        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

545
CAF 14-01596
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF CARSON W.
--------------------------------------------
OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES,     MEMORANDUM AND ORDER
PETITIONER-APPELLANT;

JAMIE G. AND RYAN W., RESPONDENTS-RESPONDENTS.


NELSON LAW FIRM, MEXICO (LESLEY GERMANOW SCHMIDT OF COUNSEL), FOR
PETITIONER-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-RESPONDENT JAMIE G.

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF
COUNSEL), FOR RESPONDENT-RESPONDENT RYAN W.


     Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered August 27, 2014 in a proceeding pursuant to
Family Court Act article 10. The order returned the subject child to
the custody of respondents.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Oswego County, for further proceedings in
accordance with the following memorandum: Petitioner appeals from an
order pursuant to Family Court Act § 1089, following a permanency
hearing, which returned the subject child, Carson W., to the care and
custody of respondents. This Court granted petitioner’s motion,
supported by the Attorney for the Child (AFC), staying the order
pending appeal. We conclude that Family Court’s determination that
“there is no evidence that Carson will face the possibility of future
neglect or abuse while in [respondents’] care” is not supported by a
sound and substantial basis in the record (see generally Matter of
Hayley PP. [Christal PP.—Cindy QQ.], 77 AD3d 1133, 1134, lv denied 15
NY3d 716). Instead, we conclude that, although respondents have
completed certain counseling and parenting services, the record
establishes that no progress has been made to “ ‘overcome the specific
problems which led to the removal of the child’ ” (Matter of Kasja YY.
[Karin B.], 69 AD3d 1258, 1259, lv denied 14 NY3d 711).

     Petitioner commenced this Family Court Act article 10 proceeding
on November 26, 2013, alleging that two-month-old Carson and 14-month-
old Makynzie G. were severely abused children. The amended petition
alleged that, while in the care of respondent father, Makynzie
suffered a hypoxic brain injury, which was fatal. With respect to
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Carson, the amended petition alleged that a full skeletal bone scan
revealed that he had a spiral fracture of the upper left arm.
Following testimony of witnesses at a fact-finding hearing, which is
not included in this record as per the order settling the record on
appeal, respondents each admitted that Makynzie “suffered from a non-
accidental death” and that Carson sustained a broken arm in their
care, for which they have “no reasonable explanation.” At the time of
their admissions on June 2, 2014, the preliminary autopsy report
indicated that Makynzie’s death was the result of hypoxic-ischemic
encephalopathy after cardiac arrest, but the cause of the cardiac
arrest and the manner of death were “undetermined.” Based upon
respondents’ admissions, the children were determined to be abused
children and Carson was ultimately placed in the home of his paternal
grandmother, who supervised extensive daily visitation between
respondents and Carson. Pursuant to the dispositional order entered
July 2, 2014, respondents were required to participate in parent
educator services, individual counseling, and a psychosocial
assessment. It is undisputed that, at the time of the permanency
hearing on July 23, 2014, respondents had completed the ordered
services. Petitioner’s report indicated that the permanency goal was
“reunite with parents” and that discharge from placement within the
next six months was not anticipated. The report indicated that, in
order for respondents to be reunited with Carson, they must be able
“to verbalize responsibility in Carson’s injury.” We note that, at
the initial appearance for the permanency hearing, the court
encouraged petitioner to begin unsupervised visits, including
overnight visits, between the then-10-month-old child and respondents,
but petitioner refused to do so before a hearing was conducted.

     At the hearing, the children’s treating pediatrician testified
that he examined Carson after Makynzie’s death and that, although the
physical examination was normal, X rays revealed a “non-accidental, a
traumatic [spiral] fracture of his left humerus,” i.e., his upper arm.
The pediatrician referred Carson to a pediatric orthopedist who
determined that the spiral fracture occurred 2 to 3 weeks before the X
ray was taken, when Carson was approximately 1½ months old. The
pediatrician denied that the fracture could have occurred during the
birth process, which is the explanation for the fracture that
respondents provided as part of the psychosocial assessment. The
court refused to permit the pediatrician to testify, as not relevant,
to the contents of the amended autopsy report, which determined that
the cause of Makynzie’s death was “hypoxic ischemic encephalopathy due
to smothering.” The court stated, “We have admissions by both parents
that the child died” and that Carson sustained “an unexplained injury.
. . . [W]e’re here to plan for Carson’s future. Not retry the case.”
The court, however, permitted the caseworker to testify that the
amended autopsy report changed the cause of death from “undetermined”
to “homicide,” which the amended autopsy report states is “defined in
medical terms as death at the hands of another,” due to smothering.

     We agree with petitioner that the court erred in refusing to
admit in evidence the amended autopsy report and the records of the
pediatric orthopedist. Although those uncertified records constitute
hearsay evidence, evidence that is material and relevant is admissible
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                                                         CAF 14-01596

at a permanency hearing (see Family Ct Act § 1046 [c]; Matter of
Laelani B., 59 AD3d 880, 882; cf. § 1046 [b] [iii]), and we conclude
that the evidence is material and relevant. We note that this Court
has reviewed those records inasmuch as they are included in the record
on appeal as part of petitioner’s motion to stay the order.

     The caseworker testified that respondents had failed to take
responsibility for the injuries sustained by their children, and thus
petitioner sought to continue the placement with the paternal
grandmother. In response to that testimony, the court stated,
“They’re never going to be able to . . . They’ve admitted that they
have unexplained injuries. That’s the extent that they can admit to.”
The court asked respondents if they would “insure that [the] child is
safe,” and each respondent replied “yes.” The caseworker explained
that it was difficult to recommend further services because, although
respondents made an admission in court, they each stated to her that
“the only reason why they made the admission is because their
attorneys told them to do it.” The court asked respondents whether
their respective statements at the time of the admission were true and
respondents replied that their statements were true. The caseworker
further testified that respondents both denied that they knew what
happened to either child and the father stated that he did not know
why he made “those statements” to the police regarding Makynzie’s
death.

     The court determined that all services had been completed, no
further services were recommended, and there was “no evidence that
Carson will face the possibility of future neglect or abuse while in
[respondents’] care. And there is no testimony that [petitioner]
could provide any additional services that would mitigate any
possibility of same.” The court thus determined that the goal of
“return to parent” has been achieved.

     We agree with petitioner that, “in accordance with the best
interests and safety of the child, including whether the child would
be at risk of abuse or neglect if returned to [respondents],”
placement should continue with a fit and willing relative pending
further order of the court following a permanency hearing (Family Ct
Act § 1089 [d]). “Despite an otherwise good relationship between
respondent[s] and [their] child[], [their] inability to acknowledge
[his and/or her] previous behavior supports the conclusion that [they
have] a faulty understanding of the duties of parenthood sufficient to
infer an ongoing danger to the subject child” (Matter of Keith H., 113
AD3d 555, 556, lv denied 23 NY3d 902). The record establishes that,
while in respondents’ care, 14-month-old Makynzie died as a result of
smothering, that two-month-old Carson sustained a non-accidental,
traumatic spiral fracture, and that the court lacked sufficient
information to determine who caused the death and the fracture (cf.
Matter of Kadiatou, 52 AD3d 388, 390, lv denied 12 NY3d 701).
Although respondents complied with court-ordered services, “[w]ithout
explaining the circumstances which led to [Makynzie’s death and
Carson’s fracture, respondents] cannot effectively address the
underlying parenting problems” (Matter of Haylee RR., 47 AD3d 1093,
1095). We conclude that respondents’ willingness to “vaguely . . .
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                                                         CAF 14-01596

accept[] responsibility” for Makynzie’s death and Carson’s injury is
not sufficient to support a determination that Carson’s best interests
are served by returning him to the care and custody of respondents
(id.). We therefore reverse the order and remit the matter to Family
Court for further permanency proceedings before a different judge.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
