| Matter of Alan C. (Thomas C.) |
| 2011 NY Slip Op 05268 [85 AD3d 912] |
| June 14, 2011 |
| Appellate Division, Second Department |
| In the Matter of Alan C. Administration for Children's Services,Respondent; Thomas C., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and EllenRavitch of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),Attorney for the Child.
In a child abuse proceeding pursuant to Family Court Act article 10, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Kings County (Hamill, J.),dated February 23, 2010, as, after a hearing, denied his application for return of the child to hiscustody pursuant to Family Court Act § 1028, and continued the remand of the child to thecustody of the Administration for Children's Services. By decision and order on motion of thisCourt dated April 8, 2010, so much of the order as denied the father's application for return of thechild to his custody pursuant to Family Court Act § 1028 and continued the remand of thechild to the custody of the Administration for Children's Services was stayed pending hearing anddetermination of the appeal.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withoutcosts or disbursements, and the father's application pursuant to Family Court Act § 1028 isgranted.
Although, during the pendency of this appeal, the Family Court awarded the father temporarycustody of the child, his appeal is not academic since the removal of the child created apermanent and significant stigma (seeMatter of Jesse J., 64 AD3d 598, 600 [2009]; Matter of C. Children, 249 AD2d540 [1998]).
Pursuant to Family Court Act § 1028, an application for return of a child "shall" begranted, unless the court finds that "the return presents an imminent risk to the child's life orhealth" (Family Ct Act § 1028 [a]). In reaching that determination, the Family Court mustbalance the imminent risk to the child's life or health with the best interests of the child, and whatreasonable efforts were made to avoid removal or continuing removal (see Nicholson v Scoppetta, 3 NY3d357, 378-380 [2004]). A removal does not require evidence of actual injury; persuasiveevidence of serious abuse and a reason to fear an imminent recurrence [*2]is sufficient (see Matter of Martha A. [Diana C.], 75 AD3d 476, 477 [2010],citing Nicholson v Scoppetta, 3 NY3d at 381 [2010]).
In the instant case, the petitioner sought the removal of the child when the father refused toconsent to accepting certain services, which were never fully explained to him. Rather thanseeking court-mandated services, the petitioner sought immediate removal. The Family Courtfound that the petitioner failed to make reasonable efforts to avoid removal.
The Family Court nevertheless granted the removal based upon bruises and related injuries tothe child. At a hearing pursuant to Family Court Act § 1028, evidence was submitted thatthe child and his father explained that those injuries were accidentally incurred. There was noevidence presented which ruled out the claim that those injuries were accidentally incurred. Theexplanation that the child incurred bruises while play-fighting with other children wascorroborated by the testimony of a school guidance counselor that the child engaged inaggressive play-fighting with his peers.
Further, the petitioner waited over six weeks after bruises were observed on the child's bodybefore commencing the instant proceeding. In the interim, no new injuries were observed,indicating that the child faced no imminent risk to his life or health.
Nevertheless, the Family Court concluded that the return of the child presented "an imminentrisk to the child's life or health" (Family Ct Act § 1028 [a]). We find that the record as awhole fails to provide a sound and substantial basis for that conclusion. Accordingly, the ordermust be reversed insofar as appealed from, and the father's application pursuant to Family CourtAct § 1028 for the return of the child is granted. Angiolillo, J.P., Florio, Belen and Roman,JJ., concur.