88 A.D.3d 885 · Appellate Division of the Supreme Court of the State of New York · Oct 18, 2011
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In the Matter of Prince Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 1.) In the Matter of Rashaun Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 2.) In the Matter of Elijah Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 3.) In the Matter of Tanzeniah Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 4.) In the Matter of Majestic Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 5.) In the Matter of Terrance Mc., an Infant. Administration for Children's Services, Respondent Wendell Mc., (Proceeding No. 6.)
886 A hearing pursuant to Family Court Act § 1028 is intended to give a parent an opportunity for the prompt return of his or her children pending trial, and a Family Court has no discretion to deny a parent’s application pursuant to section 1028 without a hearing if the statute’s conditions are satisfied (see Matter of Kristina R., 21 AD3d 560, 562-563 [2005]; Matter of Cory M., 307 AD2d 1035, 1036 [2003]; Matter of Melissa H., 62 AD2d 1045 [1978]).
Under the circumstances of this case, the Family Court improperly denied the mother’s motion to return the subject children to her custody pursuant to Family Court Act § 1028 without holding a hearing (see Family Ct Act § 1028 [a]; Matter of Cory M., 307 AD2d at 1036).
Contrary to the determination of the Family Court, the mother’s prior waiver of her right to a hearing pursuant to Family Court Act § 1028 (a), which occurred before she made the present motion to return the subject children to her custody pursuant to Family Court Act § 1028, did not warrant the denial of her present motion without a hearing.
Family Court Act § 1028 expressly permits the making of an application under that statute at any time during the pendency of the proceedings, notwithstanding a prior waiver of the right to a hearing under that statute (see Family Ct Act § 1028 [a]). Mastro, J.E, Angiolillo, Belen and Lott, JJ., concur.
