| Matter of David L.S. (Caprice L.T.) |
| 2017 NY Slip Op 07605 |
| Decided on November 1, 2017 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 1, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2016-07571
(Docket No. N-13560-15)
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.
DECISION & ORDER
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) and, in any event, without merit (see People v McPhillips, 133 AD3d 785, 786; People v Nealy, 32 AD3d 400, 402). 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; People v Vasquez, 88 NY2d 561, 576; People v Parchment, 92 AD3d 699, 699). 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).
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; Matter of Mesiah Elijah B. [Taneez B.], 132 AD3d 456; Matter of Negus T. [Fayme B.], 123 AD3d 836; see also Matter of Kiemiyah M. [*2][Cassiah M.], 137 AD3d 1279, 1279-1280).
Accordingly, the Family Court properly found that the mother neglected the child.
RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court