| Matter of Leroy R. |
| 2011 NY Slip Op 03892 [84 AD3d 485] |
| May 10, 2011 |
| Appellate Division, First Department |
| In the Matter of Leroy R., Jr., an Infant. New York CityAdministration for Children's Services, Appellant, et al.,Respondents. |
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Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 31,2010, which, following a hearing pursuant to Family Court Act § 1028, granted theapplication of respondent father to release the subject child to his custody on condition that thechild not be left alone with the respondent mother, and subject to the father demonstrating to the"reasonable satisfaction" of petitioner Administration for Children's Services (ACS) that there areappropriate arrangements in place to ensure that the child will not be left alone with the mother,unanimously reversed, on the law and the facts, and the application denied, without costs.
A court, when analyzing an application for a child's return under section 1028, "must engagein a balancing test of the imminent risk with the best interests of the child and, whereappropriate, the reasonable efforts made to avoid removal or continuing removal" (Nicholson v Scoppetta, 3 NY3d357, 380 [2004]; see Family Ct Act § 1028 [a]). The court properly found thatthe child was at imminent risk of harm if returned to its mother, but improvidently exercised itsdiscretion in ordering the conditional parole of the child to the father.
The record contains disturbing testimony and evidence as to the conduct of the subject child'sfather at the hospital where the child was born, and at the courthouse prior to the hearing. Thefather's graphic, profanity-laced death threats were directed at ACS staff and hospital personnelwithin hours of his son's birth.
On the first occasion, when he spoke on the phone to the ACS specialist assigned to the case,he called her a "bitch" and threatened to "fucking kill [her]" if she tried to remove the child fromthe hospital. The next day, the hospital social worker told the ACS specialist that the father hadappeared at the hospital and had "made threats . . . that he wanted to kill everyonein the whole world and he also wanted to kill everyone in the hospital." The social worker saidshe "was so fearful that she locked the doors of her office."
Subsequently, on a motion to renew, ACS presented an affidavit of the child's case plannerwho had observed the father on the day of the hearing. The case planner heard the father say thathe was going "to kill all the motherfuckers associated with taking his son from him" and, [*2]referring to the ACS specialist, that he would "gut the pretty onelike a fish." The case planner stated that the father "continued to make threats about how he wasgoing to get all the workers on the case even the lawyers." The case planner also observed thefather instructing the mother not to talk to her attorney who arrived for the hearing, and not tomove off the bench as they waited to see the judge.
The father's conduct raises questions as to how ACS workers can make any determinationregarding "appropriate arrangements" without coming into contact with the father, and thusputting themselves at risk. Further, such conduct by the father, described as "hostile and hateful"by the hospital social worker, suggests that the parole of the child to the father may pose as muchof an imminent risk of harm to the child as returning him directly to his mother.
Accordingly, we deny the father's section 1028 application in its entirety since any doubtconcerning the father's conduct must be resolved in favor of protecting the child (see Matterof Kasheena M., 245 AD2d 231 [1997]). Concur—Gonzalez, P.J., Friedman,Catterson, Renwick and Abdus-Salaam, JJ.