IN RE: CHLOE W. (2016)

MEMORANDUM AND ORDER

PAMELA THIBODEAU, ATTORNEY FOR THE CHILD, WILLIAMSVILLE.

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 A.D.2d 61, 66, lv denied 85 N.Y.2d 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.

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 A.D.2d 984, 984;  Matter of Raymond J., 224 A.D.2d 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.

Frances E. Cafarell

Clerk of the Court