Matter of Danazah B.D. (Audrey B.)

125 A.D.3d 964, 1 N.Y.S.3d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2015
• Docket: 2014-07503
• Status: Published

Opinion

Appeal from an order of the Family Court, Kings County (llana Gruebel, J.), dated July 25, 2014. The order, in effect, denied, without a hearing, the mother’s motion for the return of the subject child pursuant to Family Court Act § 1028.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing pursuant to Family Court Act § 1028 and a new determination of the mother’s motion thereafter.

The Family Court has no discretion to deny, without a hearing, a parent’s application pursuant to Family Court Act § 1028 if the conditions of the statute are satisfied (see Matter of Prince Me. [Wendell Me.], 88 AD3d 885, 886 [2011]; Matter of Kristina R, 21 AD3d 560, 562-563 [2005]; Matter of Cory M., 307 AD2d 1035, 1036 [2003]). Here, since the conditions of the statute were satisfied (see Family Ct Act § 1028), the Family Court erred by, in effect, denying the mother’s motion for return of the subject child pursuant to Family Court Act § 1028 without a hearing (see Matter of Prince Mc. [Wendell Mc.], 88 AD3d at 886; Matter of Cory M., 307 AD2d at 1036).

Accordingly, we remit the matter to the Family Court, Kings County, for a hearing pursuant to Family Court Act § 1028 and a new determination of the mother’s motion thereafter. Skelos, J.P., Balkin, Hall and Maltese, JJ., concur.