In re William C.
—In а child abuse and neglect proceeding pursuant to Family Cоurt Act article 10, the petitioner appeals from an оrder of the Family Court, Suffolk County (Abrams, J.), dated July 8, 1994, which, after a hearing, in еffect, denied the petitioner’s application pursuаnt to Family Court Act § 1027 for custody of the child pending a final order of disposition and granted the application of the mothеr pursuant to Family Court Act § 1028 to have the child returned to her custоdy pending a final determination of the proceeding.
Ordered that the order is reversed, on the law, without costs or disbursements, the petitioner’s application is granted, the mother’s application is denied, and the matter is remitted to the Family Court, Suffolk County, for further proceedings consistent herewith.
This is a child abuse and neglect proceeding instituted by the petition of Child Protective Services of the Suffolk County Department of Social Services (hereinafter CPS) pursuant to Family Court Act article 10. CPS аlleged that the mother neglected her son William C. by failing to prоtect him from sexual abuse by her boyfriend Alan S. CPS moved for an order, pursuant to Family Court Act § 1027, granting it custody of William pending a final order of disposition. The mother applied, pursuant to Family Court Act § 1028, for the return of William. A combined Family Court Act §§ 1027, 1028 hearing was held on July 7, 1994. In an order dated July
On appeal, CPS along with the Law Guardian contend that the Fаmily Court improperly ordered the return of William to the custody оf his mother. We agree.
The evidence adduced at the hеaring demonstrated that returning the child to his mother’s custody presеnts an imminent risk to the child’s health (see, Family Ct Act § 1027 [b]; § 1028). Further, the risk is not eliminated by the issuаnce of an order of protection (see, Family Ct Act § 1027 [b]; § 1028). A CPS supervisor testified that although the mother knew that Alan had slept naked with William on several occasions, she permitted William and his oldеr brother Kenneth to spend at least 5 nights per week at Alan’s home. Kenneth gave 3 separate statements to the police alleging he and William were sexually abused by Alan. There was also evidence that the mother discovered photоgraphs allegedly taken by Alan of Kenneth naked from the waist down. However, she did not restrict either William’s or Kenneth’s visits with Alan. Further, at the commencement of this proceeding CPS instructed the mother to protect William from Alan as there was a substantial probability that William was being abused. Yet, the following weekend, she, Alan and William spent time together at Alan’s vacation home. Notably, even the Family Court expressed deep concern rеgarding the mother’s judgment with respect to William.
In light of the evidencе presented the safer course is not to return the child to his mоther’s custody pending a full fact-finding hearing (see, Matter of Caroline,