Matter of Dylan T. (Luismar P.S.), 2024 NY Slip Op 02922 [227 AD3d 1088]

May 29, 2024

Appellate Division, Second Department

[*1]

In the Matter of Dylan T. Administration for Children’s Services, Respondent; Luismar P.S., Appellant, et al., Respondent.

Charles Lawson, Brooklyn, NY, for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Rebecca L. Visgaitis and Eva L. Jerome of counsel; Kathryn Siegmund on the brief), for petitioner-respondent.

Twyla Carter, New York, NY (Dawne A. Mitchell and Andrew T. Ford of counsel), attorney for the child.

In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) a decision of the Family Court, Kings County (Alicea Elloras-Ally, J.), dated October 27, 2023, and (2) an order of the same court, also dated October 27, 2023. The order, insofar as appealed from, upon the decision, made after a hearing, granted that branch of the petitioner’s application pursuant to Family Court Act § 1027 which was to remove the subject child from the custody of the mother and place the child in the custody of the petitioner pending the determination of the proceeding.

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v J.A. Green Constr. Corp. , 100 AD2d 509 [1984]); and it is further, Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The Administration for Children’s Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging, inter alia, that the mother neglected the subject child, who was approximately two years and nine months old at the time, by, among other things, riding with the child on what was variously described as a moped, motor scooter, or E-bike, from Brooklyn into Queens without providing the child with a helmet. During the trip, the vehicle, which was driven by the father, was involved in an accident, resulting in certain injuries to the child, which were treated at a local hospital.

After a hearing, the Family Court granted ACS’s application pursuant to Family Court Act § 1027 to remove the child and place the child in the custody of the ACS pending the determination of the proceeding. The mother appeals. [*2] “ ’Following a hearing pursuant to Family Court Act §§ 1027 or 1028, if the court finds that removal is necessary to avoid imminent risk to the child’s life or health, it shall remove or continue the removal of the child’ ” ( Matter of Daniella G. [Margarita K.] , 206 AD3d 730 , 731 [2022] [internal quotation marks omitted], quoting Matter of Sara A. [Ashik A.] , 141 AD3d 646 , 647 [2016]; see Family Ct Act § 1027 [b] [i]; Nicholson v Scoppetta , 3 NY3d 357 , 380 [2004]; see also Family Ct Act §§ 1022 [a] [iii]; 1027 [b] [ii]; 1028 [b]). In determining whether removal or continuing removal is necessary, the Family Court “must weigh . . . whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” ( Nicholson v Scoppetta , 3 NY3d at 378; see Matter of Riley P. [Raymond S.] , 171 AD3d 757 , 759 [2019]; Matter of Baby Boy D. [Adanna C.] , 127 AD3d 1079 , 1080 [2015]). The Family Court must also balance a finding of imminent risk “against the harm removal might bring, and it must determine factually which course is in the child’s best interests” ( Nicholson v Scoppetta , 3 NY3d at 378; see Matter of Daniella G. [Margarita K.] , 206 AD3d at 731-732; Matter of Riley P. [Raymond S.] , 171 AD3d at 759).

The Family Court’s determination that the child’s life or health would be at imminent risk if the child were returned to the mother’s care during the pendency of this proceeding, and that the risk could not be mitigated by reasonable efforts short of removal, is supported by a sound and substantial basis in the record ( see Family Ct Act §§ 1027, 1028; Matter of Solai J. [Kadesha J.] , 190 AD3d 973 , 974 [2021]). Significantly, the mother testified at the removal hearing that she had arranged for the father to transport her and the child to Queens without first providing the child with a helmet or other safety devices despite the availability of public transportation because “it was quicker.” Accordingly, the Family Court did not err in granting that branch of the petitioner’s application which was to remove the child from the mother’s custody and place the child in the custody of the ACS pending the determination of the proceeding. Iannacci, J.P., Wooten, Dowling and Taylor, JJ., concur..