IN RE: K.R (2026)

On March 31, 2026, the Commissioner of the Administration for Children's Services ("Petitioner" or "ACS") filed a petition pursuant to FCA § 1022 against K.R. ("Respondent Mother") and S.M. ("Respondent Father") seeking the immediate removal and remand of their child, K.R. (DOB: X/X/2025) (the "Child"), given injuries to the Child that resulted in hospitalization. According to the petition, the Child's alleged injuries include a "tear to the lingual (tongue) frenum and a comminuted (bone fractured in multiple pieces) minimally displaced skull fracture ... with an underlying epidural hematoma." Respondents and the Child were assigned counsel, and the matter was heard on March 31, 2026, after which the court granted ACS's application for the Child's removal, finding imminent risk and that return of the Child to the Respondents was contrary to his welfare. The Attorney for the Child ("AFC") joined in ACS' application. The court found that the Child appeared to suffer from abuse or neglect and immediate removal was necessary to avoid imminent danger to life/health given his vulnerable age (3 months) and the fact that neither parent had an adequate explanation for how these injuries occurred. Upon granting the remand, the Respondent Mother's attorney asked for a hearing for the Child's immediate return but later withdrew that request on April 2, 2026. On April 2, 2026, ACS filed an Article 10 neglect petition on behalf of the Child against the Respondents and the Child was remanded to the care and custody of ACS. On September 10, 2026, Respondent Mother filed an order to show cause requesting return of the Child pursuant to FCA § 1028, holding a hearing in the alternative, and an Order requiring Petitioner to pay for extermination and fumigation services for Respondent Mother's home. Respondent Father joined in the application.

After the initial removal, the agency placed the Child with his maternal grandmother. The court ordered agency supervised visits, which expanded to resource supervised visits. On September 18, 2026, over ACS' objection, the court ordered overnight unsupervised visits, which have since been expanded to extended overnight visits with Respondent Father and Respondent Mother and the maternal grandmother caring for the Child during Respondent Mother's workday. No safety concerns have been raised by counsel as to any of the visits and, by all accounts, the visits are going well.

After review of the testimony, evidence adduced at the hearing, and statutory framework as set forth below, the Court grants Respondent Mother's application for return of the Child  ¹ .

Summary of the Evidence

A hearing pursuant to Family Court Act § 1028 began on September 18, 2026, and continued on September 24, September 30, October 1, and October 6, 2026. ACS called Respondent Mother, Respondent Father and Child Protective Specialist Marquina Reynold as witnesses. ACS entered the following exhibits into evidence:

• P-Ex. 1 Article 10 Petition 4/2/26, entered without objection

• P-Ex. 2 ORT 3/26/26 entered without objection

• P-Ex. 3 Bellevue March 26 to April 2026 — entered over Respondent Mother's Objection

• P-Ex. 4 3/31/26 Letter from Doctor to CPS Reynold Respondent Mother entered the following exhibits into evidence:

Respondent Mother entered the following exhibits into evidence:

• RM- Ex. A September 13, 2026 Community Action Initiative Letter

• RM- Ex. B HSI CPR Certificate

• RM- Ex. C August 31, 2026 Community Action Initiative Mental Health Program Certificate

• RM- Ex. D Visitor log dated April 6, 2026 to September 16, 2026

Respondent Father entered the following exhibits into evidence:

• RF- Ex. A HSI CPR Certificate

• RF- Ex. B August 25, 2026 Community Action Initiative Letter

• RF- Ex. C September 13, 2026 Community Action Initiative Letter

• RF- Ex. D July 10, 2026 Community Action Initiative Letter

• RF- Ex. E September 12, 2026 Community Action Initiative Mental Health Program Certificate

Respondent Mother Testimony:

Respondent Mother testified that the Child is her son. He was 3 months old in March 2026 and lived with her, her 16-year-old daughter, and Respondent Father. She and her husband cared for the Child. Respondent Mother cleaned him, fed him, and put him to bed. Respondent Father did the same and would feed him when he came home from work and changed his diaper. Respondent Mother testified that at 3 months old he could move "up and down," clarifying that he could turn over face down after being put to bed on his back.

On March 26, 2026, Respondent Mother was with the Child. It was the day before her wedding to Respondent Father, so she went to get her nails done with a friend. They then went to a restaurant, got her eyebrows done, and then went home. The Child often cried a lot, but that day he cried more than usual. She transported the Child to the nail salon in his carriage and they took the train. She noticed the Child crying a lot but by the time they got home he was crying nonstop. When she got home, she called Respondent Father and he suggested she bathe him as it was hot. She bathed the Child and he kept crying. Respondent Father suggested she feed him. The Child ate but kept crying so she took him to the emergency room. She brought the Child to the hospital around 5pm that day She told the doctor that he cried a lot, and they told her it was normal as he was a small child. She did not observe any injuries on the Child that day. The next day the doctors said that the Child had received a blow to his head. The doctor asked if they had dropped the Child and she said no, he did not fall and that the Child did not receive any injury to his head while in her care. She testified that the doctor did not tell her how the Child was hurt but did tell her possible causes, asked if she squeezed her legs together during birth, and told her they wanted to do more tests. She told the hospital that she didn't know how it happened; the baby slept with them in their room. The doctor told her maybe something happened because they were sleeping with the Child. The Child did not sustain any injuries during co-sleeping to her knowledge. She was not aware of any injuries to the Child's mouth until the doctor told her. The doctor told her that the Child had a small injury to his tongue; Respondent Mother told the doctor that the Child has a pacifier that they put fruit inside, and the doctor said maybe that's how the injury occurred. Since March, she has been in therapy and attended classes she was told to go to; she testified that she, more than anyone, would like to know what happened. Her discussions with Respondent Father center on what could have happened to the Child.

Since the case commenced, Respondent Mother engaged in therapy, parenting classes and CPR courses and completed all of them. She is currently continuing therapy where she discusses issues involving the case and issues involving her 16-year-old daughter. She learned that maybe sleeping with the Child was not the best thing, that blankets could also hurt him. She learned about taking more precautions now as they don't know exactly how the injury happened, such as not sleeping with the Child and having him in secure areas. She testified that she didn't have any concerns back then; she did bring up that the Child was crying a lot to the doctor and had issues with his skin. She is asking the court to return the Child to her. If returned, he would live in the same apartment and she and Respondent Father live in and her mother would help care for the Child.

On cross-examination, Respondent Mother testified that she wasn't arrested as a result of this case or any of the Child's injuries. She has never been arrested before and has no criminal history. Prior to March 2026, the Child had never been apart from her. The Child has an older sister, K.R., who is 16 years old. K.R. has always been in Respondent Mother's care, and ACS has never filed a case against her. As part of her service plan, ACS referred her to therapy, and she is currently in therapy at Community Action. Community Action recommended that she no longer needed therapy, but she chose to continue voluntarily. In April 2026, ACS referred her to a random drug test and to her knowledge she tested negative. ACS has not referred her to any further drug tests. The agency also referred her to a CPR class, which she completed. She was also referred to a parenting class, which she engaged in. She understands if the Child were released to her care, the court would issue a strict order requiring her to take the Child to his medical appointments, meet with his attorney if requested, comply with ACS supervision, including announced and unannounced visits. She indicated she would have "no problem" and be willing to do "anything they tell me," because she loves her son and wants him to be home with her. She goes to see him almost daily, noting the last few months have been hard. She has extended visits that have gone well. K.R. was happy to have the Child home. During visits, Respondent Mother observed Respondent Father's interactions with the Child which also went well.

Upon cross-examination by the AFC, Respondent Mother testified that if the Child was released to her care, she would continue individual therapy and would continue communicating with ACS.

Respondent Father's Testimony:

Respondent Father testified that he is the Child's father. Prior to March 2026, he worked from 11AM to 7PM so he cared for the Child after he came home from work. He would feed the Child, bathe him, and on many occasions would put him to sleep. On March 26, 2026, he left for work at 9:30AM.

He spoke to Respondent Mother on March 26, 2026, around 4pm. She told him that the Child was crying a lot, and he told her to bathe him because it was hot. She then called again and said the Child was crying and he said maybe she should feed him from her breast. Respondent Mother then called him again and she said she is taking the Child to the doctor. He testified that he went to the doctor after work and spoke to the doctor that attended to the Child at the hospital. The doctor asked him if the Child had fallen and he said he did not know as he had not been at home. He asked Respondent Mother if she let the Child fall and she said no. The mouth injury he believes was due to the "bobo" the Child sucks, but he did not know how the Child's head injury happened.

On cross-examination, Respondent Father testified that he completed a Community Action parenting course that he began on July 1, 2026 (16 one-hour sessions). As a result of that parenting course, he learned about how to keep the Child safe so he would not fall. He also completed a CPR course. Respondent Father is also engaged in therapy with Community Action on Monday and Wednesday virtually for one hour each session. He began attending therapy on July 1, 2026 and will continue to engage in therapy. In March 2026, he and Respondent Mother slept in same bed as the Child because he was afraid because there were cockroaches and vermin in the house. He had fumigated twice. If the Child was released to him, the Child would sleep in his own bed. The Child slept in Respondent Father and Respondent Mother's home last night and he slept in his crib. Going forward, he has learned not to have any stuffed animals or toys in the crib because they could hurt the Child. The Child has been staying at the parent's home since the court allowed overnights and extended visits. The visits have been going very well. When he comes home from work, he feeds and bathes the Child and changes him if he's dirty and plays with him. If the Child were released to his care, Respondent Father testified that he understands that the court would set conditions and he would follow them, such as therapy, ACS supervision, bringing the Child to all medical appointments and meetings with his attorney, and not co-sleeping. He would follow the orders because he loves his children. He misses the Child a lot.

On continued cross-examination, he testified that he attended visits with Respondent Mother present and observed her to be a very loving mother.

CPS Testimony:

The Child Protective Specialist ("CPS") was assigned this case on March 27, 2026. She received an ORT as to concerns regarding the Child's injuries. She printed out the necessary documents for families, which included resources about safe sleep and a safety packet, and began to investigate the case by making calls and visiting the hospital. She went to Metropolitan Hospital and was informed that the family was transferred to Bellevue Hospital. She went to Bellevue Hospital on March 27, 2026, and had an opportunity to speak to Respondent Mother for about ten minutes prior to the Child being taken for an MRI. She asked Respondent Mother if she can explain how the Child sustained an injury to his mouth and Respondent Mother responded that she did not know that the Child had any injuries to his mouth until she went to the hospital and the doctors made her aware. She spoke with Respondent Father and provided him the same materials, which included safe sleep information. She told him that children should sleep on their back alone and free of clutter. He told her that he understands the sleep protocol and that they co-sleep because the Child wakes up every 2-3 hours for feedings and because they had a roach infestation in the home.

On that day, CPS also spoke with a physician's assistant at Bellevue Hospital and asked if she could share images from the MRI, but the results were not back. She also spoke with Dr. X on the phone on March 30, 2026, and then again via email on March 31, 2026. The email from Dr. X attached a letter (P-Ex. 4). On April 8, 2026, she spoke with NYPD Police Officer ("PO"). They discussed footage of Respondent Mother running errands with the Child. In the videos, CPS observed Respondent Mother getting her nails done and the Child being held by an unknown woman in the background; the Child was red in the face. CPS observed the woman turning the Child onto his stomach and patting his back and something white fell out of his mouth. She observed the woman wipe the Child's mouth. She later observed Respondent Mother and her friend "Ms. Sonia" holding the Child while drinking a Corona beer. She spoke to Respondent Mother about the video on April 9, 2026, and asked her who was holding the Child in the background and made her aware that she knew that Respondent Mother was consuming an alcoholic beverage. Respondent Mother responded that she was not providing the lady's information and that she was advised not to speak to ACS without counsel present.

On cross-examination by Respondent Mother's attorney, CPS testified that on March 27, 2026, Respondent Mother told another CPS ("CPS 2") worker that the Child's crying and fussiness got worse as the day progressed. On March 27, 2026 Respondent Father told her that the Child was at Metropolitan Hospital. CPS testified that CPS 2 spoke with Dr. Y, who was one of the doctors who treated the Child. Dr. Y told CPS 2 that the Child's injuries could be the result of co-sleeping and CPS 2 wrote in her notes that, after hearing what Dr. Y said, the PO was satisfied that the Child could have been injured accidentally. CPS testified that the Child's sister had never been removed, had remained in Respondent Mother's care, and appeared to be well-cared for. CPS testified that Respondent Mother willingly attended random drug screenings and they were all negative.

On cross-examination by the AFC, CPS testified that a skeletal survey was done at Metropolitan Hospital and produced no suspicious findings. Respondent Mother submitted to random toxicology screens even though they were not part of her service plan. Dr. X told CPS that the Child's injuries could be sustained from a fall.

Legal Analysis, Findings of Fact and Conclusions of Law

Family Court Act §1028 requires that a Court grant the Respondent's application for the return of the Child "unless it finds that returning the child would present an imminent risk to the child's life or health." A §1028 or imminent risk hearing is different than a dispositional hearing or permanency hearing pursuant to FCA §1055 or Article 10A, where the standard is more akin to the children's best interests.

In Nicholson v. Scoppetta, 3 NY3d 357 (2004), the Court of Appeals clarified the standard of "imminent risk," and the factors courts must weigh in deciding applications pursuant to FCA §1022, §1027 and §1028. Here, the court must consider whether the "children were actually or imminently harmed by reason of [the parent's] failure to exercise even minimal care in providing them with proper oversight," examine the "special vulnerabilities of the child," and conduct an objective evaluation of parental behavior that determines, "would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing." Id. at 370, 372.

Pursuant to Nicholson, the court "must do more" than identify the existence of a risk of serious harm. Rather, a 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. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interest. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim (FCA §1027 [b] [iii], [iv]). Id. at 379. In addition, Nicholson holds that, in an application for a child's return under FCA §1028, a court must engage in a "balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal." Id. at 380.

The court finds that Respondent Mother testified credibly. Her testimony was forthcoming and she demonstrated insight and thoughtfulness in considering how the incident occurred, although she ultimately did not know what happened. She appeared earnest in continuing with services such as therapy, even though no longer recommended, and taking extra precaution to prevent injury in the future. The court also finds Respondent Father's testimony to be credible, and he similarly demonstrated continued willingness to engage in services and take precautions to ensure the Child's safety. Lastly, the court finds CPS testimony to be credible, but ignores ACS's own investigation into the matter, where a doctor treating the Child told ACS that his injuries could be due to co-sleeping. While not dispositive, the court finds troubling that ACS provided little evidence regarding the force required to cause such an injury or the likelihood of the injury occurring as a result of an accident, such as during co-sleeping; further, CPS did not appear to be aware of this alternative explanation despite it being in ACS's notes.

Proof of injuries sustained by a child which would ordinarily not be sustained or exist except by reasons of the acts or omissions of the parent shall be prima facie evidence of child abuse or neglect. Matter of James P., 137 AD2d 461 (1st Dep't 1988). After the Petitioner has made a prima facie showing, the burden shifts to the parent to offer a satisfactory explanation to rebut the evidence of abuse. Matter of Sharnetta N., 120 AD2d 276 (1st Dep't 1986). However, at issue here is whether the Child remains at imminent risk requiring continued removal, or if that risk can be mitigated or eliminated such to insure his best interests. See, Nicholson, supra.

Certain facts before the court are not in dispute. It is not in dispute that the Child sustained multiple unexplained injuries, including a tear to the lingual (tongue) frenum and a minimally displaced skull fracture. It is not in dispute that Respondent Mother and Respondent Father do not have any certain explanation for how a 3-month-old child received such a serious injury. It is also not in dispute that Respondent Father and Respondent Mother have engaged in and completed all services asked of them, continue to engage in therapy although not required, visited the Child almost every single day (RM Ex. D), and that there have never been any safety concerns during the visits, even after those visits were significantly expanded to overnights.

Despite this, the agency has maintained that it opposes the release of the Child to Respondent Mother and Respondent Father because they have not demonstrated "insight" into how the injury to the Child happened  ² . While the court in no way minimizes the absence of a concrete explanation for the Child's injury, and in particular the skull fracture, both parents testified credibly that they were not aware of any specific event that could have caused the Child's injuries. Both parents speculated that the mouth injury could have occurred due to the Child's pacifier and noted that they now understand the dangers of co-sleeping, and at least one of the doctors treating the Child indicated that these accounts could explain the cause of the Child's skull fracture and mouth injury. While it is highly concerning that such injuries occurred while the Child was only in the care of Respondent Mother and Respondent Father, the standard on a 1028 hearing is not whether there is imminent risk, but whether that imminent risk continues or can be mitigated and balanced against the Child's best interests. Here, the court finds that the risk can be mitigated.

While initially supporting remand, throughout this hearing the AFC has maintained that the Child should be returned home. The AFC argued that the testimony of Respondent Mother and Respondent Father should be credited and that there are several possible explanations as to how the Child's injuries were sustained. Further, the AFC argued that both parents have completed their services and any concerns that remain can be mitigated, noting that the harm of removal outweighs risk of residing with family

Although the agency's stated position is that, because the parents have not demonstrated "insight," the Child therefore remains at imminent risk, such position is belied by the record. Indeed, the parents have demonstrated insight. Respondent Mother's therapist letter states that she "demonstrated responsibility," "actively engaged in the process," "showed a positive attitude and genuine willingness to learn," and was "receptive to feedback, recommendations, and strategies." (RM Ex. A). Similarly, Respondent Father's therapist described him as "calm, cooperative, and engaged" (RF Ex. A) and that "[d]uring the sessions [he] demonstrated responsibility" (RF Ex. C) and "demonstrates insight into the circumstances that led to the involvement of ACS" (RF Ex. D). Respondent Mother testified at length as to how she has gone over the events of that day to try and piece together what happened, what she can do differently and what she has learned and won't do again, such as co-sleeping. As the AFC raised, and this court agrees, the agency appears to be conflating "insight" with an explanation.

In balancing the harm, as required under Nicholson, the court finds that in addition to the benefit that services have provided to Respondent Mother and Respondent Father in terms of additional insight, safeguards are already in place to eliminate any imminent risk, including that the Child's grandmother plays an active role in caring for the Child. The Child was placed with her at the time of removal, and she has continued to provide care for the Child during Respondent Mother's workday since the court ordered extended visits. By all accounts, the Child's grandmother is responsive to ACS's inquiries and has abided by the court's orders. Further, there is significant harm to the Child being separated from his parents during such a tender age that could disrupt healthy bonding. Although the parents have visited the Child almost daily, these visits are not the same as caring for a child in their home. The Child is also separated from his sibling, and the court has considered these factors in balancing the risk of any harm with the Child's best interests.

Lastly, as to Respondent Mother's request for ongoing extermination and fumigation services, ACS has not articulated any opposition. Further, ACS has previously provided such services and, given the Child will be returned to Respondent Father and Respondent Mother's care, such continued services are necessary to ensure the health, safety and well-being of the Child.

Accordingly, it is hereby

ORDERED that Respondent Mother's petition for immediate return of the Child is GRANTED; and it is further

ORDERED that the Child is released to his parents, Respondent Mother and Respondent Father under the following conditions:

1. The Child shall be cared for by the maternal grandmother while Respondent Mother is working;

2. Respondent Mother and Respondent Father shall comply with ACS supervision, including announced and unannounced visits;

3. Respondent Mother and Respondent Father shall comply with all reasonable referrals on notice to counsel;

4. Respondent Mother and Respondent Father shall take the Child to all his medical appointments and comply with all medical recommendations;

5. Respondent Mother and Respondent Father shall make the Child available to meet with his attorney;

6. The Child shall sleep in his own age-appropriate sleep setting such as a crib; and

7. Respondent Mother and Respondent Father shall sign all necessary HIPAAs on behalf of themselves and the Child on notice to counsel.

ORDERED that this order is stayed up until 5:00 p.m. on October 8, 2026; and it is further

ORDERED that Petitioner is to pay for ongoing fumigation and extermination services for Respondent Mother's home as needed; and it is further

ORDERED that the permanency hearing on October 19, 2026 at 11:30am — 12pm is hereby converted to a pretrial conference and the trial date of October 21, 2026 is vacated; and it is further

ORDERED that any relief not specifically granted is otherwise denied.

This constitutes the decision and order of this court.

DATED:October 7, 2026

ENTER:

Hon. Lydia Antoncic, J.F.C.

FOOTNOTES

1.   At the end of ACS' case, the AFC moved for dismissal, arguing that ACS failed to meet its prima facie burden, which the court denied. "In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference that may be drawn therefrom. The issue of credibility is irrelevant and should not be considered." Janice M. v. Terrence J., 96 AD3d 482 (1st Dep't 2012) citing Matter of Mamantov v. Mamantov, 86 AD3d 540, 541, 927 N.Y.S.2d 140 (2d Dep't 2011), lv. denied 17 NY3d 715, 2011 WL 5041647 [2011]; Matter of Ramroop v. Ramsagar, 74 AD3d 1208, 1209, 902 N.Y.S.2d 422 (2d Dep't 2010).

2.   As will be set forth below, it is unclear what more, if anything, Respondent Father and Respondent Mother can do to demonstrate "insight." Without articulating what that would be, ACS has essentially taken a position that nothing short of an explanation with certitude as to how the Child was injured would be acceptable. Such a rigid position would essentially result in the Child remaining in care indefinitely, despite any imminent risk being ameliorated.

Lydia Antoncic, J.