This matter was scheduled for a hearing at respondent's request pursuant to § 1028 of the Family Court Act. However, based on the record, he is not entitled to such a hearing as the children were not removed from his care as defined in the statute. Matter of Lucinda R., 85 AD3d 78 (2d Dep't. 2011), and Matter of Elizabeth C., 156 AD3d 193 (2d Dep't. 2017), do not hold otherwise.

Lucinda R. stands for the proposition that when the court, in response to a petition brought by the state, orders a child to be taken from a respondent parent and released to a non-custodial/non-respondent parent, the child is "removed" for the purposes of section 1028. Elizabeth C. stands for the proposition that when a respondent parent, non-respondent parent, and child are living together pre-petition, and when, due to state intervention, the court orders the respondent parent excluded from the home, the child is also "removed" within the meaning of section 1028.

Here, however, Mr. M. had already left the family home where he, the children, and their [*2]mother resided. He did so in a legally voluntary way. According to the 15-year-old, the mother, and Mr. M. himself, Mr. M. left the home in mid-February when Ms. G. kicked him out because he had been cheating on her. There is no indication that he filed an Article 6 petition in the wake of that incident to restore his custodial status. It is true that ACS started an investigation around that time, but the Article 10 petition was not filed and the order excluding him from the home were not entered until March 7.

It was not state intervention that caused Mr. M. to leave the home and the children. Indeed, the order of protection in this case does not contain language excluding him from a specific address, language which is often added to such orders to specify that the order's effect is to interfere with the respondent's otherwise valid claim to reside at the particular location. Here, there was no reason to add such language, because it was a non-state actor who caused him to leave: Ms. G. She did so several weeks before state intervention. He was, essentially, a non-custodial parent at the time ACS filed its case. To read the current facts as the equivalent of a "removal" would be to grant any non-custodial parent the right to a § 1028 hearing giving them an opportunity to achieve a custodial status they did not even have before state intervention. The word "removal" as used in the statute, and as explicated by the above-cited cases, cannot be stretched so far.