MATTER OF JESSE M. v. CYNTHIA L

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Docket Number

No. 2009-06132, (Docket Nos. N-6518/08, N-6519/08, N-6520/08, N-6521/08).

Attorney(S)

Steven Banks, New York, N.Y. (Tamara Steckler and Judith Stern of counsel), attorney for the children, nonparty-appellant pro se. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Ellen Ravitch of counsel), for petitioner-respondent. Leighton M. Jackson, New York, N.Y., for nonparty-respondent.

Judges

Reinaldo E. Rivera
Robert J. Miller
Leonard B. Austin

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In the Matter of JESSE M., a Child Alleged to be Neglected. ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent; CYNTHIA L., Respondent. STEVEN BANKS, as Attorney for the Child, Nonparty Appellant; JOSEPH M., Nonparty Respondent. (Proceeding No. 1.) In the Matter of NIKOLAS L., a Child Alleged to be Neglected. ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent; CYNTHIA L., Respondent. STEVEN BANKS, as Attorney for the Child, Nonparty Appellant; JOSEPH M., Nonparty Respondent. (Proceeding No. 2.) In the Matter of SAPPHIRE M., a Child Alleged to be Neglected. ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent; CYNTHIA L., Respondent. STEVEN BANKS, as Attorney for the Child, Nonparty Appellant; JOSEPH M., Nonparty Respondent. (Proceeding No. 3.) In the Matter of SHAWN M., a Child Alleged to be Neglected. ADMINISTRATION FOR CHILDREN'S SERVICES, Respondent; CYNTHIA L., Respondent. STEVEN BANKS, as Attorney for the Child, Nonparty Appellant; JOSEPH M., Nonparty Respondent. (Proceeding No. 4.)

Ordered that the order dated July 1, 2009, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Richmond County, for further proceedings consistent herewith.

The Family Court improvidently exercised its discretion in awarding temporary custody of the subject children Jesse M., Sapphire M., and Shawn M. to the father without a hearing. As the New York City Administration for Children's Services correctly concedes, questions of fact exist as to whether the father is a "suitable" temporary custodian (Family Ct Act § 1017 [a]). Therefore, a hearing is necessary to determine the question of his suitability ( see Family Ct Act § 1011 [one purpose of Family Court Act § 1017 is to "help safeguard (the infant's) physical, mental, and emotional well-being"]; Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725; see also Matter of Harriet U. v Sullivan County Dept. of Social Servs., 224 AD2d 910, 911 [defining "suitability" as requiring a best interest determination]).

Contrary to the Family Court's determination, Matter of Alfredo S. v Nassau County Dept. of Social Servs. ( 172 AD2d 528) is not applicable to this case.

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