IN RE: NYOMI P. (Anonymous). (2024)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (Jacqueline D. Williams, J.), dated February 7, 2023.  The order, after a hearing, denied the mother's application pursuant to Family Court Act § 1028 for the return of the child Na'Toria P. to her custody during the pendency of the proceedings.

ORDERED that the order is affirmed, without costs or disbursements.

In October 2022, the petitioner commenced these proceedings pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected the child Na'Toria P. by failing to provide the child with proper supervision and guardianship, in that she left the child and the child's siblings alone at home, and that the mother was arrested on an outstanding warrant of which she had knowledge, but she failed to arrange for childcare in anticipation of her arrest.  The petitioner temporarily removed the child from the mother's custody.  The mother made an application pursuant to Family Court Act § 1028 for the return of the child to her custody.  After a hearing on the application, the Family Court denied the mother's application.  The mother appeals.

A parent's application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed “shall” be granted unless the Family Court finds that “the return presents an imminent risk to the child's life or health” (see Matter of Skkyy M.R. [Justin R.—Desanta C.], 206 A.D.3d 660, 168 N.Y.S.3d 544;  Matter of Cheryl P. [Ayanna M.], 168 A.D.3d 1062, 1063, 92 N.Y.S.3d 728).  The court's determination will not be disturbed if it is supported by a sound and substantial basis in the record (see Matter of Chase P. [Maureen Q.], 199 A.D.3d 807, 158 N.Y.S.3d 145;  Matter of Carter R. [Camesha B.], 184 A.D.3d 575, 122 N.Y.S.3d 906).  In making its determination, the 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” and “must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840;  see Matter of Romeo O. [Sita P.-M.], 163 A.D.3d 574, 575, 81 N.Y.S.3d 87).  The child services agency bears the burden of establishing that the child would be at imminent risk and therefore should remain in its custody (see Matter of Chase P. [Maureen Q.], 199 A.D.3d at 809, 158 N.Y.S.3d 145;  Matter of Carter R. [Camesha B.], 184 A.D.3d at 576, 122 N.Y.S.3d 906).

Here, the Family Court's determination as to the mother's lack of credibility should not be disturbed, as it is supported by the record (see Matter of Junny B. [Homere B.], 200 A.D.3d 687, 688, 154 N.Y.S.3d 848;  Matter of Zephyr D. [Luke K.], 148 A.D.3d 1013, 48 N.Y.S.3d 789).  There is a sound and substantial basis in the record for the court's determination that the return of the child to the mother would present an imminent risk to the child, and that the risk could not be mitigated by reasonable efforts to avoid removal (see Matter of Tatih E. [Keisha T.], 168 A.D.3d 935, 936, 92 N.Y.S.3d 352;  Matter of Gavin G. [Carla G.], 165 A.D.3d 1258, 1259, 87 N.Y.S.3d 595).

DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.