Opinion
2016-07571, Docket No. N-13560-15.
11-01-2017
In the Matter of DAVID L.S. (Anonymous) III. Administration for Children's Services, respondent; Caprice L.T. (Anonymous), appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Carolyn Walther of counsel), for respondent. Anna Stern, Brooklyn, NY, attorney for the child.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and Carolyn Walther of counsel), for respondent.
Anna Stern, Brooklyn, NY, attorney for the child.
Appeal by the mother from an amended order of fact-finding of the Family Court, Kings County (Alan Beckoff, J.), dated July 7, 2016. The amended order, after a fact-finding hearing, found that the mother neglected the subject child.
ORDERED that the amended order of fact-finding is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the subject child. After a fact-finding hearing, the Family Court found that the mother neglected the child. The mother appeals.
The mother's contention that the Family Court erred in admitting into evidence a recording of a telephone conversation between her and the paternal grandmother is unpreserved for appellate review (see Matter of Angel P. [Evelyn C.—Keith G.], 137 A.D.3d 793, 796, 26 N.Y.S.3d 547 ) and, in any event, without merit (see People v. McPhillips, 133 A.D.3d 785, 786, 21 N.Y.S.3d 134 ; People v. Nealy, 32 A.D.3d 400, 402, 819 N.Y.S.2d 106 ). The court erred, however, in admitting testimony by the paternal grandmother regarding a conversation with the maternal aunt and a recording of a telephone conversation between the paternal grandmother and the maternal grandmother under the present sense impression exception to the hearsay rule (see People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ; People v. Vasquez, 88 N.Y.2d 561, 576, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ; People v. Parchment, 92 A.D.3d 699, 699, 938 N.Y.S.2d 174 ). Nevertheless, these errors were harmless (see Matter of Angel P. [Evelyn C.—Keith G.], 137 A.D.3d at 795, 26 N.Y.S.3d 547; Matter of Jeremiah J.W. [Tionna W.], 134 A.D.3d 848, 849, 22 N.Y.S.3d 215 ).
The Family Court's determination that the mother neglected the child was supported by a preponderance of the evidence, which demonstrated that the child's physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother's mental illness (see Matter of Zoey A. [Felicia A.], 139 A.D.3d 528, 30 N.Y.S.3d 547 ; Matter of Mesiah Elijah B. [Taneez B.], 132 A.D.3d 456, 17 N.Y.S.3d 637 ; Matter of Negus T. [Fayme B.], 123 A.D.3d 836, 996 N.Y.S.2d 544 ; see also Matter of Kiemiyah M. [Cassiah M.], 137 A.D.3d 1279, 1279–1280, 28 N.Y.S.3d 411 ).Accordingly, the Family Court properly found that the mother neglected the child.
RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.