SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1339
CAF 13-01941
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
IN THE MATTER OF BENTLEIGH O.
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HERKIMER COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;
JACQUELINE O., RESPONDENT-APPELLANT,
AND TINA S., RESPONDENT.
TRACY L. PUGLIESE, CLINTON, FOR RESPONDENT-APPELLANT.
JACQUELYN M. ASNOE, HERKIMER, FOR PETITIONER-RESPONDENT.
JOSEPH M. CIRILLO, ATTORNEY FOR THE CHILD, MOHAWK.
Appeal from an order of the Family Court, Herkimer County (John
J. Brennan, J.), entered September 25, 2013 in a proceeding pursuant
to Family Court Act article 10. The order determined the subject
child to be abused and neglected.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order adjudicating
her child to be an abused and neglected child. After the child was
hospitalized for, inter alia, multiple rib fractures, a partially
collapsed lung, and eye and ear injuries, petitioner commenced this
proceeding alleging that the mother was responsible for the injuries.
At the fact-finding hearing, Family Court admitted in evidence, over
the mother’s objection, medical records from the child’s treatment at
two hospitals.
As petitioner and the Attorney for the Child concede, the court
admitted the medical records in evidence without a proper
certification as required by Family Court Act § 1046 (a) (iv) (see
Matter of Kadyn J. [Kelly M.H.], 109 AD3d 1158, 1159; Matter of John
QQ., 19 AD3d 754, 755-756). That statute provides that, where
certification of medical records is completed “by someone other than
the head of the hospital[,] . . . [it] shall be accompanied by a
photocopy of a delegation of authority signed by both the head of the
hospital . . . and by such other employee” (§ 1046 [a] [iv] [emphasis
added]; see John QQ., 19 AD3d at 755-756). Here, the certification
was not accompanied by the necessary delegation of authority and,
thus, the court erred in admitting the medical records in evidence.
-2- 1339
CAF 13-01941
Under the circumstances, however, we deem the court’s evidentiary
error to be harmless (see Matter of Arianna M. [Brian M.], 105 AD3d
1401, 1401-1402, lv denied 21 NY3d 862; see generally Palmer v Wright
& Kremers, 62 AD2d 1170, 1171). Even excluding the medical records
from consideration, we conclude that the court’s finding of abuse is
supported by a preponderance of the evidence in the record (see Family
Ct Act § 1046 [b] [i]; Arianna M., 105 AD3d at 1401). The record
contains detailed testimony from the two treating physicians who
examined the child at each hospital and described the child’s
extensive injuries. Moreover, other testimony established that the
mother twice forcibly squeezed the child’s chest, which was consistent
with the nonaccidental nature of the child’s injuries (see Matter of
Eric CC., 237 AD2d 655, 656-657). Also, inasmuch as the mother
declined to testify, “the court [was] permitted to draw the strongest
possible negative inference” against her (Matter of Jasmine A., 18
AD3d 546, 548; see Matter of Kennedie M. [Douglas M.], 89 AD3d 1544,
1545, lv denied 18 NY3d 808).
Finally, we reject the mother’s contention that she was denied
effective assistance of counsel. “It is axiomatic that[,] because the
potential consequences are so drastic, the Family Court Act affords
protections equivalent to the constitutional standard of effective
assistance of counsel afforded defendants in criminal proceedings”
(Matter of Kelsey R.K. [John J.K.], 113 AD3d 1139, 1140, lv denied 22
NY3d 866 [internal quotation marks omitted]). Here, “the record
establishes that, viewed in the totality of the proceedings, [the
mother] received meaningful representation” (Matter of Jeffrey V., 82
NY2d 121, 126; see Matter of Shannon F., 121 AD3d 1595, 1596, lv
denied ___ NY3d ___ [Jan. 8, 2015]).
Entered: February 6, 2015 Frances E. Cafarell
Clerk of the Court