IN RE: DOMINIC B. (2016)

MEMORANDUM AND ORDER

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

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 A.D.2d 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 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 N.Y.2d 299, 317–318;  Matter of Dashawn N., 111 AD3d 640, 640–641;  Matter of Malik S. [Jana M.], 101 AD3d 1776, 1777–1778).

Frances E. Cafarell

Clerk of the Court