IN RE: DAVID G. (Anonymous). (2001)

In a proceeding pursuant to Family Court Act article 10, the intervenor-mother appeals from an order of the Family Court, Kings County (Segal, J.), dated July 13, 2000, which denied her motion to be released from the custody of the New York City Department of Corrections.   By decision and order dated September 12, 2000, this court directed that the appellant be released from custody pending the hearing and determination of this appeal.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

The Family Court abused its discretion in refusing to release the intervenor-mother from custody in view of the fact that she was unable to “perform the act or duty, required to be * * * performed, in order to entitle [her] to be released” (Judiciary Law § 775).   Specifically, she could not produce her son as directed by the Family Court because a California court had awarded permanent guardianship of the child to his grandparents pursuant to its emergency jurisdiction.   Accordingly, the mother's motion to be released from custody should have been granted.