IN RE: Prince Mc. (Anonymous).  Administration for Children's Services (2011)

Submitted—September 30, 2011

DECISION & ORDER

Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorney for the children Prince Mc., Elijah Mc., Tanzeniah Mc., Majestic Mc., and Terrance Mc.

In six related child protective proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Kings County (Beckoff, J.), dated November 17, 2010, which, without a hearing, denied her motion to return the subject children to her custody pursuant to Family Court Act § 1028.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing pursuant to Family Court Act § 1028, to be held with all convenient speed, and a new determination of the mother's motion thereafter.

A hearing pursuant to Family Court Act § 1028 is intended to give a parent an opportunity for the prompt return of his or her children pending trial, and a Family Court has no discretion to deny a parent's application pursuant to section 1028 without a hearing if the statute's conditions are satisfied (see Matter of Kristina R., 21 AD3d 560, 562–563;  Matter of Cory M., 307 A.D.2d 1035, 1036;  Matter of Melissa H., 62 A.D.2d 1045).   Under the circumstances of this case, the Family Court improperly denied the mother's motion to return the subject children to her custody pursuant to Family Court Act § 1028 without holding a hearing (see Family Ct Act § 1028[a];  Matter of Cory M., 307 A.D.2d at 1036).

Contrary to the determination of the Family Court, the mother's prior waiver of her right to a hearing pursuant to Family Court Act § 1028(a), which occurred before she made the present motion to return the subject children to her custody pursuant to Family Court Act § 1028, did not warrant the denial of her present motion without a hearing.  Family Court Act § 1028 expressly permits the making of an application under that statute at any time during the pendency of the proceedings, notwithstanding a prior waiver of the right to a hearing under that statute (see Family Ct Act § 1028[a] ).

MASTRO, J.P., ANGIOLILLO, BELEN and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court