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

175
CAF 15-00427
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


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

AMY W., RESPONDENT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR RESPONDENT-APPELLANT.

STEPHEN J. RILEY, LITTLE VALLEY, FOR PETITIONER-RESPONDENT.

PAMELA THIBODEAU, ATTORNEY FOR THE CHILD, WILLIAMSVILLE.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered February 5, 2015 in a proceeding
pursuant to Family Court Act article 10. The order, inter alia,
determined that respondent had neglected the subject child and placed
the child in the custody of petitioner.

     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 a new hearing on the
petition.

     Memorandum: In this proceeding pursuant to Family Court Act
article 10, respondent mother appeals from an order that, inter alia,
determined that she had neglected the subject child and placed the
child in the custody of petitioner. Initially, we reject the mother’s
contention that Family Court lacked subject matter jurisdiction over
the petition under the Uniform Child Custody Jurisdiction and
Enforcement Act, which is codified in Domestic Relations Law article
5-A. Shortly before the subject child was born, the mother relocated
from New York to Pennsylvania, where she stayed with a cousin until
the child was born. Two days after the child was born, petitioner
commenced this neglect proceeding. We conclude that the court
properly exercised jurisdiction over the petition on the ground that
“the child and [her] family have a significant connection with New
York” (Mazur v Mazur, 207 AD2d 61, 66, lv denied 85 NY2d 803). We
note in particular that the mother maintained an apartment in New York
while she was at her cousin’s residence, that she attended mental
health counseling and parenting classes in New York before the child
was born, and that most of her family resides in New York.
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                                                         CAF 15-00427

     We agree with the mother, however, that the court erred in
admitting into evidence at the fact-finding hearing a 2012 evaluation
of the mother by a forensic psychologist who did not testify at the
hearing. The report constitutes hearsay (see Matter of Berrouet v
Greaves, 35 AD3d 460, 461) and, contrary to petitioner’s contention,
it did not qualify for admission under Family Court Act § 1046 (a)
(iv). We further conclude that the error cannot be deemed harmless
given that the court quoted extensively from the report in its
decision and that the determination of neglect was based largely on
findings contained within the report (see Matter of Dillon S., 249
AD2d 984, 984; Matter of Raymond J., 224 AD2d 337, 337-338). We
therefore reverse the order and remit the matter to Family Court for a
new fact-finding hearing.

     In light of our determination, we need not address the mother’s
remaining contentions.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
