In re Melissa H.

62 A.D.2d 1045, 404 N.Y.S.2d 49, 1978 N.Y. App. Div. LEXIS 11126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1978
• Status: Published

Opinion

In a child abuse proceeding, the mother of two daughters alleged to have been abused appeals from an order of the Family Court, Kings County, dated February 15, 1978, which denied her application for a hearing pursuant to section 1028 of the Family Court Act. Order reversed, without costs or disbursements, and proceeding remitted to the Family Court, Kings County, for a hearing pursuant to section 1028 of the Family Court Act, which hearing shall commence on April 18, 1978, at 10:00 a.m., and proceed until concluded. Section 1028 of the Family Court Act provides that, upon the application of a parent of a child temporarily removed for an order returning the child, the court shall hold a hearing within three court days of the application. The statute does not grant the court any discretion to deny a hearing once one has been demanded (Matter of Michael Z, 40 AD2d 1034). The fact that the Commissioner of Social Services stated on February 15, 1978 that he was ready for the fact-finding hearing, was not sufficient reason to have denied the application for a section 1028 hearing.. Although the fact-finding hearing was commenced on April 10, 1978, and was continued on April 14, 1978, it was not concluded on that date, but was adjourned for several weeks. Notwithstanding the fact that the court is now holding the fact-finding hearing, under the unusual circumstances of this case the hearing pursuant to section 1028 of the Family Court Act is being directed to commence immediately because the mother should not be compelled to wait any longer for a right granted to her by statute. Suozzi, J. P., Gulotta, Cohalan and Margett, JJ., concur.