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

421
CAF 14-01822
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF TYLER M.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                   MEMORANDUM AND ORDER
TRACI C., RESPONDENT,
AND SCOTT M., RESPONDENT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

JEFFREY C. MANNILLO, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered August 27, 2014 in a proceeding pursuant to
Family Court Act article 10. The order, inter alia, adjudged that
respondent Scott M. neglected the subject child.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition against
respondent Scott M. is dismissed.

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent father appeals from an order that, inter alia,
determined that he neglected the subject child. We agree with the
father that petitioner failed to meet its burden of establishing
neglect by a preponderance of the evidence (see Family Ct Act § 1046
[b] [i]). At the fact-finding hearing, “only competent, material and
relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, however,
the evidence admitted in support of the petition consisted primarily
of the caseworker’s testimony regarding the mother’s out-of-court
statements, as well as portions of a police report containing the
mother’s statements to the police. 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 H.—Robert C.], 105 AD3d 1402, 1402; see Matter of Imani B., 27
AD3d 645, 646). Petitioner failed to make such showing (see Nicholas
C., 105 AD3d at 1403). Inasmuch as “[t]he 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 being
impaired as a consequence of the father’s conduct,” the petition must
be dismissed (id.; see Family Ct Act § 1012 [f] [i]; Matter of Imani
                                 -2-                  421
                                                CAF 14-01822

O. [Marcus O.], 91 AD3d 466, 468).




Entered:   May 6, 2016                 Frances E. Cafarell
                                       Clerk of the Court
