Decisions of Interest

Parent Entitled to Quick Hearing No Matter Where Removed Child Goes

The Appellate Division, Second Department, held in May that a Family Court Act ' 1028 hearing is triggered not only when a child is removed from her home and placed in government-administered foster care, but also when a child is removed from the home of one parent and temporarily placed into the custody of another parent or relative. Matter of Lucinda R., NN-02585-09, NYLJ [web_id_#], at *1 (2d Dept. 5/17/11) (Dillon, J.P., Dickerson, Eng, Belen, JJ.).

The children who were the subject of the removal, all under the age of seven, were found wandering the street alone in February 2009 in the early morning hours. On the basis of this incident, the New York City Administration for Children's Services (ACS) filed petitions in Family court, Queens County, alleging that the mother neglected her children.

The Family Court issued an order of protection permitting the mother contact with her children only through ACS-supervised visits. The children were then paroled to the care of their nonrespondent father and their paternal grandmother, with whom the father lived. On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act (FCA) ' 1028 for the return of her children. In pertinent part, FCA ' 1028 provides that when a child is temporarily removed from a parent, that parent may request a hearing on the question of whether the child should be returned and “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.” Family Court denied the mother's request for a ' 1028 hearing, finding that such hearing was not required because the children were paroled to the father's care. The court there reasoned that “[FCA] 1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent.” Instead, Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act ' 1061 to modify the order of protection. Ultimately, before the instant appeal was heard, Family Court returned the children to their mother, but not before they had spent nearly a year and half in their father's custody.

The appeals court dealt first with the mootness issue, stating, “The benefit to the mother being granted a Family Court Act ' 1028 hearing is that such hearing would be convened much sooner than a hearing under Family Court Act ' 1061. Indeed here, the Family Court Act ' 1061 hearing was ultimately adjourned to June 28, 2010, more than a year after the mother's original request for a hearing.” Generally, a case is deemed moot and unreviewable unless three conditions are present: 1) there is a likelihood of repetition, either between the parties or among other members of the public; 2) the question presented involves a matter typically evading review; and 3) the matter involves novel issues not previously adjudicated. Matter of Hearst Corp. v. Clyne, 50 NY2d 707. Here, all three conditions were met, as a Family Court's denial of the right to a ' 1028 hearing would necessarily not be reviewed on appeal and settled prior to the running of the three-day time period for holding such hearings. This being the case, the issue was capable of repetition in similar cases, and likely to evade review. The issue was also novel at the appellate level, the Second Department found, although Family Courts throughout the state have dealt with the question before, and have come to conflicting conclusions.

The court next turned to the ultimate question: whether an FCA ' 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placed into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Family Court had cited to no authority for its position that ' 1028 hearings are intended to protect parental rights as against the state, not as against the other parent. Further, ' 1028 itself contains no language distinguishing the situation in which a child is placed with relatives versus when the child is placed with strangers in a foster care situation. In addition, nowhere else in Article 10 of the Family Court Act was such a distinction made. Instead, the Second Department found, “A survey of statutes within article 10 shows that the word 'removal' or 'removed' is used in the context of the State's effectuation of the child's removal from the home,” but does not discuss to where they are removed. “Accordingly,” concluded the court, “we find that the applicability of a Family Court Act ' 1028 hearing is not dependent on whether the child removed is placed with another parent or whether the child is placed in foster care. In sum, the trigger [to an FCA ' 1028 hearing] is that the State has acted to effectuate the removal of the child from the home and placed him or her in the custody of another.”

Parent Entitled to Quick Hearing No Matter Where Removed Child Goes

The Appellate Division, Second Department, held in May that a Family Court Act ' 1028 hearing is triggered not only when a child is removed from her home and placed in government-administered foster care, but also when a child is removed from the home of one parent and temporarily placed into the custody of another parent or relative. Matter of Lucinda R., NN-02585-09, NYLJ [web_id_#], at *1 (2d Dept. 5/17/11) (Dillon, J.P., Dickerson, Eng, Belen, JJ.).

The children who were the subject of the removal, all under the age of seven, were found wandering the street alone in February 2009 in the early morning hours. On the basis of this incident, the New York City Administration for Children's Services (ACS) filed petitions in Family court, Queens County, alleging that the mother neglected her children.

The Family Court issued an order of protection permitting the mother contact with her children only through ACS-supervised visits. The children were then paroled to the care of their nonrespondent father and their paternal grandmother, with whom the father lived. On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act (FCA) ' 1028 for the return of her children. In pertinent part, FCA ' 1028 provides that when a child is temporarily removed from a parent, that parent may request a hearing on the question of whether the child should be returned and “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.” Family Court denied the mother's request for a ' 1028 hearing, finding that such hearing was not required because the children were paroled to the father's care. The court there reasoned that “[FCA] 1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent.” Instead, Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act ' 1061 to modify the order of protection. Ultimately, before the instant appeal was heard, Family Court returned the children to their mother, but not before they had spent nearly a year and half in their father's custody.

The appeals court dealt first with the mootness issue, stating, “The benefit to the mother being granted a Family Court Act ' 1028 hearing is that such hearing would be convened much sooner than a hearing under Family Court Act ' 1061. Indeed here, the Family Court Act ' 1061 hearing was ultimately adjourned to June 28, 2010, more than a year after the mother's original request for a hearing.” Generally, a case is deemed moot and unreviewable unless three conditions are present: 1) there is a likelihood of repetition, either between the parties or among other members of the public; 2) the question presented involves a matter typically evading review; and 3) the matter involves novel issues not previously adjudicated. Matter of Hearst Corp. v. Clyne , 50 NY2d 707. Here, all three conditions were met, as a Family Court's denial of the right to a ' 1028 hearing would necessarily not be reviewed on appeal and settled prior to the running of the three-day time period for holding such hearings. This being the case, the issue was capable of repetition in similar cases, and likely to evade review. The issue was also novel at the appellate level, the Second Department found, although Family Courts throughout the state have dealt with the question before, and have come to conflicting conclusions.

The court next turned to the ultimate question: whether an FCA ' 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placed into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Family Court had cited to no authority for its position that ' 1028 hearings are intended to protect parental rights as against the state, not as against the other parent. Further, ' 1028 itself contains no language distinguishing the situation in which a child is placed with relatives versus when the child is placed with strangers in a foster care situation. In addition, nowhere else in Article 10 of the Family Court Act was such a distinction made. Instead, the Second Department found, “A survey of statutes within article 10 shows that the word 'removal' or 'removed' is used in the context of the State's effectuation of the child's removal from the home,” but does not discuss to where they are removed. “Accordingly,” concluded the court, “we find that the applicability of a Family Court Act ' 1028 hearing is not dependent on whether the child removed is placed with another parent or whether the child is placed in foster care. In sum, the trigger [to an FCA ' 1028 hearing] is that the State has acted to effectuate the removal of the child from the home and placed him or her in the custody of another.”