd sub nom. Matter of Lisa Ann U., 52 NY2d 1055, 438 N.Y.S.2d 514, 420 N.E.2d 395 [1981]; In re R., 264 AD2d 423, 694 N.Y.S.2d 126 [1st Dept., 1999[; In re Jonathan R., 30 AD3d 426, 817 N.Y.S.2d 335 [2d Dept., 2006]), it has not acted with "fundamental fairness' in this case. The progress notes were not furnished to other counsel "far in advance" of the fact-finding hearing. In paragraph 13 of his affirmation supporting the application, the Department's attorney admits that "[r]espondent was provided copies of the case notes on October 4th (2106 case notes) and October 16th (2018 case notes)". The three caseworkers all testified on October 4, 2019, and on that date only the 2016 progress notes were furnished to the respondent's counsel. The 2018 notes were not furnished until the October 16, 2019 fact-finding hearing. This did not afford the respondent's counsel an adequate or reasonable opportunity to investigate and obtain evidence, if any, to rebut the third-party statements and information in the notes. Moreover, the ability of the respondent's counsel to cross-examine the witnesses was severely inhibited, if not effectively precluded, as to the third-party information and statements in the notes.

Absent meeting the foundational requirements, "the admission of the entire case file, standing alone, [would be] sufficient to warrant reversal" of any determination of this Court adverse to the respondent "given the magnitude of the rights involved" (Matter of Leon RR, supra, at 124, 421 N.Y.S.2d at 867, 397 N.E.2d at 378). By "interposing itself between parent and child, the State not only involves itself in one of the most delicate of societal relationships, but treads on sensitive constitutional ground as well. (Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed. 1070; cf. Matter of Hofbauer, 47 NY2d 648, 419 N.Y.S.2d 936, 393 N.E.2d 1009) * * * [because] parents who are fit to raise their child are constitutionally entitled to do so (Stanley v. Illinois, 405 U.S. 645, 657-658, 92 S. Ct. 1208, 31 L.Ed.2d 551)." (id.). Thus, more than a mere certification of child protective services case records is required to be shown before those records may be admitted into evidence.

For the foregoing reasons, the application therefore must be and hereby is denied, and no order to show cause shall issue.

It is so ordered.

Dated: December 9, 2019

Richard B. Meyer, J.F.C.