IN RE: MEEYA P. (Anonymous). (2018)

DECISION & ORDER

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petition is reinstated, a finding is made that the father neglected the subject child, and the matter is remitted to the Family Court, Dutchess County, for a dispositional hearing and the issuance of a dispositional order thereafter.

The petitioner commenced this proceeding alleging, inter alia, that the father neglected the subject child by engaging in acts of domestic violence in the presence of the child.  After a fact-finding hearing, the Family Court, upon a finding that the petitioner failed to establish that the father neglected the child, in effect, dismissed the petition.  The petitioner appeals.

In order to establish neglect, a petitioner must establish, by a preponderance of the evidence, that the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship (see Family Ct. Act §§ 1012[f][i], 1046[b][i];  Matter of Afton C. [James C.], 17 N.Y.3d 1, 9, 926 N.Y.S.2d 365, 950 N.E.2d 101;  Nicholson v. Scoppetta, 3 N.Y.3d 357, 368, 787 N.Y.S.2d 196, 820 N.E.2d 840).  “[E]xposing a child to domestic violence is not presumptively neglectful” (Nicholson v. Scoppetta, 3 N.Y.3d at 375, 787 N.Y.S.2d 196, 820 N.E.2d 840).  However, a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually placed in imminent danger of harm by reason of the failure of the parent or caretaker to exercise a minimal degree of care (see id. at 372, 787 N.Y.S.2d 196, 820 N.E.2d 840;  Matter of Jubilee S. [James S.], 149 A.D.3d 965, 967, 52 N.Y.S.3d 439;  Matter of Chaim R. [Keturah Ponce R.], 94 A.D.3d 1127, 1130, 943 N.Y.S.2d 195).  Except for certain exceptions provided for in the Family Court Act, only competent, material, and relevant evidence may be admitted at a fact-finding hearing held under article 10 of the Family Court Act (see Family Ct. Act § 1046[b][iii] ).

Here, much of the evidence offered in support of the petition against the father consisted of out-of-court statements made by the mother to police officers concerning domestic disputes.  The Family Court correctly determined that the mother's statements were not admissible as evidence against the father absent any showing that the statements came within a statutory or common-law exception to the hearsay rule (see Matter of Zaire D. [Benellie R.], 90 A.D.3d 923, 924, 935 N.Y.S.2d 581;  Matter of Imani B., 27 A.D.3d 645, 646, 811 N.Y.S.2d 447;  Morrissey v. City of New York, 221 A.D.2d 607, 607, 634 N.Y.S.2d 185).  Moreover, the court correctly determined that the mother's out-of-court statements were not admissible under the excited utterance exception to the hearsay rule (see generally People v. Johnson, 1 N.Y.3d 302, 306–307, 772 N.Y.S.2d 238, 804 N.E.2d 402).  However, contrary to the court's determination, a preponderance of the remaining competent, material, and relevant evidence, which included, inter alia, the mother's in-court admission that she and the father engaged in a physical altercation in the child's presence, as well as other competent, material, and relevant evidence establishing a history of domestic violence between the parents, established that the child's physical, mental, or emotional condition was in imminent danger of being impaired as a result of the father's failure to exercise a minimum degree of care (see Family Ct. Act §§ 1012[f][i][B];  1046[b][i], [iii];  Matter of John M.M. [Michael M.], 160 A.D.3d 646, 647, 73 N.Y.S.3d 232;  Matter of Jihad H. [Fawaz H.], 151 A.D.3d 1063, 1064, 58 N.Y.S.3d 478;  Matter of Cody W. [Ronald L.], 148 A.D.3d 914, 916, 49 N.Y.S.3d 509;  Matter of Celeste O. [Calvin A.], 119 A.D.3d 586, 587, 987 N.Y.S.2d 903;  Matter of Kiara C. [David C.], 85 A.D.3d 1025, 1026, 926 N.Y.S.2d 566).  Therefore, the court should have made a finding that the father neglected the subject child.

In light of our determination, we do not reach the parties' remaining contentions.

MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.