New York Family Law Blog
The appellant (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the 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 New York City Administration for Children’s Services (hereinafter ACS) filed petitions in the Family Court, 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 non-respondent 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. Instead, the 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. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1½ years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.
The question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement 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. Although the Family Court returned the children to the mother while the determination of this appeal was pending, we find that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.
On February 5, 2009, after the subject children were found wandering the streets in the early morning hours of February 4, 2009, ACS filed petitions pursuant to Family Court Act § 1024 to remove the children from the mother’s custody and place them in the custody of their father and paternal grandmother. The petitions alleged that on February 4, 2009, at 3:30 A.M., ACS removed the children from the mother’s custody on an emergency basis because the parents were unavailable, and that the circumstances of removal were such that a risk existed as to the children’s life, health, or safety. Finally, ACS asserted that it had insufficient time to obtain a court order pursuant to Family Court Act § 1022, since the removal occurred outside of the court’s business hours.
At a hearing held on February 5, 2009, and upon the request of ACS, the Family Court paroled the children to the non-respondent father and paternal grandmother, who lived together. The Family Court also entered a temporary order of protection directing the mother to stay away from the children, except for ACS-supervised visits. The Family Court explained to the father, who asked for custody of the children during this hearing, that the neglect proceedings would be conducted before any custody proceedings.
A Suffolk County Family Lawyer said the Family Court then adjourned the matter for nearly four months, until June 2, 2009.
On that date, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. The attorney for the children stated that the matter might be best addressed by a hearing under Family Court Act § 1061 to modify or vacate the order of protection, or under the father’s pending custody petition. Counsel for ACS did not address the merits of the mother’s request because she had not received notice of it. On June 8, 2009, the Family Court held a conference on the petitioner’s request for a Family Court Act § 1028 hearing, at which time the mother’s attorney indicated that the mother was “willing to reserve” her request. The parties then went on to address other visitation issues, and the matter was continued until July 2, 2009.
On July 2, 2009, the mother reported that her visits with the children were uneventful and that she accordingly wanted the children paroled back to her. However, since neither ACS nor the attorney for the children were prepared to consent to the mother’s request, the mother orally resubmitted her request for a hearing pursuant to Family Court Act § 1028. The matter was then further adjourned until July 27, 2009.
On July 27, 2009, the Family Court issued an order denying the mother’s request for a Family Court Act § 1028 hearing because it found that “when a child is moved from the [petitioner’s] home to the non respondent father’s home, that is not a removal and it does not generate a basis for a 1028 hearing.” The Family Court reasoned that “[FCA] 1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent.” As an alternative to address the order of protection, the Family Court granted the application of the attorney for the children for a Family Court Act § 1061 hearing. The Family Court scheduled that hearing for September 1, 2009, although the hearing was ultimately adjourned until June 28, 2010.
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. On the mother’s appeal from the denial of her request for a Family Court Act § 1028 hearing, we reverse.
While the determination of this appeal was pending, this Court learned that, in an order dated October 20, 2010, the Family Court directed the return of the children to the mother. Accordingly, the mother’s appeal challenging the denial of her application for a Family Court Act § 1028 hearing is moot, since she has now received the relief that she would have received had the Family Court Act § 1028 hearing been conducted. We note, however, that the mother did not obtain such relief until more than 16 months after she first requested a Family Court Act § 1028 hearing, far longer than the 3 court days within which Family Court Act § 1028 hearings are mandated to occur. Under the circumstances, we find that the issue raised on this appeal involves an exception to the mootness doctrine.
Family Court Act § 1028 mandates an immediate hearing and a determination on placement within three court days. Where, as here, a parent is denied his or her request for a hearing pursuant to Family Court Act § 1028, appellate review of such a denial cannot be completed before three court days have elapsed. As such, this issue is capable of repetition and likely to evade review. Moreover, there is a high likelihood that the issue presented on this appeal is capable of repetition. Indeed, the issue of whether a Family Court Act § 1028 hearing is necessary where children are paroled to relatives has arisen numerous times at the trial level, resulting in a split of authority as to its resolution.
Turning now to the merits, we conclude that the Family Court erred in denying the mother’s application for a hearing under Family Court Act § 1028.
The disposition of the mother’s application here turned on the meaning of the word “removal,” as used in the statute. The Family Court found that there was no removal within the meaning of Family Court Act § 1028 because “when a child is moved from the [petitioner’s] home to the non respondent father’s home, that is not a removal and it does not generate a basis for a 1028 hearing.” The Family Court reasoned, “1028 hearings protect the primacy of parental rights as against the state, not as against the parent vs. parent.” We disagree.
In assessing the Family Court’s interpretation of the statute, we begin with the language of the statute itself. On its face, Family Court Act § 1028 does not limit a hearing only to parents whose children have been placed in the custody of a governmental agency. Indeed, there is no qualification to its application whatsoever. It plainly and simply states that, upon the application of a parent of a child who has been temporarily removed, the court shall hold a hearing to determine whether the child should be returned, and this must be done within three court days without adjournment.
These rules of strict construction, however, cannot be applied without regard to the statute as a whole, as ” its various sections must be considered together and with reference to each other'”.
As we move through part 2 of article 10, the result is the same. The Legislature uses the word “remove” in a broad, unqualified sense. A recitation of each instance where the word is used is not needed. The title of part 2 itself-“Temporary Removal and Preliminary Orders”-indicates that part 2, as a whole, is concerned with the removal of a child from his or her home due to dangerous conditions. It logically follows that to escape such conditions; the child must necessarily be removed from that home immediately. This is exactly what Family Court Act § 1024 in particular, and the rest of part 2 of article 10 generally, contemplates.
We, therefore, hold 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. In either case, it is the State acting within its parens patriae power effectuating that transfer and removal. Numerous Appellate Division decisions make it clear that part 2 of article 10, of which Family Court Act § 1028 is part, is concerned with the State’s power to disrupt a parent’s physical custody of a child. Accordingly, 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 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.
For the foregoing reasons, the Family Court should have granted the mother’s request for a hearing under Family Court Act § 1028 based upon the removal of the children from her home and their placement into the custody of the father. Accordingly, the order is reversed insofar as appealed from, on the law, and the petitioner’s application for a hearing pursuant to Family Court Act § 1028 is granted.
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