2025 NY Slip Op 50689(U)
N.Y. Fam. Ct., Bronx Cty.2025Background
- The Administration for Children's Services (ACS) filed a petition alleging Ms. A abused and neglected her infant son, Y, after Y presented at a hospital with unexplained fractures.
- Y was born in May 2024, appeared healthy during his well visit on May 29, but on June 3, 2024, Ms. A brought him to the emergency room for decreased movement in his left arm; fractures were later detected through further imaging.
- Ms. A was hospitalized with depression (including post-partum depression) from June 10 to June 25, 2024, after Y’s injuries came to light. She participates in ongoing mental health and parenting services.
- Y was remanded from Ms. A’s care on June 13, 2024, but visitation gradually expanded to unsupervised and overnight visits without incident or objection.
- A combined fact-finding and 1028 (return application) hearing was held over 23 days. Both Ms. A and the child’s attorney argued for Y’s return and against a finding of imminent risk.
- The court’s decision was based primarily on whether Y would face imminent risk if returned to his mother, with ultimate factual findings about the injuries reserved for a separate determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Abuse/Neglect finding (imminent risk) | Child faces imminent risk of harm if returned to Ms. A due to unexplained fractures and mental health history | Ms. A is a caring mother, injuries unexplained, no imminent risk, compliant with services | No imminent risk; return to Ms. A with supervised conditions |
| Scope of 1028 hearing | Can determine abuse, imminent risk, and return in combined hearing | Combined hearing appropriate given overlap | Combined hearing proper, consistent with precedent |
| Ms. A’s mental health | Mother's depression and recent hospitalization contribute to risk of unsafe parenting | Ms. A recognizes illness, seeks help, compliant, no evidence harm to Y | Ms. A credible, mental health managed, no current risk |
| Visitation history | Limited contact appropriate due to pending abuse investigation | Expanded visits and positive interactions show Ms. A's fitness | No evidence that expanded visits caused harm; weighs against imminent risk |
Key Cases Cited
- In re Kristina R., 21 A.D.3d 560 (2d Dep't 2005) (supports combined 1028/fact-finding hearing)
- Nicholson v. Scoppetta, 3 N.Y.3d 357 (NY 2004) (sets standard for 'imminent risk' in Family Court Act § 1028 return)
- In re Philip M., 82 N.Y.2d 238 (NY 1993) (children may be released to parent even after abuse finding, with supervision)
- Matter of Radames S., 112 A.D.3d 433 (1st Dep't 2013) (court allowed supervised return to parent despite abuse findings)