In re Ann U. , 75 A.D.2d 944 ( 1980 )

Appeal from an order of the Family Court of St. Lawrence County, entered June 30, 1978, which permanently terminated respondent’s parental rights as to her children Lisa and Alida. This proceeding to terminate parental rights involves two of the respondent mother’s four children. Lisa and Alida, now 13 and 11 years old, were voluntarily surrendered by respondent to the petitioner St. Lawrence County Department of Social Services on January 9, 1976. Initially given custody for a period of one year, petitioner instituted this proceeding to terminate respondent’s parental rights on May 23, 1977 after said custody had been extended for an additional year. Following fact finding and dispositional hearings, Family Court granted the petition on the basis that Lisa and Alida were permanently neglected children and awarded custody to petitioner for purposes of adoption. This appeal ensued. Respondent’s argument that the Family Court erred in finding her two children to be permanently neglected must be rejected. During the period in which Lisa and Alida were in the petitioner’s care, the respondent was quite transient, continually moving without leaving a forwarding address. Whenever respondent did contact petitioner, visits were arranged with her children. Petitioner found respondent a place to live in St. Lawrence County so she could be close to her children. Respondent, however, chose to move 300 miles away to Orange County and later moved to Florida before returning to New York State. Service plans were formulated by petitioner to guide respondent in stabilizing her living arrangements so that the children could be returned to her. While it may have been possible for petitioner to have done more to encourage and strengthen the parental relationship, "we must not become enmeshed in an analysis of the niceties of the precise degree of required diligence of effort” (Matter of Joyce A. R., 52 AD2d 882). Petitioner’s efforts were adapted to the particular circumstances (Matter of Karas, 59 AD2d 1022, mot for lv to app den 43 NY2d 646) and adequate to fulfill its statutory duty (Family Ct Act, § 614, subd 1, par [c]; Social Services Law, § 384-b, subd 7, pars [a], [f]). The finding by Family Court that respondent failed to plan for the future of Lisa and Alida (Family Ct Act, § 614, subd 1, par [d]; Social Services Law, § 384-b, subd 7, pars [a], [c]) must also be upheld in view of respondent’s failure to effectuate any feasible and realistic plan for her children (Matter of Orlando F., 40 NY2d 103, 110). There remains one final issue raised by respondent which requires our attention. Petitioner offered into evidence at the fact-finding hearing its entire case file on respondent and her children. In support of her contention that such an admission was reversible error, respondent relies on the recent case of Matter of Leon RR (48 NY2d 117)' wherein the Court of Appeals stated (supra, p 124) that "the admission of the entire case file, standing alone, is sufficient to warrant reversal”. A closer examination of the court’s reasoning in Leon RR, however, compels us to disagree with respondent’s interpretation of that case’s holding. Leon RR did not say that a Family Court committed reversible error every time it allowed an entire case file to be admitted into evidence. Rather, the court in Leon RR pointed out that the entire case file could not be admitted under the business record exception to the hearsay rule (CPLR 4518, subd [a]) and outlined the procedure under which such a file could be admitted. "The better practice would have been for petitioner to have given respondents notice and an opportunity to examine the file prior to the hearing * * * As a matter of fundamental fairness, then, before such a massive document is sought to be introduced into evidence, the proponent, normally as a matter of good practice, should give his adversary notice of that intention sufficiently far in advance of trial to allow the opponent an opportunity to investigate * * * If notice is not given, upon timely application the court, in its discretion, may properly grant a reasonable continuance so that the opponent may at least acquaint himself with the contents of the document” (Matter of Leon RR, supra, pp 123-124). Thus, because the respondents in Leon RR were not given an opportunity to review the case record admitted into evidence, "fundamental fairness” was violated in that they were effectively denied their right to introduce evidence to rebut the statements contained in the file (Matter of Leon RR, supra, p 123). In the instant case, when petitioner offered the case record into evidence on December 19, 1977, the first day of trial, respondent’s counsel requested an extension in order to review the record’s contents. Family Court admitted the file subject to respondent’s right to make written objections to any portion of the record at a later time. Respondent’s counsel was allowed to inspect the case record during that day’s lunch recess. The following day, respondent’s counsel complained that due to the limited time offered to review the file and the numerous hearsay statements contained therein, it was impossible to reduce all of his objections to writing. Counsel then moved that petitioner be required to remove from the file any materials which it sought to introduce and offer the evidence item by item. Family Court denied the motion and reiterated its position that counsel could study the case record at the conclusion of the evidence and submit a list of those portions which he felt were prejudicial. Furthermore, respondent’s counsel was assured that he could request the taking of testimony to rebut any material in the case record. After further discussion with counsel concerning the presence of anonymous and vindictive letters in the file, Family Court ordered that all letters other than those from respondent or petitioner’s employees be removed from the record. The fact-finding hearing was then adjourned until January 23, 1978, during which time the case record was made available for review by respondent’s counsel. Before adjourning, the court made it clear that both sides would have to be prepared to present any other witnesses they wished to call when the hearing resumed on January 23, 1978. When the fact-finding hearing concluded on January 30, 1978, respondent’s counsel had still not made any specific objections to material in the case record despite having had over 40 days to review the file. It is significant to note that any attempt by respondent’s counsel to object to material in the file or offer rebuttal testimony, even as late as January 30, 1978, would have been effective in view of the Family Court Judge’s statement on that date that he had still not read the case record. We, therefore, conclude that the admission of petitioner’s entire case file on respondent and her children in this proceeding to terminate parental rights complied with the principle of "fundamental fairness” as defined by the Court of Appeals in Matter of Leon RR (supra). Accordingly, the order of Family Court must be affirmed. Order affirmed, without costs. Mahoney, P. J., Greenblott, Main and Casey, JJ., concur.