Opinion
2020–09478 Docket No. N-10597-20
12-01-2021
In the MATTER OF JUNNY B. (Anonymous). Administration for Children's Services, petitioner-respondent; v. Homere B. (Anonymous), appellant, et al., respondent.
Christopher S. Charnetsky, Brooklyn, NY, for appellant. Georgia M. Pestana, Corporation Counsel, New York, NY (Jane L. Gordon and Elizabeth I. Freedman of counsel), for respondent. Carol Kahn, New York, NY, attorney for the child.
Christopher S. Charnetsky, Brooklyn, NY, for appellant.
Georgia M. Pestana, Corporation Counsel, New York, NY (Jane L. Gordon and Elizabeth I. Freedman of counsel), for respondent.
Carol Kahn, New York, NY, attorney for the child.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Kings County (Ben Darvil, Jr., J.), dated December 11, 2020. The order, insofar as appealed from, after a hearing, denied the father's application pursuant to Family Court Act § 1028 for the return of the subject child to his custody during the pendency of the proceeding.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In July 2020, the petitioner commenced this proceeding against the mother pursuant to Family Court Act article 10, alleging that the mother neglected the subject child. In October 2020, the petition was amended to allege that the father failed to provide the child with proper supervision and guardianship in that he perpetrated acts of domestic violence against the mother in the presence of the child. After amending the petition, the petitioner temporarily removed the child from the father's custody. The father made an application pursuant to Family Court Act § 1028 for the return of the child to his custody. After a hearing on the application, the Family Court, inter alia, denied the father's application. The father appeals.
"An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that the return presents an imminent risk to the child's life or health" ( Matter of Zaniyah R.-T. [Wanda R.], 196 A.D.3d 584, 585, 147 N.Y.S.3d 464 [internal quotation marks omitted]; see Family Ct Act § 1028[a] ; Matter of Treasure H. [Nicole H.], 195 A.D.3d 715, 715–716, 145 N.Y.S.3d 367 ). "In determining the application, the court ‘must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal’ " ( Matter of Zaniyah R.-T. [Wanda R.], 196 A.D.3d at 585, 147 N.Y.S.3d 464, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Treasure H. [Nicole H.], 195 A.D.3d at 716, 145 N.Y.S.3d 367 ). "Ultimately, the Family Court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" ( Matter of Zaniyah R.-T. [Wanda R.], 196 A.D.3d at 585, 147 N.Y.S.3d 464 [internal quotation marks omitted]; see Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "In reviewing a Family Court's determination of an application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed, this Court must determine whether a sound and substantial basis in the record supports the Family Court's determination" ( Matter of Zaniyah R.-T. [Wanda R.], 196 A.D.3d at 585, 147 N.Y.S.3d 464 [internal quotation marks omitted]; see Matter of Treasure H. [Nicole H.], 195 A.D.3d at 716, 145 N.Y.S.3d 367 ).
Here, there was a sound and substantial basis in the record for the Family Court's determination that the return of the subject child to the father would present an imminent risk to the child, as the record demonstrated that the father failed to address or acknowledge the circumstances that led to the removal of the child, minimized the domestic violence between him and the mother, and failed to take steps to address those issues (see Matter of Zaniyah R.-T. [Wanda R.], 196 A.D.3d at 585, 147 N.Y.S.3d 464 ; Matter of Cacique R.O. [Alejandro O.], 196 A.D.3d 487, 489, 146 N.Y.S.3d 830 ; Matter of Sara A. [Ashik A.], 141 A.D.3d 646, 647–648, 35 N.Y.S.3d 450 ). In addition, the evidence further established that the risk to the child could not be mitigated because the father would not comply with any order issued in an attempt to mitigate that risk (see Matter of Solai J. [Kadesha J.], 190 A.D.3d 973, 974, 136 N.Y.S.3d 895 ; Matter of Carter R. [Camesha B.], 184 A.D.3d 575, 576–577, 122 N.Y.S.3d 906 ). The court's determination as to the father's lack of credibility is supported by the record and should not be disturbed (see Matter of Jayla P. [Niquette B.], 195 A.D.3d 1029, 1030, 146 N.Y.S.3d 821 ; Matter of Treasure H. [Nicole H.], 195 A.D.3d at 716, 145 N.Y.S.3d 367 ; Matter of Nyomi P. [Imeisha P.], 189 A.D.3d 843, 844, 133 N.Y.S.3d 479 ).
AUSTIN, J.P., MILLER, WOOTEN and ZAYAS, JJ., concur.