IN RE: DESTINY G. (2025)

Order, Family Court, Bronx County (Cynthia Lopez, J.), entered on or about January 22, 2024, which, after a hearing under Family Court Act § 1028, denied respondent father's application to return the subject children to his care pending the fact-finding hearing, unanimously reversed, on the facts and in the exercise of discretion, without costs, and the application granted.

The record lacks a sound and substantial basis for concluding that the identified risks to the children of remaining in the father's care during the pendency of this proceeding could not be mitigated with reasonable efforts (Family Court Act § 1028[b];  Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]).  Although the lack of direct overnight supervision, even with family living in other apartments in the building, posed some risk for the then–10–year–old children, Family Court should have weighed the children's maturity level and the father's willingness to make arrangements for the children's overnight supervision in order for them to return to his care (see Matter of Emmanuela B. [Jean E.B.], 147 A.D.3d 935, 935, 47 N.Y.S.3d 406 [2d Dept. 2017]).  Respondent agency also did not establish the regularity or the severity of the father's use of a belt to warrant the children's continued removal, and did not identify any specific or recent incident to support the rejection of the father's testimony that he had never left a mark in disciplining the children.  Nor did Family Court appear to weigh the father's willingness to stop using physical punishment so that the children could be returned to his care (see Matter of Peter G., 6 A.D.3d 201, 203, 774 N.Y.S.2d 686 [1st Dept. 2004]).

With respect to the condition of the home, the Family Court acknowledged that the state of the apartment was improved, which showed the father was willing to eliminate or had eliminated the identified risks (see Matter of Saad A., 167 A.D.3d 596, 598, 89 N.Y.S.3d 249 [2d Dept. 2018]).