In re Gabriel James M.

59 A.D.3d 448, 872 N.Y.S.2d 670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2009
• Status: Published

Opinion

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Kings County (Danoff, J.), dated July 27, 2007, as directed the petitioner to conduct a priority investigation of the subject child’s grandparents residing in Georgia, pursuant to the Interstate Compact for the Placement of Children, and (2) from an order of the same court dated August 31, 2007, which, after a hearing, denied her application pursuant to Family Court Act § 1028 to return the subject child to her during the pendency of this proceeding.

Ordered that the order dated July 27, 2007 is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated August 31, 2007 is affirmed, without costs or disbursements.

Contrary to the mother’s contention, the Family Court providently exercised its discretion in denying her application pursuant to Family Court Act § 1028 to return the subject child to her custody during the pendency of this proceeding. There was sufficient evidence presented at the hearing held pursuant to Family Court Act § 1028, that the child’s emotional, mental, and physical health would be at imminent risk if he were returned to live with her (see Family Ct Act § 1028). We note that the imminent risk of harm to the child’s emotional, mental, and physical health would not be mitigated by the issuance of a protective order against the mother’s domestic partner to stay away from the child (see Matter of Selena J., 35 AD3d 610 [2006]; Matter of William C., 209 AD2d 408 [1994]; Matter of Bobby M., 103 AD2d 777, 778 [1984]; Matter of Jasmine H., 88 AD2d 996, 997 [1982]).

The mother’s remaining contention is without merit.

Motion by the attorney for the child, on appeals from two orders of the Family Court, Kings County, dated July 27, 2007 and August 31, 2007, respectively, to dismiss the appeal from the order dated August 31, 2007 on the ground that it has been rendered academic. By decision and order of this Court dated August 22, 2008 [2008 NY Slip Op 80990(U)], the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeals, it is

Ordered that the motion is denied. Florio, J.E, Covello, Balkin and Leventhal, JJ., concur.