In re Cory M.

307 A.D.2d 1035, 763 N.Y.S.2d 771

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 2003
• Status: Published

Opinion

In three related child protective proceedings pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Queens County (Friedman, J.), dated October 9, 2001, which denied his application for the return of the subject children pursuant to Family Court Act § 1028 without a hearing.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter remitted to the Family Court, Queens County, for a hearing pursuant to Family Court Act § 1028.

In accordance with Family Court Act § 1028, upon the father’s application for the return of the children, the Family Court was required to hold a hearing within three court days of the application, provided the father was not present or given the opportunity to be represented by counsel at the preliminary hearing pursuant to Family Court Act § 1027. The court had no discretion to deny the application without a hearing as long as the conditions established by the plain language of the statute were satisfied (see Matter of Melissa H., 62 AD2d 1045 [1978]).

Contrary to the determination of the Family Court, there was no time limit within which the father had to make his application, only that he do so before there was an adjudication of abuse or neglect (see Matter of Melissa H., supra; Matter of Toni “WW”, 52 AD2d 108, 111 [1976]; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1028). Florio, J.P., Schmidt, Crane and Cozier, JJ., concur.