Matter of Julissia B. (Navasia J.)

128 A.D.3d 690, 7 N.Y.S.3d 596

Opinions

Appeal from an order of the Family Court, Kings County (Alan Beckoff, J.), dated May 8, 2014. The order, insofar as appealed from, after a hearing, granted the mother’s application pursuant to Family Court Act § 1028 for the return of the subject child to her custody.

Ordered that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the mother’s application pursuant to Family Court Act § 1028 for the return of the subject child to her custody is denied.

The subject child, an infant, was removed from the mother’s custody just after her birth, in April 2014. The mother has four older children, who were removed from her custody a year before the subject child was born. The older children remain in foster care, pursuant to the Family Court’s denial, after a hearing on May 6, 2013, of the mother’s application for their return. The petitioner commenced this proceeding based on allegations that the subject child’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the failure by the mother and the child’s father to exercise a minimum degree of care. The mother made an application for the return of the subject child pursuant to Family Court Act § 1028 (a). After a hearing, the Family Court granted the application. The petitioner appeals.

By decision and order on motion dated May 29, 2014, this Court granted the petitioner’s motion to stay enforcement, pending the determination of this appeal, of so much of the Family Court’s order as granted the mother’s application and directed the return of the subject child to the mother.

An application pursuant to Family Court Act § 1028 (a) for the return of a child who has been temporarily removed “shall” be granted unless the court finds that “the return presents an imminent risk to the child’s life or health” (Family Ct Act § 1028 [a]). In a proceeding for removal of a child, the Family Court “must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” (Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]). Ultimately, the Family Court “must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests” (id. at 378). In reviewing a Family Court’s determination of an application pursuant to Family Court Act § 1028 (a) for the return of a child who has been temporarily removed, this Court must determine whether a sound and substantial basis in the record supports the Family Court’s determination (see Matter of Alex A.E. [Adel E.], 103 AD3d 721, 722 [2013]; Matter of Alan C. [Thomas C.], 85 AD3d 912, 914 [2011]).

Upon reviewing the record, we find that it does not provide a sound and substantial basis for the Family Court’s determination granting the mother’s application (cf. Matter of Alexi R.C. [Monica D.], 109 AD3d 819, 821 [2013]; Matter of Cyraia B. [Carduck B.], 96 AD3d 936, 937 [2012]; Matter of Alan C. [Thomas C.], 85 AD3d at 914; Matter of Jesse J., 64 AD3d 598, 599-600 [2009]). In particular, the evidence established, among other things, that the mother had failed to address or acknowledge the circumstances that led to the removal of the child (see Family Ct Act § 1028; Nicholson v Scoppetta, 3 NY3d at 369). Although, as our dissenting colleague points out, the mother complied with the petitioner’s service requirements, she was still prone to unpredictable emotional outbursts, even during visits with the children, and she was easily provoked and agitated. Indeed, the case planner testified that she had not seen any improvement in the mother’s conduct even after the mother participated in the mandated services. Finally, the case planner testified that the agency could provide “homemaking” services, but those services would not be preventative and, in any event, would only be for several hours a day. In sum, until the mother is able to successfully address and acknowledge the circumstances that led to the removal of the other children, we cannot agree that the return of the subject child to the mother’s custody, even with the safeguards imposed by the Family Court, would not present an imminent risk to the subject child’s life or health (see Matter of Alexi R.C. [Monica D.], 109 AD3d at 821; Matter of Kimberly H., 242 AD2d 35, 39 [1998]; cf. Matter of Tsulyn A. [Deborah A.], 90 AD3d 748, 749 [2011]; Matter of Noah Jeremiah J. [Kimberly J.], 81 AD3d 37, 43-44 [2010]; Matter of Alexander B., 28 AD3d 547, 549 [2006]).

In light of our determination, we need not address the petitioner’s remaining contention. Rivera, J.R, Balkin and Sgroi, JJ., concur.