IN RE: IVEN J.E. (Anonymous). (2021)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated January 7, 2020.  The order, after a hearing, denied the mother's application pursuant to Family Court Act § 1028 for the return of the subject children to her custody.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, and the mother's application pursuant to Family Court Act § 1028 for the return of the subject children to the mother's custody is granted.

In August 2019, the petitioner commenced neglect proceedings against the mother and the father, in response to allegations that the father had slapped and choked the mother in the presence of their three young children.  As a result of this domestic violence incident, the mother was directed to, among other things, cooperate with the petitioner in its supervision of the children and enforce a series of orders of protection issued against the father on behalf of the children and the mother.  Upon the mother's alleged failure to do so, the children were removed from the mother's custody in November 2019.  The mother then made an application pursuant to Family Court Act § 1028 for the return of the children.  Following a hearing, the Family Court denied the mother's application.  The mother appeals.

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child's life or health’ ” (Matter of Audrey L. [Marina L.], 147 A.D.3d 838, 839, 47 N.Y.S.3d 78, quoting Family Ct Act § 1028[a] ).  “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’ ” (Matter of Romeo O. [Sita P.-M.], 163 A.D.3d 574, 575, 81 N.Y.S.3d 87, quoting Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840).  “Ultimately, the Family Court ‘must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests’ ” (Matter of Julissia B. [Navasia J.], 128 A.D.3d 690, 691, 7 N.Y.S.3d 596, quoting Nicholson v. Scoppetta, 3 N.Y.3d at 358, 787 N.Y.S.2d 196, 820 N.E.2d 840).  “On appeal, this Court must assess whether the record provides a sound and substantial basis to support the Family Court's determination” (Matter of Nicholas O. [Jenny F.], 185 A.D.3d 587, 588, 125 N.Y.S.3d 138).

Here, the Family Court's determination denying the mother's application pursuant to Family Court Act § 1028 for the return of the children to her custody lacks a sound and substantial basis in the record (see Matter of Saad A. [Umda M.], 167 A.D.3d 596, 597, 89 N.Y.S.3d 249).  The circumstances of this case show that any concerns that the mother would be unable or unwilling to enforce the orders of protection as against the father or prevent him from entering her home did not amount to an imminent risk to the children's life or health that could not have been mitigated by reasonable efforts to avoid removal.  The petitioner's witnesses testified that, throughout their investigation, they did not have any concerns regarding the safety or well-being of the children while in the mother's care.  In addition, the petitioner offered to change the locks and place rail guards on the windows of the mother's home, but never did so.

We also disagree with the Family Court's finding that the mother failed to address or acknowledge the circumstances that led to the removal of the children (see Matter of Chloe W. [Tara W.], 165 A.D.3d 681, 682, 85 N.Y.S.3d 103).  While testimony shows that the mother was initially reluctant to cooperate with the petitioner's investigation or enforce the orders of protection against the father, after the children were removed from the home, the mother testified that she would do so.  The mother also substantially complied with the petitioner's service plan (see Matter of Matthew W. [Mei Qi B.], 125 A.D.3d 677, 678, 2 N.Y.S.3d 611), and her testimony showed that she understood the threat that the father posed to her, as well as the detrimental effect that observing domestic violence would have on her children.

Accordingly, the mother's application pursuant to Family Court Act § 1028 for the return of the children to the mother's custody should have been granted.

DECISION & ORDER ON MOTION

Motion by the respondent-appellant to strike certain material on pages 12 through 13 of the petitioner-respondent's brief on an appeal from an order of the Family Court, Queens County, dated January 7, 2020, on the ground that it refers to matter dehors the record.  By decision and order on motion of this Court dated October 19, 2020, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion to strike certain material on pages 12 through 13 of the petitioner-respondent's brief on the ground that it refers to matter dehors the record is granted, and the portion of the petitioner-respondent's brief identified as section F of the “Statement of the Case” is deemed stricken and has not been considered in the determination of the appeal.

AUSTIN, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.