CPLR Evidentiary Rules Control in Social Services Law § 384-b Permanent Neglect Proceedings; Hearsay/Record Errors Reviewed for Harmlessness

1. Introduction

Matter of Skyler O. (Crystal L.) (App Div, 3d Dept, July 2, 2026) is a Third Department affirmance of an order of the Family Court of Madison County that (1) adjudicated four children (born 2015, 2019, 2020, 2021) to be permanently neglected under Social Services Law § 384-b and (2) terminated the mother’s parental rights after disposition.

The case arose from a multi-year child protective history beginning in 2019, involving allegations and findings related to domestic violence, substance abuse, inadequate supervision, and unstable housing. After removal of the three oldest children in July 2021 (following additional domestic violence) and removal of the youngest shortly after birth in October 2021, the children remained continuously in foster care. The Madison County Department of Social Services filed permanent neglect petitions in 2022. After fact-finding and disposition, Family Court terminated parental rights; the mother appealed.

The appeal presented four core issues:

  • Whether the agency proved diligent efforts to encourage and strengthen the parental relationship.
  • Whether the mother nonetheless substantially planned for the children’s future.
  • Whether Family Court committed reversible evidentiary error by admitting hearsay and agency materials from a non-testifying caseworker (with the mother invoking Family Ct Act § 1046 [b] [iii]).
  • Whether termination—rather than a suspended judgment—served the children’s best interests.

2. Summary of the Opinion

The Third Department affirmed in full. It held:

  • The agency established diligent efforts by clear and convincing evidence through extensive referrals, planning meetings, visitation facilitation, coaching, and repeated attempts to address the conditions that led to removal.
  • The agency proved the mother failed to substantially and continuously or repeatedly plan for the children’s future, given persistent domestic-violence dynamics, continued substance use and noncompliance with testing/treatment, inconsistent engagement with mental health services, and unsafe/chaotic visitation behavior.
  • Because these proceedings were brought under Social Services Law § 384-b, the CPLR governed evidentiary admissibility; even assuming hearsay/business-record foundation problems, any error was harmless because the court did not rely on the challenged material and the remaining proof independently supported permanent neglect.
  • At disposition, the best-interests record supported termination rather than a suspended judgment, given the length of foster care, the mother’s limited progress, continuing impairment/safety concerns during visits, and the children’s stability and progress in foster placements.

3. Analysis

3.1 Precedents Cited

Defining “permanent neglect” and the statutory framework

  • Matter of Alisha SS. [Zuhra SS.], 246 AD3d 1265 (3d Dept 2026)
    The court used this case to restate the statutory definition of permanent neglect (failure to plan for at least the statutory period while able to do so, despite the agency’s diligent efforts). It also supplied key language on the insufficiency of “good faith effort” without a realistic, feasible plan. In Skyler O., this framing guided both (1) the court’s evaluation of agency efforts and (2) the mother’s lack of meaningful correction of the removal conditions.

“Diligent efforts” content and the effect of parental nonengagement

  • Matter of Macayla N. [Sheena N.], 240 AD3d 976 (3d Dept 2025)
    This decision was relied upon for the operative definition of diligent efforts as “reasonable attempts” to assist and encourage a meaningful relationship, including visitation facilitation and services. It also supported the principle that the agency can meet its obligation even where progress is limited due to parental conduct. The Third Department applied that concept here: DSS offered services and structured contact, but the mother’s conduct prevented progression beyond fully supervised visitation.
  • Matter of Issac Q. [Kimberly R.], 212 AD3d 1049 (3d Dept 2023)
    Cited to illustrate the components of diligent efforts, including keeping a parent informed of children’s progress and attempting to ameliorate removal conditions. Skyler O. mirrors this by emphasizing service plan review meetings, communications regarding reunification planning, and attempts to implement coaching before/after visits.
  • Matter of Nikole V. [Norman V.], 224 AD3d 1102 (3d Dept 2024) and Matter of Jessica U. [Stephanie U.], 152 AD3d 1001 (3d Dept 2017)
    These cases supported the frequently litigated point that diligent efforts are satisfied where appropriate services are offered but the parent fails to engage or progress. The court invoked this line to reject arguments implying DSS must “do more” when the impediment is the parent’s repeated noncompliance, unsafe behaviors, or refusal of services (e.g., parenting classes).
  • Matter of Gabriel J. [Christina I.], 232 AD3d 1093 (3d Dept 2024) and Matter of Ryan J. [Taylor J.], 222 AD3d 1207 (3d Dept 2023)
    Cited in support of deference to Family Court credibility determinations and the sufficiency of agency efforts where the record shows consistent offers of help and structured visitation. Their use underscores the appellate posture: the Third Department will not reweigh credibility where the Family Court credited agency witnesses and their testimony establishes a coherent service-and-contact history.

“Failure to plan” standards—meaningful steps, realism, and feasibility

  • Matter of Jack V. [Jack U.], 243 AD3d 1174 (3d Dept 2025)
    Provided the formulation that planning requires “meaningful steps” to correct the conditions leading to removal. The court measured the mother’s actions (intermittent counseling, continued substance use, refusal of testing, missed sessions, unsafe visitation) against this “meaningful steps” benchmark and found them insufficient.
  • Matter of Daimeon MM. [Laurie MM.], 230 AD3d 1416 (3d Dept 2024)
    Used alongside Alisha SS. for the proposition that a plan must be realistic and feasible, and that good-faith intentions alone do not satisfy the statute. In Skyler O., the mother’s stated desire to regain custody and sporadic service participation did not amount to a workable plan because the core barriers—domestic violence, substance abuse, mental health instability—remained substantially unremedied.

Evidentiary governance in § 384-b proceedings: CPLR controls; errors assessed for harmlessness

  • Matter of Noah P. [Anthony F.], 246 AD3d 1398 (4th Dept 2026)
    This was central to the opinion’s evidentiary ruling: in proceedings commenced pursuant to Social Services Law § 384-b, admissibility is governed by the CPLR. The Third Department used it to address (and largely neutralize) the mother’s reliance on Family Ct Act § 1046 (b) (iii).
  • Matter of Zaiden P. [Ashley Q.], 211 AD3d 1348 (3d Dept 2022)
    Cited (including a footnote reference) for the same procedural proposition: evidentiary rules in § 384-b proceedings are the CPLR’s, not Family Ct Act § 1046’s special hearsay provisions. This reinforces a critical practice point for litigants: objections and foundations must be framed in CPLR terms (e.g., business records under CPLR 4518).

Disposition: best interests and the “brief grace period” concept for suspended judgments

  • Matter of Gionni LL. [Beatriz LL.], 248 AD3d 1633 (3d Dept 2026)
    The court relied on this decision to restate two core principles: (1) after permanent neglect adjudication, the sole concern at disposition is the child’s best interests with no presumption favoring return; and (2) a suspended judgment is a “brief grace period” appropriate only where the parent has made significant progress and is likely to become fit within a short time, consistent with the children’s best interests. The Third Department applied that standard to the record of ongoing chaotic/unsafe visits and limited sustained treatment progress.
  • Matter of Carmela D. [Shameeka G.], 232 AD3d 1126 (3d Dept 2024)
    Cited in the court’s concluding best-interests analysis, supporting termination where the child’s need for permanency and the parent’s insufficient remediation outweigh the prospect of further delay.

3.2 Legal Reasoning

A. Diligent efforts: “reasonable attempts,” not guaranteed success

The court’s reasoning follows a structured sequence typical of permanent neglect review:

  1. Agency burden (clear and convincing): show diligent efforts to strengthen the parental relationship and encourage reunification.
  2. Then, agency burden (clear and convincing): show the parent failed to plan for the child’s future despite ability to do so.

On diligent efforts, the court emphasized the agency’s longitudinal involvement and repeated service offerings: mental health, substance abuse treatment, domestic violence services, parenting programs, service plan review meetings, frequent supervised visitation (including extra weekly contact with the youngest), telephone contact, and coaching before/after visits. A key factual element was the agency’s explanation for why visits remained fully supervised: safety concerns tied to the mother’s inability to manage four children, boundary violations in discussions with children, and suspected impairment during visits. The court treated these restrictions not as agency “failures,” but as reasonable protective measures consistent with continuing efforts at reunification.

The court deferred to Family Court’s credibility determinations that credited the agency witnesses—an appellate posture that often decides close cases where the parent and agency narratives conflict.

B. Failure to plan: meaningful remediation of the removal conditions

The mother’s planning argument failed because the court equated “planning” with correcting the precipitating conditions, not merely expressing a desire for reunification or engaging sporadically in services. The opinion treated three domains as the core “conditions”:

  • Domestic violence: ongoing volatile relationships, resumption of relationships after removal, violations of protective orders, minimization of incidents, and failure to complete domestic violence counseling.
  • Substance abuse: admitted daily marihuana use (including purchase from unlicensed sellers), missed sessions, positive tests for cocaine and methamphetamine, refusal of hair follicle testing, and suspected impairment during visits.
  • Mental health/parenting functioning: diagnosed conditions, counseling termination due to missed sessions, resistance/inconsistency with medication, refusal of parenting classes, unsafe supervision incidents during visits, and inability to manage and discipline appropriately.

The court also used the mother’s behavior during visitation as both (1) evidence that the underlying conditions persisted and (2) proof that her actions were inconsistent with a feasible reunification plan. The visitation evidence was detailed and concrete (missed/late visits, prohibited topic discussions, safety lapses, combative behavior, removal by escort), which made the “failure to plan” conclusion less dependent on subjective impressions and more on observable conduct over time.

C. Evidence law: Social Services Law § 384-b proceedings use CPLR admissibility rules

A notable feature of the opinion is its direct clarification of evidentiary governance. The mother invoked Family Ct Act § 1046 (b) (iii), a provision often associated with the admissibility of certain hearsay in child protective proceedings. The Third Department responded that, because these were § 384-b termination proceedings, the CPLR governed admissibility (citing Matter of Noah P. [Anthony F.] and Matter of Zaiden P. [Ashley Q.]).

The court then addressed the merits in a practical way: even if some testimony was inadmissible hearsay and some documents lacked a proper business-record foundation under CPLR 4518 (a), reversal was unwarranted because the error was harmless. Two reasons supported harmlessness:

  • The record did not show Family Court relied on the challenged evidence to reach its determination.
  • Other admissible evidence independently and amply supported the permanent neglect finding.

This approach reinforces that evidentiary objections in these cases are not purely technical; appellants must show prejudice—i.e., that the challenged evidence likely affected the outcome.

D. Disposition: no presumption for return; suspended judgment requires significant progress and child-centered timing

At disposition, the court applied a child-centered best-interests test. The opinion’s best-interests analysis emphasized:

  • Continuing concerns during visitation (chaos, inability to manage, suspected impairment, combative behavior).
  • Children’s needs and progress in foster care, including therapies and improved emotional and developmental functioning.
  • Children’s reactions to contact—distress, agitation, opposition to visitation.
  • Permanency and time in care—the children had been in foster care continuously since 2021.
  • Mother’s limited sustained progress—treatment drop-off, unsatisfactory progress, inconsistent medication compliance, and failure to attend the final service plan meeting.

On the request for a suspended judgment, the court used Matter of Gionni LL. [Beatriz LL.] to stress that a suspended judgment is not a default compromise; it is justified only where a short delay is consistent with the children’s best interests and the parent is likely to become fit soon. The record here did not support that prognosis.

3.3 Impact

1) Evidence-law practice point in termination litigation

The opinion reinforces, in a clear and litigant-facing way, that CPLR admissibility rules govern Social Services Law § 384-b proceedings. Practitioners should therefore:

  • Frame hearsay objections and evidentiary foundations under CPLR principles.
  • Prepare to establish (or challenge) business record foundations under CPLR 4518 (a), especially for agency records authored by non-testifying staff.
  • On appeal, address prejudice: even if error exists, harmlessness analysis will often be dispositive where the remaining proof is strong.

2) Reinforcement of “diligent efforts” as reasonableness + documentation

The decision is a roadmap for what appellate courts accept as diligent efforts: consistent referrals, structured visitation, coaching, plan reviews, communication, and attempts to address the precise removal conditions. It also signals that agencies may maintain protective supervision levels during visits where safety concerns persist, without that choice undermining diligent efforts—so long as the agency can explain and document why.

3) Substantial planning requires durable behavioral change

The decision underscores that “planning” is evaluated through outcomes and sustained engagement, not stated intentions. Domestic violence minimization, ongoing substance use, refusal of testing, missed treatment, and inability to safely parent during visits can collectively defeat planning even where the parent shows affection and intermittently participates in services.

4) Disposition: permanency and child well-being can outweigh incremental parental progress

The opinion strengthens the application of the “brief grace period” concept: a suspended judgment is reserved for cases where measurable progress suggests imminent fitness and where the children can tolerate additional delay. Evidence of children’s distress from contact and their thriving in stable placements can weigh heavily against further postponement of permanency.

4. Complex Concepts Simplified

  • Permanently neglected child: A child in an authorized agency’s care where, for the statutory period, the parent—though able—fails to make and carry out a workable plan for the child’s future, despite the agency’s diligent efforts.
  • Diligent efforts: Reasonable, practical steps by the agency to help reunification (visits, referrals, communication, planning), not a guarantee of success.
  • Substantially plan: Taking meaningful, sustained steps to fix the problems that caused removal; wanting reunification is not enough without measurable remediation.
  • Clear and convincing evidence: A heightened proof standard—more than “more likely than not,” less than “beyond a reasonable doubt.”
  • Business records (CPLR 4518 [a]): Records kept in the regular course of business may be admitted if a proper foundation is laid (how and when they were made, by whom, and that it is the regular practice to make them).
  • Harmless error: Even if a court admitted something it should not have, reversal is not required unless the error likely affected the outcome.
  • Suspended judgment: A temporary pause on termination that gives a parent a short period to demonstrate fitness—used only when significant progress indicates likely near-term improvement and delay aligns with the child’s best interests.

5. Conclusion

Matter of Skyler O. (Crystal L.) consolidates several key principles in New York permanent neglect jurisprudence: (1) diligent efforts are measured by reasonableness and sustained agency engagement, not by whether reunification is achieved; (2) “planning” requires real, feasible, and durable correction of the problems that led to foster care; (3) in Social Services Law § 384-b termination cases, evidentiary admissibility is governed by the CPLR, with alleged hearsay or record-foundation errors often resolved through harmless-error analysis; and (4) at disposition, the child’s best interests—including stability, progress, and the costs of delay—control, and suspended judgments remain exceptional relief.