| Matter of Tajani B. |
| 2008 NY Slip Op 02837 [49 AD3d 874] |
| March 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Tajani B., a Child Alleged to be Neglected. SuffolkCounty Department of Social Services, Respondent; Fred S., Appellant. (Proceeding No. 1.) Inthe Matter of Taliq B., a Child Alleged to be Neglected. Suffolk County Department of SocialServices, Respondent; Fred S., Appellant. (Proceeding No. 2.) In the Matter of Telis S., a ChildAlleged to be Neglected. Suffolk County Department of Social Services, Respondent; Fred S.,Appellant. (Proceeding No. 3.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), forrespondent. Danielle I. Schwager, P.C., Central Islip, N.Y., attorney for the children.
In three related neglect proceedings pursuant to Family Court Act article 10, the fatherappeals, as limited by his brief, from so much of an order of fact-finding and disposition of theFamily Court, Suffolk County (Freundlich, J.), dated January 12, 2007, as, after a fact-findingand dispositional hearing, found that he neglected the subject children, directed him to submit toa mental health evaluation, and ordered supervised visitation.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.[*2]
In a child protective proceeding, the party seeking toestablish neglect must show, "first, that a child's physical, mental or emotional condition hasbeen impaired or is in imminent danger of becoming impaired and second, that the actual orthreatened harm to the child is a consequence of the failure of the parent or caretaker to exercisea minimum degree of care in providing the child with proper supervision or guardianship"(Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see Matter of Dimitriy R., 39AD3d 866 [2007]; Family Ct Act § 1012 [f]). A finding of neglect must be based on"competent, material and relevant evidence" (Family Ct Act § 1046 [b] [iii]). Accordingly,hearsay is inadmissible in a fact-finding hearing, unless permitted by a specific statutoryprovision or unless a recognized exception applies (see Matter of Imani B., 27 AD3d645, 646 [2006]).
The petitioner proved by a preponderance of the evidence that the subject children wereneglected by the father (see Family Ct Act § 1046 [b] [i]). Here, the nonhearsayevidence presented at the hearing was sufficient to prove that the father allowed a loaded gun tobe placed on a bed accessible to the mother's then three-year-old son and next to his thenfive-month-old daughter who was in a crib, thereby creating an imminent danger that theirphysical, mental, and emotional health would be harmed (see Matter of Aminat O., 20AD3d 480, 481 [2005]; Family Ct Act § 1012 [f] [i]). Additionally, the threatened harm ofthe loaded gun was a consequence of the father failing to exercise a minimum degree of care inproviding the children with proper supervision.
The father's remaining contentions are without merit. Skelos, J.P., Lifson, Santucci andBalkin, JJ., concur.