Admin. for Children's Servs. v. Audrey B. (In re Danazah B. D.)

Full title: In the Matter of Danazah B. D. (Anonymous), also known as Danazah B…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Feb 25, 2015

2015 N.Y. Slip Op. 1633 (N.Y. App. Div. 2015)

Opinion

2014-07503

02-25-2015

In the Matter of Danazah B. D. (Anonymous), also known as Danazah B. (Anonymous). Administration for Children's Services, respondent; v. Audrey B. (Anonymous), appellant.

Chas Budnick, Brooklyn, N.Y. (Anne C. Reddy of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Scott Shorr of counsel), for respondent. Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.

PETER B. SKELOS, J.P.

RUTH C. BALKIN

L. PRISCILLA HALL

JOSEPH J. MALTESE, JJ. (Docket No. N-26046-12)

Chas Budnick, Brooklyn, N.Y. (Anne C. Reddy of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Scott Shorr of counsel), for respondent.

Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.

DECISION & ORDER

Appeal from an order of the Family Court, Kings County (Ilana Gruebel, J.), dated July 25, 2014. The order, in effect, denied, without a hearing, the mother's motion for the return of the subject child pursuant to Family Court Act § 1028.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing pursuant to Family Court Act § 1028 and a new determination of the mother's motion thereafter.

The Family Court has no discretion to deny, without a hearing, a parent's application pursuant to Family Court § 1028 if the conditions of the statute are satisfied (see Matter of Prince Mc. [Wendell Mc.], 88 AD3d 885, 886; Matter of Kristina R., 21 AD3d 560, 562-563; Matter of Cory M., 307 AD2d 1035, 1036). Here, since the conditions of the statute were satisfied (see Family Ct Act § 1028), the Family Court erred by, in effect, denying the mother's motion for return of the subject child pursuant to Family Court Act § 1028 without a hearing (see Matter of Prince Mc. [Wendell Mc.], 88 AD3d at 886; Matter of Cory M., 307 AD2d at 1036).

Accordingly, we remit the matter to the Family Court, Kings County, for a hearing pursuant to Family Court Act § 1028 and a new determination of the mother's motion thereafter.

SKELOS, J.P., BALKIN, HALL and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court