Opinion
07-13-2016
In the Matter of RYLIEGH B. (Anonymous). Administration for Children's Services, appellant; Madelan B. (Anonymous), respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for appellant. Brooklyn Defender Services, Brooklyn, N.Y. (Lauren Shapiro, Emma Alpert, Chrishana White, and Davis Polk & Wardwell LLP [Lance O. Aduba ], of counsel), for respondent. Joan N.G. James, Brooklyn, N.Y., attorney for the child.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for appellant.
Brooklyn Defender Services, Brooklyn, N.Y. (Lauren Shapiro, Emma Alpert, Chrishana White, and Davis Polk & Wardwell LLP [Lance O. Aduba ], of counsel), for respondent.
Joan N.G. James, Brooklyn, N.Y., attorney for the child.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal from an order of the Family Court, Kings County (Jacqueline B. Deane, J.), dated December 23, 2015. The order, after a hearing, granted the mother's application pursuant to Family Court Act § 1028 for the return of the subject child to her custody.
ORDERED that the order is affirmed, without costs or disbursements.
On December 2, 2015, the petitioner commenced this proceeding pursuant to Family Court Act article 10 alleging that the mother neglected the subject child by inflicting excessive corporal punishment on the child. The following day, the Family Court issued an order temporarily placing the child in the custody of the petitioner. The mother thereafter made an application pursuant to Family Court Act § 1028 for the return of the child to her custody. After a hearing, the court granted the application. The petitioner appeals. An application pursuant to Family Court Act § 1028 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” (Family Ct. Act § 1028[a] ). In making its determination, the Family 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 ). The 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” (id. 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 Julissia B. [Navasia J.], 128 A.D.3d 690, 691, 7 N.Y.S.3d 596 ; see Matter of Alex A.E. [Adel E.], 103 A.D.3d 721, 722, 960 N.Y.S.2d 147 ; Matter of Alan C. [Thomas C.], 85 A.D.3d 912, 914, 925 N.Y.S.2d 174 ).
Upon reviewing the record here, there was a sound and substantial basis for the Family Court's determination granting the mother's application, since there was insufficient evidence to establish that the child would be subjected to imminent risk if returned to the mother during the pendency of the proceedings (see Matter of Jesse J., 64 A.D.3d 598, 599–600, 882 N.Y.S.2d 487 ).