| Matter of Danazah B.D. (Audrey B.) |
| 2015 NY Slip Op 01633 [125 AD3d 964] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Danazah B. D., Also Known asDanazah B. Administration for Children's Services, Respondent; Audrey B.,Appellant. |
Chas Budnick, Brooklyn, N.Y. (Anne C. Reddy of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo andScott Shorr of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Judith Stern ofcounsel), attorney for the child.
Appeal from an order of the Family Court, Kings County (Ilana Gruebel, J.), datedJuly 25, 2014. The order, in effect, denied, without a hearing, the mother's motion for thereturn of the subject child pursuant to Family Court Act § 1028.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe matter is remitted to the Family Court, Kings County, for a hearing pursuant toFamily Court Act § 1028 and a new determination of the mother's motionthereafter.
The Family Court has no discretion to deny, without a hearing, a parent's applicationpursuant to Family Court Act § 1028 if the conditions of the statute aresatisfied (see Matter of PrinceMc. [Wendell Mc.], 88 AD3d 885, 886 [2011]; Matter of Kristina R., 21 AD3d560, 562-563 [2005]; Matter of Cory M., 307 AD2d 1035, 1036 [2003]).Here, since the conditions of the statute were satisfied (see Family Ct Act§ 1028), the Family Court erred by, in effect, denying the mother's motionfor return of the subject child pursuant to Family Court Act § 1028 withouta hearing (see Matter of Prince Mc. [Wendell Mc.], 88 AD3d at 886; Matterof Cory M., 307 AD2d at 1036).
Accordingly, we remit the matter to the Family Court, Kings County, for a hearingpursuant to Family Court Act § 1028 and a new determination of themother's motion thereafter. Skelos, J.P., Balkin, Hall and Maltese, JJ., concur.