| Matter of Ethan Z. (Zhen C.Z.) |
| 2012 NY Slip Op 01825 [93 AD3d 733] |
| March 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Ethan Z. Administration for Children's Services,Respondent; Zhen C.Z., Appellant, et al., Respondent. In the Matter of Shyla Z. Administrationfor Children's Services, Respondent; Zhen C.Z., Appellant, et al.,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Amy Hausknecht of counsel),attorney for the children.
In two child protective proceedings pursuant to Family Court Act article 10, the fatherappeals (1) from a fact-finding order of the Family Court, Kings County (Hamill, J.), dated July21, 2010, which granted the petitioner's motion for summary judgment on the issue of neglectand determined that the father had neglected the subject children, and (2), as limited by his brief,from so much of two orders of disposition (one as to each child) of the same court (Lim, J.), bothdated October 18, 2010, as, upon the fact-finding order, inter alia, released the subject children tohis and the mother's custody with supervision by the petitioner for a period of six months.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the orders of disposition and isbrought up for review on the appeals from the orders of disposition; and it is further,
Ordered that the appeal from so much of the orders of disposition as released the subjectchildren to the parents' custody with supervision by the petitioner for a period of six months isdismissed as academic, without costs or disbursements, as the period of supervised custody hasexpired; and it is further,
Ordered that the orders of disposition are reversed insofar as reviewed, on the law, [*2]without costs or disbursements, the petitioner's motion for summaryjudgment is denied, the fact-finding order is vacated, and the matter is remitted to the FamilyCourt, Kings County, for further proceedings consistent herewith.
The petitioner, Administration for Children's Services (hereinafter ACS), failed to establishits prima facie entitlement to judgment as a matter of law on the issue of neglect with respect tothe subject children (see Family Ct Act § 1012 [f] [i]; Matter of N. Children [Angela N.], 86AD3d 572 [2011]). In support of its petitions, ACS included the evidence submitted at ahearing held pursuant to Family Court Act § 1028 (hereinafter the section 1028 hearing).The evidence submitted at the section 1028 hearing failed to establish that the father neglectedhis children. Moreover, most of the evidence submitted by ACS at the section 1028 hearing washearsay. Although hearsay evidence is permitted in a 1028 hearing, it is not permitted in afact-finding hearing (see Family Ct Act § 1046 [b] [iii]; [c]). Consequently,hearsay evidence cannot be the basis for granting summary judgment in lieu of a fact-findinghearing (see Matter of N. Children[Angela N.], 86 AD3d 572 [2011]). Under the facts of this case, the father has not hadthe opportunity to prepare his case, and he should be given the opportunity to do so (seeMatter of N. Children [Angela N.], 86 AD3d at 573). Accordingly, the Family Court erred ingranting ACS's motion for summary judgment on the issue of neglect, and the matter must beremitted to the Family Court, Kings County, for further proceedings on the petitions. Dillon, J.P.,Florio, Austin and Roman, JJ., concur.