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IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied:

Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence of the child’s physical injuries and her statements, that the mother was the person who inflicted the injuries, it was an improvident exercise of discretion to determine that the risk of harm could be mitigated by the conditions it imposed on the mother in the order under review … .

The court improvidently minimized both the nature and extent of the risk to the child and overstated the potential impact of its order on the child’s safety. Nothing in the mother’s testimony indicated that she understood the emotional harm she caused the child or expressed any genuine remorse over her actions. Initially, she tried to attribute the child’s injuries to an unrelated incident that took place several months earlier. She then claimed to be unaware of how the injuries occurred and ultimately opted to “plead the fifth.” Taken as a whole, the mother’s testimony reflects a lack of insight into how her conduct led to the child’s removal from her care. This lack of understanding further undercuts Family Court’s conclusion that services would be sufficient to mitigate the risk of harm posed to the child while in the mother’s care, and its belief that the mother would comply with the service plan. Although the mother took steps to enroll in services, the mere enrollment is insufficient to overcome the substantial evidence indicating that returning the child to her care would pose a risk to the child’s health and safety. Matter of M.M. (Chelsea B.), 2025 NY Slip Op 05887, First Dept 10-23-25

Practice Point: Here Family Court’s determination that imposing conditions for the child’s return to mother, who had injured the child, would ensure the child’s safety was not supported by the evidence. Therefore it was an abuse of discretion to order the child’s return to mother during the pendency of the neglect proceedings.​

 

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