| Matter of Prince Mc. (Wendell Mc.) |
| 2011 NY Slip Op 07429 [88 AD3d 885] |
| October 18, 2011 |
| Appellate Division, Second Department |
| In the Matter of Prince Mc., an Infant. Administration for Children'sServices, Respondent; Wendell Mc., Appellant. (Proceeding No. 1.) In the Matter of RashaunMc., an Infant. Administration for Children's Services, Respondent; Wendell Mc., Appellant.(Proceeding No. 2.) In the Matter of Elijah Mc., an Infant. Administration for Children'sServices, Respondent; Wendell Mc., Appellant. (Proceeding No. 3.) In the Matter of TanzeniahMc., an Infant. Administration for Children's Services, Respondent; Wendell Mc., Appellant.(Proceeding No. 4.) In the Matter of Majestic Mc., an Infant. Administration for Children'sServices, Respondent; Wendell Mc., Appellant. (Proceeding No. 5.) In the Matter of TerranceMc., an Infant. Administration for Children's Services, Respondent; Wendell Mc., Appellant.(Proceeding No. 6.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and KarenM. Griffin of counsel), for petitioner-respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), attorneyfor the children Prince Mc., Elijah Mc., Tanzeniah Mc., Majestic Mc., and TerranceMc.
In six related child protective proceedings pursuant to Family Court Act article 10, themother appeals from an order of the Family Court, Kings County (Beckoff, J.), dated November17, 2010, which, without a hearing, denied her motion to return the subject children to hercustody pursuant to Family Court Act § 1028.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Kings County, for a hearing pursuant to Family Court Act§ 1028, to be held with all convenient speed, and a new determination of the mother'smotion thereafter.
A hearing pursuant to Family Court Act § 1028 is intended to give a parent anopportunity for the prompt return of his or her children pending trial, and a Family Court has nodiscretion to deny a parent's application pursuant to section 1028 without a hearing if the statute'sconditions are satisfied (see Matter ofKristina R., 21 AD3d 560, 562-563 [2005]; Matter of Cory M., 307 AD2d 1035,1036 [2003]; Matter of Melissa H., 62 AD2d 1045 [1978]). Under the circumstances ofthis case, the Family Court improperly denied the mother's motion to return the subject childrento her custody pursuant to Family Court Act § 1028 without holding a hearing (seeFamily Ct Act § 1028 [a]; Matter of Cory M., 307 AD2d at 1036).
Contrary to the determination of the Family Court, the mother's prior waiver of her right to ahearing pursuant to Family Court Act § 1028 (a), which occurred before she made thepresent motion to return the subject children to her custody pursuant to Family Court Act §1028, did not warrant the denial of her present motion without a hearing. Family Court Act§ 1028 expressly permits the making of an application under that statute at any time duringthe pendency of the proceedings, notwithstanding a prior waiver of the right to a hearing underthat statute (see Family Ct Act § 1028 [a]). Mastro, J.P., Angiolillo, Belen andLott, JJ., concur.