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

202
CAF 15-00142
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF DOMINIC B.
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CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL             MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;

LORETTA B., RESPONDENT-APPELLANT.


EMILY A. VELLA, SPRINGVILLE, FOR RESPONDENT-APPELLANT.

M. MARK HOWDEN, COUNTY ATTORNEY, LITTLE VALLEY (STEPHEN J. RILEY OF
COUNSEL), FOR PETITIONER-RESPONDENT.

BRONWYN E. ENDERS, ATTORNEY FOR THE CHILD, OLEAN.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered January 12, 2015 in a proceeding
pursuant to Family Court Act article 10. The order, inter alia,
adjudged that respondent had neglected the subject child.

      It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Family Court, Cattaraugus County, for further proceedings
in accordance with the following memorandum: In this proceeding
pursuant to Family Court Act article 10, respondent mother contends
that Family Court, in granting the petition, erred in relying on a
psychological evaluation of the mother that was not received in
evidence. We agree. “[I]t is a fundamental requirement of due
process that the decision maker’s conclusions must rest solely on
legal rules and the evidence adduced at the hearing” (Matter of Kurzon
v Kurzon, 246 AD2d 693, 695). Indeed, although the parties had
expressly stipulated that the evaluation would not be used as evidence
in any fact-finding hearing in this matter, or as a basis for seeking
to amend the neglect petition, the court relied heavily upon the
evaluation in reaching its determination. We conclude under the
circumstances of this case that a new fact-finding hearing is required
based on the court’s violation of the mother’s right to due process
(see generally Matter of Thor C. [Carol C.], 83 AD3d 1585, 1585). We
further conclude that the court’s failure to afford the mother the
opportunity to cross-examine a key witness, i.e., a caseworker for
petitioner, constituted a denial of her right to due process, which
also requires reversal (see Matter of Middlemiss v Pratt, 86 AD3d 658,
659).

     We therefore reverse the order and remit the matter to Family
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                                                         CAF 15-00142

Court for a new hearing on the petition, if warranted. In light of
information presented at oral argument of this appeal, it appears that
a new hearing may no longer be necessary (see generally Matter of
Michael B., 80 NY2d 299, 317-318; Matter of Dashawn N., 111 AD3d 640,
640-641; Matter of Malik S. [Jana M.], 101 AD3d 1776, 1777-1778).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
