Admin. for Children's Servs. v. Margarita K. (In re Daniella G.)

167 N.Y.S.3d 815 (Mem)

In the MATTER OF DANIELLA G. (Anonymous).

Administration for Children's Services, respondent;

v.Margarita K. (Anonymous), appellant.

In the Matter of Nathan G. (Anonymous).

Administration for Children's Services, respondent;

v.Margarita K. (Anonymous), appellant.

2021–06262

Docket Nos. N–5466–21, N–5467–21

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 16, 2022

June 8, 2022

Yasmin Daley Duncan, Brooklyn, NY, for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (John Moore and Chloe K. Moon of counsel), for respondent.

Justine Luongo, Attorney–in–Charge of the Criminal Defense Practice, New York, NY (Dawne A. Mitchell and Riti P. Singh of counsel), attorney for the children.

MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, SHERI S. ROMAN, WILLIAM G. FORD, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Queens County (Dean T. Kusakabe, J.), dated July 30, 2021. The order, after a hearing, granted the petitioner's application pursuant to Family Court Act § 1027 to remove the subject children from the custody of the mother and place the children with the nonrespondent father pending the determination of the proceedings, and denied the mother's application pursuant to Family Court Act § 1028 for the return of the children to her custody during the pendency of the proceedings.

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

The Administration for Children's Services (hereinafter ACS) filed petitions alleging that the mother neglected the subject children by failing to provide them with proper supervision or guardianship due to her untreated mental illness and by unreasonably inflicting excessive corporal punishment upon the children. ACS thereafter made an application pursuant to Family Court Act § 1027 to remove the children from the mother's custody and place the children with the nonrespondent father pending the determination of the proceedings, and the mother made an application pursuant to Family Court Act § 1028 for the return of the children to her custody during the pendency of the proceedings. The court scheduled a hearing on the applications and directed that, pending the hearing, the children were to remain in the father's care. In an order dated July 30, 2021, the Family Court, after a hearing, denied the mother's application and granted ACS's application. The mother appeals.

"Following a hearing pursuant to Family Court Act §§ 1027 or 1028, ‘if the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child’ " ( Matter of Sara A. [Ashik A.], 141 A.D.3d 646, 647, 35 N.Y.S.3d 450, quoting Family Ct Act § 1027[b][i] ; see Nicholson v. Scoppetta, 3 N.Y.3d 357, 376, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "If the court finds imminent risk, it must then decide ‘whether continuation in the child's home would be contrary to the best interests of the child’ and whether ‘reasonable efforts were made ... to make it possible for the child to safely return home" ( Matter of Sara A. [Ashik A.], 141 A.D.3d at 647, 35 N.Y.S.3d 450, quoting Family Ct Act § 1027[b][ii] ; 1028[b]; see Nicholson v. Scoppetta, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "[A] 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 at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840 ). "Since the Family Court has the advantage of viewing the witnesses and assessing their character and credibility, its determination in this regard should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Kai‘Ere D. [Carissa B.], 200 A.D.3d 778, 779, 155 N.Y.S.3d 125 [internal...