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RETURN OF THE CHILDREN TO MOTHER AFTER A TEMPORARY REMOVAL WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined the return of children to mother after a temporary removal was not supported by a sound and substantial basis:

“An application pursuant to Family Court Act § 1028 to return 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”‘” … . The court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record … . 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'” … .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'” … . “Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care” … . The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody … . …

The evidence at the hearing demonstrated that, after one of the subject children reported to the mother that her older brother had been sexually abusing her since she was 10 years old, the mother did not address the sexual abuse and did not provide increased supervision for the subject children. Further, the petitioner demonstrated that the mother left one of the subject children in the older brother’s care, for at least a period of time, while she gave birth to the third subject child, in violation of an order dated March 23, 2018. Under the circumstances, we cannot agree that the return of two of the subject children to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the children’s life or health … . Matter of Carter R. (Camesha B.), 2020 NY Slip Op 03118, Second Dept 6-3-20

 

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