IN RE: TAJANI B. (Anonymous). (2008)

In three related neglect proceedings pursuant to Family Court Act article 10, the father appeals, as limited by his brief, from so much of an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich, J.), dated January 12, 2007, as, after a fact-finding and dispositional hearing, found that he neglected the subject children, directed him to submit to a mental health evaluation, and ordered supervised visitation.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In a child protective proceeding, the party seeking to establish neglect must show, “first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840;  see Matter of Dimitriy R., 39 A.D.3d 866, 833 N.Y.S.2d 898;  Family Ct. Act § 1012[f] ).  A finding of neglect must be based on “competent, material and relevant evidence” (Family Ct. Act § 1046[b][iii] ).   Accordingly, hearsay is inadmissible in a fact-finding hearing, unless permitted by a specific statutory provision or unless a recognized exception applies (see Matter of Imani B., 27 A.D.3d 645, 646, 811 N.Y.S.2d 447).

The petitioner proved by a preponderance of the evidence that the subject children were neglected by the father (see Family Ct. Act § 1046[b][i] ).   Here, the nonhearsay evidence presented at the hearing was sufficient to prove that the father allowed a loaded gun to be placed on a bed accessible to the mother's then three-year-old son and next to his then five-month-old daughter who was in a crib, thereby creating an imminent danger that their physical, mental, and emotional health would be harmed (see Matter of Aminat O., 20 A.D.3d 480, 481, 797 N.Y.S.2d 767;  Family Ct. Act § 1012[f][i] ).   Additionally, the threatened harm of the loaded gun was a consequence of the father failing to exercise a minimum degree of care in providing the children with proper supervision.

The father's remaining contentions are without merit.