IN RE: ROMEO O. (Anonymous). (2018)

DECISION & ORDER

In four related proceedings pursuant to Family Court Act article 10, the mother and the father separately appeal from an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated July 31, 2017.  The order, after a hearing pursuant to Family Court Act § 1028, denied the separate applications of the mother and the father in Proceeding No. 2 for, inter alia, the return of the subject child, Autumn M., to their custody during the pendency of the proceeding.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children's Services (hereinafter ACS) filed, inter alia, a petition against Sita P.–M., Autumn M.'s mother, and Vincent M., Autumn M.'s father (hereinafter together the appellants), alleging that they had derivatively abused or neglected Autumn M., and temporarily removed her from the appellants' home, based upon allegations that, under circumstances evincing a depraved indifference to human life, the appellants had recklessly or intentionally caused serious physical injury to Sita P.–M.'s three-year-old grandson, Romeo O., while he was in the appellants' custody and care.  Thereafter, the appellants separately applied for the return of Autumn M. to their custody during the pendency of the proceeding.  Following a hearing pursuant to Family Court Act § 1028, the Family Court denied their applications.

An application pursuant to Family Court Act § 1028 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” (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” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 378, 787 N.Y.S.2d 196, 820 N.E.2d 840).  The 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” (Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840).  “In reviewing a Family Court's determination of an application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed, this Court must determine whether a sound and substantial basis in the record supports the Family Court's determination” (Matter of Julissia B. [Navasia J.], 128 A.D.3d 690, 691, 7 N.Y.S.3d 596;  see Matter of Alex A.E. [Adel E.], 103 A.D.3d 721, 722, 960 N.Y.S.2d 147;  Matter of Alan C. [Thomas C.], 85 A.D.3d 912, 914, 925 N.Y.S.2d 174).

Here, there is a sound and substantial basis in the record for the Family Court's determination denying the appellants' separate applications pursuant to Family Court Act § 1028 for the return of Autumn M., as there was evidence that a return of Autumn M. to the appellants would present an imminent risk to her life or health (see Matter of Elijah G. [Chastity G.], 158 A.D.3d 762, 68 N.Y.S.3d 749;  Matter of Xiomara C. [Karen A.], 156 A.D.3d 631, 632, 64 N.Y.S.3d 575).

BALKIN, J.P., LEVENTHAL, MILLER and MALTESE, JJ., concur.