Family Law: Mother Entitled To A Hearing On Return Of Children Who Had Been Removed From Her Home And Placed With Their Father

In the early morning hours of February 4, 2009, three children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the Garden City Administration for Children’s Services filed petitions in the Family Court, Queens County, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their father and his mother (the children’s paternal grandmother), with whom the father lived. On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care.

The Supreme Court, Appellate Division, Second Department held that the Family Court’s finding of a legal distinction between a child’s “removal” from the home and placement in the custody of another parent, on one hand, and placement in the custody of a governmental agency, on the other hand, is illusory.  The Court reasoned that the removal of children from their mother’s home and temporary placement into the custody of their father, on an emergency basis, was a “removal” triggering a hearing on the mother’s application for return of the children, even though the children were not placed into government-administered foster care. The statute requiring a hearing upon the application of a parent of a child who had been temporarily removed did not make any distinction between removal and placement into the custody of another parent, on one hand, and removal and placement into the custody of a governmental agency, on the other hand. Read the Court’s Opinion.

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