| Matter of Nicholas C. (Erika H.—Robert C.) |
| 2013 NY Slip Op 02906 [105 AD3d 1402] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Nicholas C., an Infant. Onondaga CountyDepartment of Social Services, Respondent; Erika H., Respondent; Robert C.,Respondent-Appellant. |
—[*1] Gordon J. Cuffy, County Attorney, Syracuse (Sara J. Langan of counsel), forpetitioner-respondent. Francis I. Walter, Attorney for the Child, Syracuse, for Nicholas C.
Appeal from an order of the Supreme Court, Onondaga County (Michael L.Hanuszczak, A.J.), dated June 2, 2011 in a proceeding pursuant to Family Court Actarticle 10. The order, insofar as appealed from, adjudged that respondent Robert C.neglected the subject child.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs and the petition against respondent Robert C. is dismissed.
Memorandum: Respondent father appeals from an order that, inter alia, adjudged thathe neglected the child who is the subject of this proceeding. "[A] party seeking toestablish neglect must show, by a preponderance of the evidence . . . , first,that [the] child's physical, mental or emotional condition has been impaired or is inimminent danger of becoming impaired and second, that the actual or threatened harm tothe child is a consequence of the failure of the parent . . . to exercise aminimum degree of care in providing the child with proper supervision or guardianship"(Nicholson v Scoppetta, 3NY3d 357, 368 [2004]; see Family Ct Act §§ 1012 [f] [i]; 1046[b] [i]). At the fact-finding hearing, moreover, "only competent, material and relevantevidence may be admitted" (§ 1046 [b] [iii]). Here, "[t]he evidence offered insupport of the petition against the father consisted almost entirely of out-of-courtstatements made by the mother to a police officer and caseworker[s] concerning adomestic dispute" (Matter ofImani B., 27 AD3d 645, 646 [2006]; see Matter of Christy C. [Jeffrey C.], 74 AD3d 561, 562[2010]). Those statements were not admissible against the father in the absence of ashowing that they came within a statutory or common-law exception to the hearsay rule(see Imani B., 27 AD3d at 646). Contrary to the statement of Supreme Court, weconclude that the hearsay statements were not admissible "under article 10" of the FamilyCourt Act (see generally § 1046 [a]). We decline to address petitioner'salternative theories for the admissibility of the mother's hearsay statements that were notadvanced at the fact-finding hearing (see Imani B., 27 AD3d at 646). Thenonhearsay evidence in the record is insufficient to establish that the child's physical,mental or emotional condition was impaired or [*2]inimminent danger of becoming impaired as a consequence of the father's conduct (see Matter of Imani O. [MarcusO.], 91 AD3d 466, 468 [2012]; Imani B., 27 AD3d at 646).
Finally, we note that, " 'because the potential consequences are so drastic, the FamilyCourt Act affords protections equivalent to the constitutional standard of effectiveassistance of counsel afforded defendants in criminal proceedings' " (Matter of Michael C., 82AD3d 1651, 1652 [2011], lv denied 17 NY3d 704 [2011]). We thereforehave considered the father's contention that he was denied effective assistance of counselat the dispositional hearing, despite the fact that the dispositional order has expired. Weconclude, however, that his contention lacks merit (see Matter of June MM., 62 AD3d 1216, 1218 [2009],lv denied 13 NY3d 704 [2009]; see also Matter of Lamar J.F., 8 AD3d 1091, 1092 [2004]).Present—Centra, J.P., Fahey, Carni, Sconiers and Martoche, JJ.