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In re Lydia DD.

Supreme Court of New York, Third Department

October 31, 2013

In the Matter of LYDIA DD. and Another, Alleged to be Neglected Children. BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner;
v.
KHALIL P., Respondent, et al., Respondent. and JAMES A. MACK, as Attorney for the Children, Appellant.

Calendar Date: September 3, 2013

James A. Mack, Binghamton, attorney for the children, appellant.

Craig R. Fritzsch, Binghamton, for Khalil P., respondent.

Before: Stein, J.P., McCarthy, Spain and Egan Jr., JJ.

MEMORANDUM AND ORDER

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 proceeding pursuant to Family Ct Act article 10, to adjudicate respondents' children to be neglected.

Respondent Khalil P. (hereinafter respondent) is the father of two children, Lydia DD. (born in 1998) and Thais P. (born in 2002). In July 2011, petitioner commenced this Family 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 alleged incident of domestic violence between respondent and the mother that occurred in July 2011 in Lydia's presence [1]. After a fact-finding hearing regarding respondent, [2] Family Court dismissed the petition, finding that petitioner "failed to provide sufficient competent, material and relevant evidence" to support the allegations contained in the petition. The attorney for the children now appeals. [3]

We affirm. "To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child's physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care" (Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 1095 [2013] [internal quotation marks and citation omitted]; see Family Ct Act § 1012 [f] [i]; Nicholson v Scoppetta, 3 N.Y.3d 357, 368 [2004]; Matter of Shay-Nah FF. [Theresa GG.], 106 A.D.3d 1398, 1399-1400 [2013], lv denied 21 N.Y.3d 863 [2013]). At a fact-finding hearing, only "competent, material and relevant evidence" may be admitted (Family Ct Act § 1046 [b] [iii]; see Matter of Nicholas C. [Erika H.—Robert C.], 105 A.D.3d 1402, 1402 [2013]; Matter of Chelsea K., 15 A.D.3d 794, 795 [2005], lv dismissed 4 N.Y.3d 869 [2005]; Matter of Zachariah VV., 262 A.D.2d 719, 720 [1999], lv denied 94 N.Y.2d 756 [1999]; compare Family Ct Act § 1046 [c]).

Here, the only proof offered by petitioner was the testimony of its caseworker, who had no personal knowledge of the events that led to the filing of the petition. Rather, the caseworker's testimony concerning the alleged acts constituting neglect consisted entirely of what he was purportedly told by the mother. Upon our review of the record and notwithstanding the absence of any contrary testimony, we discern no error in Family Court's determination that the testimony of the caseworker was insufficient to sustain petitioner's burden of proof (see Matter of Nicholas C. [Erika H.—Robert C.], 105 A.D.3d at 1403; accord Matter of Imani B., 27 A.D.3d 645, 646 [2006]). Thus, the petition was properly dismissed.

We have considered the remaining arguments raised by the attorney for the children and find them to be lacking in merit.

McCarthy, Spain and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.


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