        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

305
CAF 11-01532
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF NICHOLAS C.
----------------------------------------------
ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,    MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

ERIKA H., RESPONDENT-RESPONDENT,
AND ROBERT C., RESPONDENT-APPELLANT.


KELLY M. CORBETT, FAYETTEVILLE, FOR RESPONDENT-APPELLANT.

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (SARA J. LANGAN OF
COUNSEL), FOR PETITIONER-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 Act article 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 reversed on the law without costs and the petition against
respondent Robert C. is dismissed.

     Memorandum: Respondent father appeals from an order that, inter
alia, adjudged that he neglected the child who is the subject of this
proceeding. “[A] party seeking to establish neglect must show, by a
preponderance of the evidence . . . , first, that [the] child’s
physical, mental or emotional condition has been impaired or is in
imminent danger of becoming impaired and second, that the actual or
threatened harm to the child is a consequence of the failure of the
parent . . . to exercise a minimum degree of care in providing the
child with proper supervision or guardianship” (Nicholson v Scoppetta,
3 NY3d 357, 368; see Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]). At
the fact-finding hearing, moreover, “only competent, material and
relevant evidence may be admitted” (§ 1046 [b] [iii]). 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., 27 AD3d 645, 646; see Matter of Christy
C., 74 AD3d 561, 562). Those statements 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 (see Imani B.,
                                 -2-                           305
                                                         CAF 11-01532

27 AD3d at 646). Contrary to the statement of Supreme Court, we
conclude that the hearsay statements were not admissible “under
article 10” of the Family Court Act (see generally § 1046 [a]). We
decline to address petitioner’s alternative theories for the
admissibility of the mother’s hearsay statements that were not
advanced at the fact-finding hearing (see Imani B., 27 AD3d at 646).
The nonhearsay evidence in the record is insufficient to establish
that the child’s physical, mental or emotional condition was impaired
or in imminent danger of becoming impaired as a consequence of the
father’s conduct (see Matter of Imani O. [Marcus O.], 91 AD3d 466,
468; Imani B., 27 AD3d at 646).

     Finally, we note that, “ ‘because the potential consequences are
so drastic, the Family Court Act affords protections equivalent to the
constitutional standard of effective assistance of counsel afforded
defendants in criminal proceedings’ ” (Matter of Michael C., 82 AD3d
1651, 1652, lv denied 17 NY3d 704). We therefore have considered the
father’s contention that he was denied effective assistance of counsel
at the dispositional hearing, despite the fact that the dispositional
order has expired. We conclude, however, that his contention lacks
merit (see Matter of June MM., 62 AD3d 1216, 1218, lv denied 13 NY3d
704; see also Matter of Lamar J.F., 8 AD3d 1091, 1092).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
