| Matter of Xavier J. |
| 2008 NY Slip Op 00499 [47 AD3d 815] |
| January 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Xavier J. Administration for children's Services ofthe City of New York, Appellant; Francesca J. et al., Respondents. |
—[*1] Elizabeth J. Fee, New York, N.Y., for respondent Francesca J. Patrick R. Garcia, Brooklyn, N.Y., for respondent Shabur C. Eli Yeger, Brooklyn, N.Y., Law Guardian.
In a child protective proceeding pursuant to Family Court Act article 10, the petitionerappeals, as limited by its brief, from so much of an order of the Family Court, Kings County(Elkins, J.), dated July 11, 2007 [2007 NY Slip Op 74449(U)], as, after a hearing pursuant toFamily Court Act § 1027, inter alia, paroled the subject child to the custody of the motherunder its supervision. By decision and order on motion of this Court dated July 27, 2007,enforcement of the order was stayed to the extent of remanding the subject child to the custody ofthe petitioner pending hearing and determination of the appeal.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, without costs or disbursements, and the subject child shall remain in the custody ofthe petitioner pending final determination of the neglect petition.[*2]
The petition alleges that the mother derivativelyneglected the subject child, an infant born in June 2007, based upon past abuse and neglect casesinvolving the child's older siblings, one of whom died from being shaken by the mother, as wellas the continuing risk posed by the father's drug abuse and violent behavior toward the mother.At a hearing held pursuant to Family Court Act § 1027 to determine whether the childshould be removed from the mother's custody pending final determination of the neglect petition,the Family Court found that the mother had demonstrated that she posed no risk to the subjectinfant because she had successfully undergone therapy and had acted appropriately with the oldersiblings during supervised visitation. The court further determined that, although the father'sbehavior posed a significant continuing risk to the subject child, that risk was mitigated byissuing an order of protection. We disagree.
In determining whether, pursuant to Family Court Act § 1027, a child should beremoved from the parent's custody pending final determination of the neglect petition, the courtmust "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" (Nicholson v Scoppetta, 3 NY3d357, 380 [2004]). As part of that analysis, the court must "balance [the] risk against the harmremoval might bring" (id. at 378).
Under the circumstances of this case, the Family Court improvidently exercised its discretionin directing that the mother have custody of the child pending determination of the neglectpetition. Although the mother pleaded guilty to manslaughter in connection with the death, inDecember 2001, of an infant in her care, the mother subsequently failed to acknowledge that heractions in shaking the baby caused the death (see Matter of Umer K., 257 AD2d 195, 199[1999]). Moreover, the mother's responses during the hearing on the instant matter indicate thatshe did not comprehend the seriousness of the father's behavior and failed fully to appreciate therisk it posed to the child. In light of the record before us, the safer course is not to return the childto the mother's custody pending the full fact-finding hearing and a final determination of theneglect petition (see Matter of Nyasia J.,41 AD3d 478, 479 [2007]; Matter of Janih M., 8 AD3d 384, 385 [2004]; Matter of RobertH., 307 AD2d 293, 294 [2003]). Spolzino, J.P., Santucci, Lifson and Covello, JJ., concur.