In re David Edward D.

Appellate Division of the Supreme Court of New York

In re David Edward D.

35 A.D.3d 856, 828 N.Y.S.2d 438

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 26, 2006

StatusPublished

Cited by5 cases

This text of 35 A.D.3d 856 (In re David Edward D.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re David Edward D., 35 A.D.3d 856, 828 N.Y.S.2d 438 (N.Y. Ct. App. 2006).

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Opinion

In related child neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Suffolk County (Budd, J.), dated July 11, 2006, as, after a hearing, denied its application for continued removal of the subject child and returned custody of the child to the father.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In determining a removal application pursuant to Family Court Act § 1027, the court must “engage in a balancing test of the imminent risk [to the child’s life or health] with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal” (Nicholson v Scoppetta, 3 NY3d 357, 380 [2004]). Accordingly, the court must “balance [the] risk against the harm removal might bring” (Nicholson v Scoppetta, supra at 378). Since the Family Court had the advantage of viewing the witnesses and assessing their character and credibility, its determination should not be [857]*857disturbed unless it lacks a sound and substantial basis in the record (see Matter of Jennifer R., 29 AD3d 1003, 1004 [2006]; Matter of John Robert P. v Vito C., 23 AD3d 659, 661 [2005]).

Here, the petitioner failed to establish that the imminent risk to the child’s life or health if he remained with the father outweighed any harm that the child’s removal might bring. The Family Court, thus, properly determined that it was in the child’s best interests to be returned to his father. The Family Court also properly determined that the imminent risk to the child from the mother could be eliminated by issuing an order of protection prohibiting her from unsupervised contact with the child (see Family Ct Act § 1027 [b] [iv]; § 1028 [e]; Nicholson v Scoppetta, supra at 378-379). Crane, J.P., Krausman, Goldstein and Spolzino, JJ., concur.

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In related child neglect proceedings pursuant to Family Court Act article 10, the petitioner appeals, as limited by its brief, from so much of an order of the Family Court, Suffolk County (Budd, J.), dated July 11, 2006, as, after a hearing, denied its application for continued removal of the subject child and returned custody of the child to the father.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In determining a removal application pursuant to Family Court Act § 1027, the court must “engage in a balancing test of the imminent risk [to the child’s life or health] with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal” (Nicholson v Scoppetta, 3 NY3d 357, 380 [2004]). Accordingly, the court must “balance [the] risk against the harm removal might bring” (Nicholson v Scoppetta, supra at 378). Since the Family Court had the advantage of viewing the witnesses and assessing their character and credibility, its determination should not be [857]*857disturbed unless it lacks a sound and substantial basis in the record (see Matter of Jennifer R., 29 AD3d 1003, 1004 [2006]; Matter of John Robert P. v Vito C., 23 AD3d 659, 661 [2005]).

Here, the petitioner failed to establish that the imminent risk to the child’s life or health if he remained with the father outweighed any harm that the child’s removal might bring. The Family Court, thus, properly determined that it was in the child’s best interests to be returned to his father. The Family Court also properly determined that the imminent risk to the child from the mother could be eliminated by issuing an order of protection prohibiting her from unsupervised contact with the child (see Family Ct Act § 1027 [b] [iv]; § 1028 [e]; Nicholson v Scoppetta, supra at 378-379). Crane, J.P., Krausman, Goldstein and Spolzino, JJ., concur.

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Bluebook (online)

35 A.D.3d 856, 828 N.Y.S.2d 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-david-edward-d-nyappdiv-2006.

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