| Matter of Lydia DD. (Khalil P.) |
| 2013 NY Slip Op 07097 [110 AD3d 1399] |
| October 31, 2013 |
| Appellate Division, Third Department |
| In the Matter of Lydia DD. and Another, Children Allegedto be Neglected. Broome County Department of Social Services, Petitioner; Khalil P.,Respondent, et al., Respondent; James A. Mack, as Attorney for the Children,Appellant. |
—[*1] Craig R. Fritzsch, Binghamton, for Khalil P., respondent.
Stein, J.P. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered April 27, 2012, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondents' children to be neglected.
Respondent Khalil P. (hereinafter respondent) is the father of two children, LydiaDD. (born in 1998) and Thais P. (born in 2002). In July 2011, petitioner commenced thisFamily Ct Act article 10 proceeding against respondent and the children's mother,asserting that the children were neglected as a result of, among other things, an allegedincident of domestic violence [*2]between respondentand the mother that occurred in July 2011 in Lydia's presence.[FN1]After a fact-finding hearing regarding respondent,[FN2]Family Court dismissed the petition, finding that petitioner "failed to provide sufficientcompetent, material and relevant evidence" to support the allegations contained in thepetition. The attorney for the children now appeals.[FN3]
We affirm. "To establish neglect, [a] petitioner must prove by a preponderance of theevidence that a child's physical, mental or emotional condition was harmed or is inimminent danger of harm as a result of a failure on the part of the parent to exercise aminimum degree of care" (Matter of Aiden XX. [Jesse XX.], 104 AD3d 1094, 1095[2013] [internal quotation marks and citation omitted]; see Family Ct Act §1012 [f] [i]; Nicholson vScoppetta, 3 NY3d 357, 368 [2004]; Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398,1399-1400 [2013], lv denied 21 NY3d 863 [2013]). At a fact-finding hearing,only "competent, material and relevant evidence" may be admitted (Family Ct Act§ 1046 [b] [iii]; seeMatter of Nicholas C. [Erika H.—Robert C.], 105 AD3d 1402, 1402[2013]; Matter of ChelseaK., 15 AD3d 794, 795 [2005], lv dismissed 4 NY3d 869 [2005];Matter of Zachariah VV., 262 AD2d 719, 720 [1999], lv denied 94NY2d 756 [1999]; compare Family Ct Act § 1046 [c]).
Here, the only proof offered by petitioner was the testimony of its caseworker, whohad no personal knowledge of the events that led to the filing of the petition. Rather, thecaseworker's testimony concerning the alleged acts constituting neglect consisted entirelyof what he was purportedly told by the mother. Upon our review of the record andnotwithstanding the absence of any contrary testimony, we discern no error in FamilyCourt's determination that the testimony of the caseworker was insufficient to sustainpetitioner's burden of proof (see Matter of Nicholas C. [Erika H.—RobertC.], 105 AD3d at 1403; accord Matter of Imani B., 27 AD3d 645, 646 [2006]).Thus, the petition was properly dismissed.
We have considered the remaining arguments raised by the attorney for the childrenand find them to be lacking in merit.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The petition against themother was resolved in a manner that is not explained in the record.
Footnote 2: Neither respondent northe mother were present at the fact-finding hearing. However, respondent wasrepresented by counsel.
Footnote 3: Notwithstanding thewholesale dismissal of its petition by Family Court, petitioner did not appeal. Petitionernow attempts to advance its position by way of a letter to this Court. Under thesecircumstances, we decline to consider such letter.