IN RE: SAMANTHA K.

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: SAMANTHA K., Alleged to be a Person in Need of Supervision. Bradford Central School, Respondent; Samantha K., Appellant.

Decided: April 30, 2009

Before:  PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ. Daniel J. Fitzsimmons, Watkins Glen, for appellant. James P. Coleman, County Attorney, Watkins Glen (Dennis Morris of counsel), for respondent.

Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.), entered June 19, 2008, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 7, to adjudicate respondent a person in need of supervision.

Family Court granted petitioner's application to adjudicate respondent a person in need of supervision because she was absent from school on 64 days and tardy on an additional 64 days in one school year.   Respondent appeals.

 Family Court properly denied respondent's motion to dismiss the petition on jurisdictional grounds.   As required by Family Ct. Act § 732, the petition alleged that respondent was habitually truant, under 18 years old, in need of supervision, and that petitioner had complied with the provisions of Family Ct. Act § 735.   The steps taken by petitioner to improve respondent's attendance were listed in documents attached to the petition (see Family Ct. Act § 732[a];  Matter of Mercedes M.M., 52 A.D.3d 1210, 1211, 859 N.Y.S.2d 550 [2008] ).   Regarding compliance with the jurisdictional requirements of Family Ct. Act § 735, documents attached to the petition indicated that diversion services were terminated because respondent had not cooperated and it was unlikely that she would participate in or benefit from such services, rendering diversion unsuccessful (see Family Ct. Act § 735[g] [ii][b] ).  Although the designated agency's efforts only lasted one week after the required conference with respondent and her family, the agency reviewed the numerous steps taken by petitioner to improve respondent's attendance and it determined, in view of her failure to cooperate, that further diversion attempts would not be beneficial (see Family Ct. Act § 735[d][iii];  [g] [i] ).   Viewed as a whole, the petition and attached documents were adequate to comply with Family Ct. Act §§ 732 and 735 (see Matter of Sonya LL., 53 A.D.3d 727, 728, 861 N.Y.S.2d 463 [2008];  compare Matter of Rajan M., 35 A.D.3d 863, 865, 826 N.Y.S.2d 720 [2006] ).

 Family Court's admission of petitioner's records of respondent's school attendance did not violate respondent's rights under the Confrontation Clause (see U.S. Const. 6th Amend.).   The attendance record was properly admitted under the business records exception to the hearsay rule as the testimony established that the record was made in the regular course of the school's business in compliance with the Education Law for state aid and attendance purposes, that attendance information was regularly entered into the record, and that the entries were made contemporaneously by teachers (see CPLR 4518;  compare Matter of Jodel KK., 189 A.D.2d 63, 64, 595 N.Y.S.2d 835 [1993], lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660 [1993] ).   Although records falling within the business records exception are not automatically deemed nontestimonial statements, the attendance record did not exhibit “various indicia of testimoniality” (People v. Rawlins, 10 N.Y.3d 136, 151, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008];  see People v. Freycinet, 11 N.Y.3d 38, 41, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ).   The record contained a contemporaneous record of objective facts, its contents were not directly accusatory, and petitioner is neither an arm of law enforcement nor influenced by a pro-law enforcement bias (see People v. Freycinet, 11 N.Y.3d at 41, 862 N.Y.S.2d 450, 892 N.E.2d 843).   As the record was not testimonial, the Confrontation Clause is not implicated.

 Family Court did not act improperly as an advocate for petitioner by asking several questions related to the foundation for admission of the attendance record.   In this nonjury setting, the questions merely facilitated the orderly and expeditious progress of the hearing (see People v. Parrotte, 34 A.D.3d 921, 921-922, 823 N.Y.S.2d 593 [2006];  People v. Walker, 242 A.D.2d 752, 752, 661 N.Y.S.2d 865 [1997], lv. denied 91 N.Y.2d 837, 667 N.Y.S.2d 691, 690 N.E.2d 500 [1997] ).

ORDERED that the order is affirmed, without costs.

GARRY, J.

PETERS, J.P., ROSE, LAHTINEN and MALONE JR., JJ., concur.

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