Matter of David L.S. (Caprice L.T.)

2017 NY Slip Op 7605, 155 A.D.3d 633, 62 N.Y.S.3d 813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2017
• Docket: 2016-07571
• Status: Published

Opinion

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 AD3d 793, 796 [2016]) and, in any event, without merit (see People v McPhillips, 133 AD3d 785, 786 [2015]; People v Nealy, 32 AD3d 400, 402 [2006]). 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 NY3d 374, 382 [2013]; People v Vasquez, 88 NY2d 561, 576 [1996]; People v Parchment, 92 AD3d 699, 699 [2012]). Nevertheless, these errors were harmless (see Matter of Angel P. [Evelyn C.—Keith G.], 137 AD3d at 795; Matter of Jeremiah J.W. [Tionna W.], 134 AD3d 848, 849 [2015]).

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 AD3d 528 [2016]; Matter of Mesiah Elijah B. [Taneez B.], 132 AD3d 456 [2015]; Matter of Negus T. [Fayme B.], 123 AD3d 836 [2014]; see also Matter of Kiemiyah M. [Cassiah M.], 137 AD3d 1279, 1279-1280 [2016]).

Accordingly, the Family Court properly found that the mother neglected the child.

Rivera, J.R, Hall, Miller and Duffy, JJ., concur.