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EVIDENCE DID NOT SUPPORT TEMPORARY REMOVAL OF CHILD FROM FATHER’S CUSTODY DURING THE PENDENCY OF A CHILD PROTECTIVE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support temporary removal of the child from father’s custody during the pendency of a child protective proceeding:

“[O]nce a child protective petition has been filed, Family Court Act § 1027(a)(iii) authorizes the court to conduct a hearing to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent”… . Upon such a hearing, temporary removal is only authorized where the court finds it necessary “to avoid imminent risk to the child’s life or health” … . “In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'” … .

Here, the petitioner failed to establish that Chloe would be subject to imminent risk if she remained in the father’s care pending the outcome of the neglect proceeding … . The hearing evidence showed that at no time did the father inflict excessive corporal punishment upon Chloe. In addition, the evidence showed that Dasanie may have been coached by Chloe’s mother, and Dasanie recanted, before several individuals, the allegations that the father inflicted excessive corporal punishment upon her. Matter of Chloe-Elizabeth A.T. (Albert T.), 2018 NY Slip Op 08666, Second Dept 12-19-18

 

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