At page 646 Admissibility of out-of-court statements under hearsay rule15 citing cases“the evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker s concerning a domestic dispute”
- Matter of Micah S. (Rogerio S.), 206 A.D.3d 1086 (N.Y. App. Div. 3d Dep't 2022).publishedRespondent's verbal hostility toward petitioner's caseworker and the deputy during the May 2020 visit is insufficient to demonstrate that the daughter's physical, mental or emotional condition was in imminent danger of being impaired ( see…
- Matter of Aiden J. (Armando K.), 197 A.D.3d 798 (N.Y. App. Div. 3d Dep't 2021).publishedAs respondent and the attorney for the children correctly argue, Family Court improperly relied on this hearsay testimony — i.e., what the mother told the caseworker — in reaching its determination ( see Matter of Lydia DD. [Khalil P.] , 1…
- Matter of Joyesha J. v. Oscar S., 135 A.D.3d 557 (N.Y. App. Div. 1st Dep't 2016).publishedPetitioner’s allegations that the father improperly touched one or more of the children were unsupported by admissible evidence, but only by inadmissible hearsay testimony by petitioner and her mother (see Matter of Imani B., 27 AD3d 645,…
- Matter of Milagros A.W. (John R.), 128 A.D.3d 1079 (N.Y. App. Div. 2d Dep't 2015).publishedFurthermore, the verbal dispute between the father and the mother on the sidewalk immediately preceding the father tak *1081 ing the baby, absent evidence of actual or threatened impairment to the baby, is also insufficient to establish ne…
- Walsh v. Desroches, 118 A.D.3d 813 (N.Y. App. Div. 2d Dep't 2014).published The remaining contentions of the nonparty respondent are either without merit or not properly before this Court (see Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d 818, 819 [2013]; Matter of Imani B., 27 AD3d 645, 646 [2006]; Hatton v Gass…
- In re Nicholas C., 105 A.D.3d 1402 (N.Y. App. Div. 4th Dep't 2013).published Here, “[t]he evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker [s] concerning a domestic dispute” (Matter of Imani B.,…
- In re Zaire D., 90 A.D.3d 923 (N.Y. App. Div. 2d Dep't 2011).publishedWhile the mother is correct that the Family Court erred in admitting into evidence the Domestic Incident Report containing the father’s out-of-court statements made to the police concerning the domestic dispute (see Matter of Imani B., 27…
- In re Sanaia L., 75 A.D.3d 554 (N.Y. App. Div. 2d Dep't 2010).publishedThe hearsay admitted into evidence at the fact-finding hearing was allowable pursuant to specific statutory provisions (see Family Ct Act § 1046 [a] [iv], [v]; Matter of Imani B., 27 AD3d 645, 646 [2006]).
- In re Tajani B., 49 A.D.3d 874 (N.Y. App. Div. 2d Dep't 2008).publishedAccordingly, hearsay is inadmissible in a fact-finding hearing, unless permitted by a specific statutory provision or unless a recognized exception applies (see Matter of Imani B., 27 AD3d 645, 646 [2006]).
- In re Tyler M., 139 A.D.3d 1401 (N.Y. App. Div. 4th Dep't 2016).published The mother’s out-of-court statements constituted hearsay, and “were not admissible against the father in the absence of a showing that they came within a statutory or common-law exception to the hearsay rule” (Matter of Nicholas C. [Erika…
Show 1 more citing case
- In re Lydia DD., 110 A.D.3d 1399 (N.Y. App. Div. 3d Dep't 2013).published 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…
At page 645 Determining parental neglect under family court act1 citing caseIn a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of factfinding and disposition (one paper) of the…
- Matter of Gianna A. (Jashua A.), 132 A.D.3d 855 (N.Y. App. Div. 2d Dep't 2015).publishedA determination of parental neglect following a fact-finding hearing must be based on a preponderance of the evidence, demonstrating “ ‘first, that a child’s physical, mental or emotional condition has been impaired or is in imminent dange…
Other citing cases
- M., Tyler, Mtr. of, No. CAF 14-01822 (N.Y. App. Div. 4th Dep't May 6, 2016).published
In a child protective proceeding pursuant to Family Court Act article 10, the father appeals from an order of factfinding and disposition (one paper) of the Family Court, Suffolk County (MacKenzie, J.), dated March 9, 2005, which, after a hearing, inter alia, determined that he had neglected the subject child.
Ordered that the order of factfinding and disposition is reversed, on the law and the facts, without costs or disbursements, and the petition is dismissed.
A determination of parental neglect following a fact-finding hearing must be based on a preponderance of the evidence, demonstrating “first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger[*646] of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see Matter of Tammie Z., 66 NY2d 1 [1985]). Only “competent, material and relevant evidence may be admitted” at the fact-finding hearing (Family Ct Act § 1046 [b] [ii]).
The evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker concerning a domestic dispute. The mother’s statements were not admissible as evidence against the father absent any showing that the statements came within a statutory or common-law exception to the hearsay rule (see Morrissey v City of New York, 221 AD2d 607 [1995]). We decline to consider the Law Guardian’s alternate theory that the mother’s out-of-court statements were admissible under the excited utterance exception to the hearsay rule, since the theory was not advanced in the Family Court, where the father would have been able to counter the argument and the trial court would have been able to make factual determinations relevant to the issue of admissibility in the first instance (see People v Nieves, 67 NY2d 125, 135 [1986]; see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]).
The nonhearsay evidence in the record established at most that the mother and father had engaged in loud verbal disputes in front of their four-month-old child. This evidence was insufficient to establish that the child’s physical, mental, or emotional condition was in imminent danger of being impaired as a result of the father’s failure to exercise appropriate care (see Nicholson v Scoppetta, supra). Accordingly, we reverse the order and dismiss the petition. Schmidt, J.P., Rivera, Skelos and Lifson, JJ., concur.