Opinion
2020–06645 Docket Nos. N–8649–20, N–8650–20
11-24-2021
In the MATTER OF MIKAYLA T. (Anonymous). Administration for Children's Services, respondent; v. Jyranda R. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Ian T. (Anonymous). Administration for Children's Services, respondent; v. Jyranda R. (Anonymous), appellant. (Proceeding No. 2)
Cheryl Charles–Duval, Brooklyn, NY, for appellant. Georgia M. Pestana, Corporation Counsel, New York, NY (Melanie T. West and D. Alan Rosinus, Jr., of counsel), for respondent. Christopher S. Charnetsky, Brooklyn, NY, attorney for the child Mikayla T. Janet E. Sabel, New York, NY (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the child Ian T.
Cheryl Charles–Duval, Brooklyn, NY, for appellant.
Georgia M. Pestana, Corporation Counsel, New York, NY (Melanie T. West and D. Alan Rosinus, Jr., of counsel), for respondent.
Christopher S. Charnetsky, Brooklyn, NY, attorney for the child Mikayla T.
Janet E. Sabel, New York, NY (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the child Ian T.
WILLIAM F. MASTRO, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, LARA J. GENOVESI, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (Ben Darvil, Jr., J.), dated August 20, 2020. The order, insofar as appealed from, after a hearing, denied the mother's application pursuant to Family Court Act § 1028 for the return of the subject children to her custody during the pendency of the proceedings.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced these related proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected her then eight-year-old son by inflicting excessive corporal punishment on him, resulting in physical injury, and that she derivatively neglected her daughter, who was one year old at the time. The petitioner temporarily removed the subject children from the mother's custody. Subsequently, the mother made an application pursuant to Family Court Act § 1028 for the return of the children to her custody. After a hearing, the Family Court denied the mother's application. The mother appeals.
Although the children have subsequently been returned to the mother's custody, the mother's appeal is not academic, as the underlying finding of imminent risk to the children's life or health in the event they were returned to the mother at the time the order was issued constitutes a permanent and significant stigma that might indirectly affect the mother's status in potential future proceedings (see Matter of Cheryl P. [Ayanna M.], 168 A.D.3d 1062, 1062–1063, 92 N.Y.S.3d 728 ).
A parent's application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed "shall" be granted unless the Family Court finds that "the return presents an imminent risk to the child's life or health" ( id. ; see Matter of Nyomi P. [Imeisha P.], 189 A.D.3d 843, 844, 133 N.Y.S.3d 479 ). In making its determination, 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" ( Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ), and "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" ( id. at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ; see Matter of Jayla P. [Niquette B.], 195 A.D.3d 1029, 1030, 146 N.Y.S.3d 821 ; Matter of Nyomi P. [Imeisha P.], 189 A.D.3d at 844, 133 N.Y.S.3d 479 ). "Evidence that the children who are the subject of the proceeding were previously harmed while in the parent's care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent's care" ( Matter of Rosy S., 54 A.D.3d 377, 378, 863 N.Y.S.2d 65 ; see Matter of Tatih E. [Keisha T.], 168 A.D.3d 935, 936, 92 N.Y.S.3d 352 ).
Here, there is a sound and substantial basis in the record for the Family Court's determination that the return of the children to the mother would present an imminent risk to the children, and that the risk could not be mitigated by reasonable efforts to avoid removal (see Matter of Nyomi P. [Imeisha P.], 189 A.D.3d at 844, 133 N.Y.S.3d 479 ; Matter of Tatih E. [Keisha T.], 168 A.D.3d at 936, 92 N.Y.S.3d 352 ). The court's determination as to the mother's lack of credibility should not be disturbed, as it is supported by the record (see Matter of Jayla P. [Niquette B.], 195 A.D.3d at 1030, 146 N.Y.S.3d 821 ).
Accordingly, the Family Court properly denied the mother's application pursuant to Family Court Act § 1028 for the return of the children to her custody.
MASTRO, J.P., BRATHWAITE NELSON, IANNACCI and GENOVESI, JJ., concur.