Matter of Alex A.E. (Adel E.)
2013 NY Slip Op 00914 [103 AD3d 721]
February 13, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 27, 2013


In the Matter of Alex A.E. Administration for Children's Services, Respondent; Adel E., Appellant.

[*1] Michael A. Fiechter, Bellmore, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Diana Lawless of counsel), for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Sena Kim-Reuter and Janet Neustaetter of counsel), attorney for the child.

In a child abuse proceeding pursuant to Family Court Act article 10, the father appeals from an order of the Family Court, Kings County (Gruebel, J.), dated June 5, 2012, which, after a hearing, denied his application for the return of the subject child to his custody pursuant to Family Court Act § 1028.

Ordered that the order is affirmed, without costs or disbursements.

Pursuant to Family Court Act § 1028, an application for return of a child "shall" be granted unless the court finds that "the return presents an imminent risk to the child's life or health" (Family Ct Act § 1028 [a]). In reaching its determination, the "court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal" (Nicholson v Scoppetta, 3 NY3d 357, 378 [2004]). The court "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests" (id.). Here, the record provides a sound and substantial basis for the Family Court's denial of the father's application for the return of the subject child to his custody pursuant to Family Court Act § 1028 (see Matter of DeAndre S. [Cleon W.], 92 AD3d 888 [2012]).

The father's contention that the Family Court erred in conducting an in-camera hearing with the child is unpreserved for appellate review (see generally Matter of Kimberly Z. [Jason Z.], 88 AD3d 1181, 1184 [2011]; Matter of Kleevuort C. [Fredlyn V.], 84 AD3d 1371 [2011]; Matter of Metcalf v Odums, 35 AD3d 865, 866 [2006]; Matter of Vanessa F., 9 AD3d 464 [2004]).

The father's remaining contentions are without merit. Rivera, J.P., Hall, Roman and Miller, JJ., concur.