| Matter of Jesse M. (Cynthia L.) |
| 2010 NY Slip Op 03936 [73 AD3d 780] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jesse M., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Cynthia L., Respondent. Steven Banks, asAttorney for the Child, Nonparty Appellant; Joseph M., Nonparty Respondent. (Proceeding No.1.) In the Matter of Nikolas L., a Child Alleged to be Neglected. Administration for Children'sServices, Respondent; Cynthia L., Respondent. Steven Banks, as Attorney for the Child,Nonparty Appellant; Joseph M., Nonparty Respondent. (Proceeding No. 2.) In the Matter ofSapphire M., a Child Alleged to be Neglected. Administration for Children's Services,Respondent; Cynthia L., Respondent. Steven Banks, as Attorney for the Child, NonpartyAppellant; Joseph M., Nonparty Respondent. (Proceeding No. 3.) In the Matter of Shawn M., aChild Alleged to be Neglected. Administration for Children's Services, Respondent; Cynthia L.,Respondent. Steven Banks, as Attorney for the Child, Nonparty Appellant; Joseph M., NonpartyRespondent. (Proceeding No. 4.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and EllenRavitch of counsel), for petitioner-respondent. Leighton M. Jackson, New York, N.Y., for nonparty respondent.
In related child protective proceedings pursuant to Family Court Act article 10, StevenBanks, the attorney for the children, appeals from an order of the Family Court, RichmondCounty (McElrath, J.), dated July 1, 2009, which, without a hearing, authorized theAdministration for Children's Services to release the children Jesse M., Sapphire M., and ShawnM. to the temporary custody of their [*2]father, nonparty JosephM. By decision and order of this Court dated July 9, 2009, among other things, the order wasstayed pending hearing and determination of the appeal.
Ordered that the order dated July 1, 2009, is reversed, on the facts and in the exercise ofdiscretion, without costs or disbursements, and the matter is remitted to the Family Court,Richmond County, for further proceedings consistent herewith.
The Family Court improvidently exercised its discretion in awarding temporary custody ofthe subject children Jesse M., Sapphire M., and Shawn M. to the father without a hearing. As theNew York City Administration for Children's Services correctly concedes, questions of fact existas to whether the father is a "suitable" temporary custodian (Family Ct Act § 1017 [1] [a]).Therefore, a hearing is necessary to determine the question of his suitability (see FamilyCt Act § 1011 [one purpose of Family Court Act § 1017 is to "help safeguard (theinfant's) physical, mental, and emotional well-being"]; Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725 [2009];see also Matter of Harriet U. v Sullivan County Dept. of Social Servs., 224 AD2d 910,911 [1996] [defining "suitability" as requiring a best interest determination]).
Contrary to the Family Court's determination, Matter of Alfredo S. v Nassau CountyDept. of Social Servs. (172 AD2d 528 [1991]) is not applicable to this case. Rivera, J.P.,Florio, Miller and Austin, JJ., concur.