The Second Department, reversing Family Court, determined the record did not support the return of the child to the parent’s custody after temporary removal. The Second Department found that the parent’s difficulty controlling the child’s brother, who requires constant supervision, put the child at risk:
“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'” … . “In a proceeding for removal of a child, the Family 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'” … . “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” … . On appeal, this Court must assess whether the record provides a sound and substantial basis to support the Family Court’s determination … .
Here, the Family Court’s determination granting the parents’ application pursuant to Family Court Act § 1028 for the return of the child to their custody lacks a sound and substantial basis in the record … . The evidence at the hearing demonstrates that the child’s sibling, Michael, has special needs that require him to be under constant supervision, and that on a prior occasion the parents’ inability to control Michael resulted in serious physical injuries to one of the child’s siblings. Notwithstanding the parents’ willingness to comply with court-ordered services, the parents and Michael had not yet completed those services at the time of the hearing. In our view, the parents’ inability to adequately control Michael would present an imminent risk to the child’s life or health if the child were returned to the parents. Given the circumstances of the family’s living situation at the time of the hearing, this risk could not be mitigated by the conditions imposed by the court. Matter of Nicholas O. (Jenny F.), 2020 NY Slip Op 03663, Second Dept 7-1-20