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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028:

Family Court Act § 1028 “provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding” … . Upon an application of a parent whose child has been temporarily removed, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

… [A]lthough the 1028 hearing commenced within three court days of the mother’s application, it did not proceed expeditiously. It is currently calendared with continued hearing dates through late October 2024, at which time the infant subject children will have spent more than half their lives in foster care. … The plain language of the statute requires expediency. Family Court Act § 1028 is distinguishable from other sections of article 10 wherein those sections call for hearings to be conducted within the Family Court’s discretion … . No such discretion is provided by the plain language of Family Court Act § 1028.

Under the specific time constraints detailed by the plain language of Family Court Act § 1028 and given the potential and persistent harms of family separation, the mother is entitled to prompt judicial review of the children’s removal “measured in hours and days, not weeks and months” … . Conducting this 1028 hearing over a period of 30 minutes of hearing time scheduled in March, four hours scheduled in April, three hours in May, and four hours in June cannot be deemed prompt or expeditious judicial review. Matter of Emmanuel C.F. (Patrice M. D. F.), 2024 NY Slip Op 04482, First Dept 9-19-24

Practice Point: Family Court does not have the discretion to keep adjourning a Family Court Act 1028 hearing on mother’s petition to have her children returned to her. Mother is entitled, by the terms of the statute, to an expedited hearing.

 

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