New York Family Law Blog
In this case, a New York Family Lawyer said the appellant is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours in February 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, a 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 child services-supervised visitation.
A New York Child Custody Lawyer said that the children were then paroled to the care of their nonrespondent father and his mother, with whom the father lived. Thereafter, 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 1 1/2 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.
A Staten Island Family Lawyer said 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, the Court finds 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.
A Staten Island Child Custody Lawyer said that while the determination of this appeal was pending, the Court learned that, in an order, 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.
The Court noted, 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.
“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal” Under the mootness doctrine, a court is ordinarily precluded from considering questions “which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment”. Generally, a case that is moot is unreviewable unless it fits within the exception, for which three elements must be shown: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on.
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. The Family Court, Kings County, held that the respondent father’s “right to a 1028 hearing was triggered once the neglect petition was filed and the court entered an order for supervised visitation and an order releasing the subject child to the temporary, sole custody of the mother” In a case, the father petitioned the Family Court, Queens County, for a Family Court Act § 1028 hearing after a temporary order of protection was issued against him to exclude him from the home that he, his wife, and their child lived. The Family Court held that a Family Court Act § 1028 hearing applies to situations when the child is removed from his or her home.
Since the father was being excluded from the home, a Family Court Act § 1028 hearing was inapplicable. Finally, in another case, the Family Court, Kings County, granted the mother’s petition for a Family Court Act § 1028 hearing where the Child was paroled to the nonrespondent father, even though the court also observed, “if this were a child protective proceeding, involving a removal and a placement with a foster parent or a kinship resource, the Court would be required to immediately return the child to the mother’s care. The Family Court did not cite any case law in support of this proposition.
Turning now to the merits, the Court concludes that the Family Court erred in denying the mother’s application for a hearing under Family Court Act § 1028. In relevant part, that section provides: “(a) Upon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the [attorney for the child for an order returning the child, the court shall hold a hearing to determine whether the child should be returned (i) unless there has been a hearing pursuant to on the removal of the child at which the parent or other person legally responsible for the child’s care was present and had the opportunity to be represented by counsel, or (ii) upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.”
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 hearing.” The Family Court reasoned that “1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent.”
The Court disagrees.
In assessing the Family Court’s interpretation of the statute, we begin with the language of the statute itself, “as the statutory text is the clearest indicator of legislative intent” “If the terms of the statute are clear and unambiguous, “ ‘the court should construe it so as to give effect to the plain meaning of the words used’ ”
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’ ” The purpose of article 10 of the Family Court Act is to “provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that the child’s needs are properly met” 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. This broad meaning of “removal” or “removed” is also used in Family Court Act § 1024(b)(iii), which grants authority to certain entities to remove children from their homes without a court order under certain circumstances. In subsection (a), the statute provides that certain entities may “take or keep a child in protective custody,” and the statute later sets forth in subsection (b)(iii) that these entities must “give, coincident with removal, written notice to the parent or other person legally responsible for the child’s care of the right to apply to the family court for the return of the child.” Again, the concept of “removal” is not qualified by any limiting or specifying language; it occurs when a child is removed from his or her home by the State.
The Court 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..
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 Court reversed the order insofar as appealed from, on the law, and the petitioner’s application for a hearing pursuant to Family Court Act § 1028 is granted.
A child should not be neglected by his own parents. During childhood days, the child is developing his body, physically, emotionally, and mentally. Here in Stephen Bilkis and Associates, our Kings County Family attorneys will help you prosecute the negligent parents. Likewise, our Kings County Custody lawyers will advise you in enforcing your rights before the Courts of Justice. Contact us now for a reliable advice.