| Matter of Sara A. (Ashik A.) |
| 2016 NY Slip Op 05562 [141 AD3d 646] |
| July 20, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Sara A. Administration for Children'sServices, Respondent; Ashik A., Appellant, et al., Respondent. (Proceeding No. 1.) In theMatter of Maya A. Administration for Children's Services, Respondent; Ashik A.,Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter of Zara A.Administration for Children's Services, Respondent; Ashik A., Appellant, et al.,Respondent. (Proceeding No. 3.) In the Matter of Ehsan A. Administration for Children'sServices, Respondent; Ashik A., Appellant, et al., Respondent. (Proceeding No.4.) |
Cheryl Gammone, Staten Island, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and TahirihM. Sadrieh of counsel), for petitioner-respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Susan Clement ofcounsel), attorney for the children.
Appeal from an order of the Family Court, Kings County (Elizabeth Barnett, J.),dated April 10, 2015. The order, insofar as appealed from, after a hearing, denied thefather's application to release the subject children to him, and directed that the childrenremain in the care of the father's aunt and uncle during the pendency of the neglectproceedings.
Ordered that the order is affirmed insofar as appealed from, without costs or [*2]disbursements.
The Administration for Children's Services (hereinafter ACS) commenced theseneglect proceedings against the father and the mother following the emergency removalof the four subject children on March 26, 2015. The neglect allegations against the fathercenter on his alleged history of domestic violence against the mother in the presence ofthe children.
The Family Court held a combined hearing pursuant to Family Court Act§§ 1027 and 1028 on the father's application to release the children tohim during the pendency of the neglect proceedings (see Matter of William C.,209 AD2d 408, 408 [1994]). During the hearing, the children were placed with thefather's aunt and uncle, and the father was directed not to reside in the home with thechildren, although he was allowed liberal supervised visitation. Following the hearing, inan order dated April 10, 2015, the Family Court denied the father's application anddirected that the children were to remain in the care of the aunt and uncle during thependency of the neglect proceedings, that the father would have liberal supervisedvisitation with the children, and that the father was to comply with all ACS referrals. Thefather appeals.
As an initial matter, the father's arguments concerning the emergency removal of thechildren are academic in light of the order dated April 10, 2015 (see Matter of Forrest S.-R. [ShirleyX.S.], 101 AD3d 734, 735-736 [2012]; Matter of Angelique L., 42 AD3d 569, 570-571[2007]).
Following a hearing pursuant to Family Court Act §§ 1027 or1028, "if the court finds that removal is necessary to avoid imminent risk to the child'slife or health, it shall remove or continue the removal of the child" (Family Ct Act§ 1027 [b] [i]; see Family Ct Act § 1028 [a]). If thecourt finds imminent risk, it must then decide "whether continuation in the child's homewould be contrary to the best interests of the child" and whether "reasonable efforts weremade . . . to make it possible for the child to safely return home" (Family CtAct §§ 1027 [b] [ii]; 1028 [b]). The court must balance the imminentrisk to the child "against the harm removal might bring," and determine whether removal"is in the child's best interests" (Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]). Thecourt also "must weigh, in the factual setting before it, whether the imminent risk to thechild can be mitigated by reasonable efforts to avoid removal" (id. at378-379).
Here, there was a sound and substantial basis in the record for the Family Court'sdetermination that the children's lives or health would be at imminent risk if they werereleased to the custody of the father during the pendency of these proceedings (see Matter of Joseph S., 43AD3d 408, 409 [2007]). The father correctly contends that the court failed tosufficiently weigh whether the imminent risk to the children could be "mitigated byreasonable efforts to avoid removal" (see Nicholson v Scoppetta, 3 NY3d at 378),as the court simply listed several areas of concern related to mitigation without actuallyanalyzing whether those concerns could, in fact, be mitigated (see id.). However,upon the exercise of our factual review power (see Matter of Austin M. [Dale M.], 97 AD3d 1168, 1169[2012]; Matter of Serenity S.[Tyesha A.], 89 AD3d 737, 739 [2011]; Matter of Leon G., 7 AD3d 524, 525 [2004]), we find thatthe risk to the children in this case cannot be mitigated, as the evidence demonstrated thatthe father would not comply with any order issued in an attempt to mitigate the risk to thechildren (see Matter of JasmineW. [Michael J.], 132 AD3d 774, 775 [2015]; Matter of Gabriel James M., 59AD3d 448, 448 [2009]; Matter of Xavier J., 47 AD3d 815, 815-816 [2008]).Dillon, J.P., Cohen, Barros and Connolly, JJ., concur.