IN RE: DENIM A. (2023)

Orders, Family Court, New York County (Maria Arias, J.), entered on or about January 25, 2023, which, after a hearing, denied petitioner Administration for Children's Services's (ACS) application pursuant to Family Court Act § 1027 to remove the subject child from the parents’ custody and place him in the custody of ACS pending the outcome of the neglect proceeding and temporarily released the child to respondent father subject to certain conditions, unanimously reversed, on the facts and in the exercise of discretion, without costs, the application granted, and the child placed in the custody of ACS pending the outcome of the neglect proceeding.

On review of the evidence and testimony submitted at the hearing held pursuant to Family Court Act § 1027, we find that the record supports a determination that the subject child's life or health was at imminent risk of harm (Family Court Act § 1027[b][i]).  The record includes evidence that the father had engaged in acts of domestic violence against the mother, including punching her in the stomach while she was in the hospital recovering from a Caesarean section, and while in the presence of the newborn child, whom he grabbed from her (see Matter of Esther N. [Onyebuchi N.], 206 A.D.3d 564, 564, 171 N.Y.S.3d 96 [1st Dept. 2022];  Matter of Bobbi B. [Bobby B.], 165 A.D.3d 587, 587, 87 N.Y.S.3d 177 [1st Dept. 2018]).  Given the imminent risk of harm that the father's conduct posed to the child, and the court's acknowledgement of the serious concerns raised by this conduct, it was an improvident exercise of the court's discretion to release the child to the father's care, and the conditions imposed were insufficient to mitigate the risk (see Matter of Jairro F., 284 A.D.2d 124, 125, 725 N.Y.S.2d 544 [1st Dept. 2001];  Matter of Kimberly H., 242 A.D.2d 35, 39–40, 673 N.Y.S.2d 96 [1st Dept. 1998]).  Even if the order had been conditioned on the father participating in a domestic violence program, that would not have been sufficient to mitigate the risk of immediate release of the child to his care, since the father continued to deny that domestic violence occurred and showed no insight into the issues that gave rise to the neglect proceeding (see Matter of Kyng F. [Kareem F.], 203 A.D.3d 597, 598, 162 N.Y.S.3d 734 [1st Dept. 2022];  Matter of Nicholas O. [Jenny F.], 185 A.D.3d 587, 588–589, 125 N.Y.S.3d 138 [2d Dept. 2020]).  Furthermore, the father's testimony that he had lived with his aunt since 2010, except for the months he lived with the mother, was directly contradicted by the aunt's testimony that he did not live with her until the previous week, raising concerns about his willingness to comply with ACS supervision and his ability to provide a stable home for the infant.  Accordingly, the court's denial of ACS's application for removal of the child and order temporarily releasing the child to the father's care prior to completion of the fact-Finding hearing did not serve the child's best interests (see Nicholson v. Scoppetta, 3 N.Y.3d 357, 377–378, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]).

We have considered the father's remaining arguments and find them unavailing.