| Matter of Imani O. (Marcus O.) |
| 2012 NY Slip Op 00108 [91 AD3d 466] |
| Jnury 12, 2012 |
| Appellate Division, First Department |
| In the Matter of Imani O. and Another, Children Alleged to beNeglected. Marcus O., Appellant; Administration for Children's Services,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel),Attorney for the Children.
Order of disposition, Family Court, Bronx County (Carol R. Sherman, J.), entered on orabout June 28, 2010, which, upon a fact-finding determination, entered on or about May 12,2010, that respondent-appellant father neglected the subject children, released the children totheir mother's custody with six months of supervision by petitioner Administration for Children'sServices, and issued an order of protection against the father until he enters a domestic violenceprogram, unanimously reversed, on the law, without costs, the finding of neglect vacated, and thepetition dismissed.
The lower court incorrectly found that appellant had neglected his children by perpetrating anact of domestic violence upon the mother in the children's presence. In reaching this conclusion,the court relied upon two domestic incident reports (DIR), an oral report transmittal (ORT), themother's hospital records, and portions of the caseworker's progress notes. The only witnesseswere a caseworker, who never interviewed the mother at the time of the incident, and appellant.Although the lower court determined that the assault occurred in the presence of the children,there was no admissible evidence to support this finding.
Only "competent, material and relevant evidence may be admitted" at the fact-findinghearing (Family Ct Act § 1046 [b] [iii]). The mother did not testify at the fact-findinghearing, and the lower court properly granted appellant's motion to exclude her statements ashearsay (see Matter of Imani B., 27AD3d 645 [2006]; see generally Matter of Leon RR, 48 NY2d 117, 122 [1979]).However, the lower court then improperly relied upon hearsay statements from a police officer inthe ORT. That police officer had responded to the subject domestic dispute at appellant's homeon August 27, 2007, and filed his ORT on August 31. The narrative portion of the ORT statesthat "there is a history of domestic violence" between the mother and appellant[*2]"in the presence of the children," ages three months and two yearsold. Even though the police officer is under a duty to report suspected child abuse ormaltreatment (Social Services Law § 413), to render his entire statement admissible underthe business records exception to the hearsay rule, all the participants in the chain must be undera duty to report and be acting within the scope of that duty (Leon RR, 48 NY2d at122-123). Here, the ORT does not explain or identify the source of the officer's statement that thechildren previously were present during domestic disputes between the mother and appellant.The ORT also does not specify if the children were present for the incident on August27—the basis for petitioner's allegation of neglect—and their presence at any otherincident is of no legal significance. Further, there is no way of knowing if the police officerobtained this information from someone who also was under a duty to report, or from the mother,who had no such duty. Since neither the officer nor the mother was called at the hearing, thestatement is inadmissible hearsay (seegenerally Matter of Christy C. [Jeffrey C.], 74 AD3d 561, 562 [2010] [the Family Courtimproperly relied upon statements by the mother and father contained in a police DIR that did notfall within an exception to the hearsay rule]). The reference in the ORT to a bruise on the top ofthe three-month-old child's scalp also cannot be used to prove the neglect charge because theofficer acknowledged that it was "unknown if [the] child sustained this injury as a result ofgetting in the middle of the assault." The officer's source for this statement also is unknown.
Moreover, although the lower court stated that a finding of neglect was proper based on themother's statements, those statements previously had been excluded on hearsay grounds. Beyondthe inadmissible hearsay contained in the police officer's ORT and the mother's excludedout-of-court statements, petitioner did not provide any other evidence that the children werepresent during the domestic dispute, a necessary finding in order to determine that appellant hadneglected his children (see Matter of Daphne G., 308 AD2d 132 [2003]).
The father's argument that the court erred in denying his request for assignment of newcounsel, effectively requiring him to proceed pro se, is unpreserved and, in any event, withoutmerit. Concur—Gonzalez, P.J., Tom, Catterson, Richter and RomÁn, JJ.