In this newly filed child protective proceeding the Agency alleged the respondent mother, P. G. (hereinafter "Respondent Mother"), failed to provide the child with proper supervision and guardianship in that she left the subject child alone and allowed the subject child to be inflicted harm or substantial risk thereof. At arraignment on December 29, 2025, the Administration for Children's Service ("ACS") sought a release of the subject child, A.A-W A. (DOB: xx/xx/2020), to the non-respondent father, with court ordered supervision, limited order of protection against [*2]the Respondent Mother on behalf of the subject child, and that the Respondent Mother be permitted supervised visitation with agency discretion to expand to unsupervised day visits under the condition the Respondent Mother not leave the subject child alone. The attorney for the child had no position at that time ^[FN1] , only that the subject child remain in his school in Brooklyn. Counsel for the Respondent Mother requested a hearing pursuant to Family Court Act Section 1028 via oral application. Counsel for the Respondent Mother noted the Part would be down until January 6, 2026, and requested such hearing be held then and not to be sent to the intake part the following day. This Court granted the release of the subject child to The non-respondent Father with court order supervision, ACS to arrange a minimum of three (3) supervised visits per week for the Respondent Mother and the subject child prior to the next court date, the Respondent Mother was permitted daily electronic communication with the subject child from 5:00-6:00PM with no discussion of the court case, and that the subject child's school not be changed absent court order. The hearing began on January 6, 2026, and continued the following dates: January 7, 2026; January 9, 2026; and January 15, 2026.

After a review of the testimony and evidence the Respondent Mother's request pursuant to FCA Section 1028 is GRANTED for the reasons set forth below.

Petitioner submitted the following into evidence:

On January 6, 2026, the Agency called ACS Child Protective Specialist, S. L. (hereinafter "CPS L."), as their first and only witness. CPS L. testified the Respondent Mother's first contact with the subject child since the initial case was called in on December 20, 2025, was during a supervised visit at the agency, i.e. after filing of the petition on December 29, 2025. She testified that the visit occurred from 11:00AM-1:00PM and that the visit went "okay." She testified there were concerns in that the Respondent Mother and subject child were in the play area brought up by another CPS worker, CPS Toa. She testified CPS Toa heard the subject child ask the Respondent Mother a question and the Respondent Mother stated, "dad doesn't want me [*4]here." She testified she spoke to the Respondent Mother about what was said. She testified that the Respondent Mother stated she did not say that, got upset with her, and was yelling. She testified the subject child was present during this. She testified the visit continued and the Respondent Mother sat the subject child up in the corner with his PlayStation, the Respondent Mother then put her coat on and walked by her. She testified she stopped the Respondent Mother and asked where she was going. She testified the Respondent Mother stated she was going to get food. She testified the Respondent Mother proceeded to leave the visit, was gone for 20-25 minutes, and came back at approximately 12:45-12:50PM with food.

CPS testified that on December 31, 2025, she supervised a visit between the subject child and the Respondent Mother. She testified the visit was going well until the Respondent Mother pulled out "poppers" for New Years Eve. She testified the Respondent Mother gave a "popper" to the subject child and the subject child ran to the non-respondent Father to show him the "popper." She testified she stopped the subject child and told the Respondent Mother and subject child they cannot be popped inside the agency. She testified the Respondent Mother then pulled out another "popper" from her bag and popped it right in front of her. She testified she called Officer Arlington and told him the situation. She testified the Respondent Mother stated she did not know she was not permitted to "pop them." She testified the room smelled of smoke and the Respondent Mother gathered the confetti. She testified Officer A. took the rest of the "poppers" from the Respondent Mother.

CPS L. testified that the Respondent Mother's recommended services included therapy. She testified that she made a referral to CCM Psychotherapy and provided the referral to the Respondent Mother.

On cross-examination by the attorney for the child, CPS L. testified on December 22, 2025, she spoke to CPS S. at the office. She testified that CPS S. spoke to the subject child and the subject child did not tell her that the Respondent Mother had left him alone before. She testified on December 30, 2025, the agency supervised visit started on time, but the Respondent Mother came at 11:10AM and the non-respondent Father arrived at 11:20AM. She testified on December 31, 2025, the agency supervised visit started, but both parents were "kind of late." She testified the visit on January 2, 2026, went well.

On cross-examination by the Respondent Mother's attorney, CPS L. testified she was assigned to the family on December 22, 2025. She testified she first made phone calls to speak with resources. She testified she called the non-respondent Father, and he stated he was shocked by what had occurred. She testified the non-respondent Father stated he was upset with the Respondent Mother, and she notified him of the Order of Protection in place. She testified she notified the non-respondent Father the Order of Protection permitted the Respondent Mother to have contact with the subject child but could not commit crimes against him. She testified the Order of Protection was brought to her attention by the Respondent Mother and by the "court person who sends [CPS] them the Order of Protection." She testified prior to speaking with the non-respondent Father she had a conversation with her supervisor who told her there was a limited order of protection in place. She testified she told the non-respondent Father the Respondent Mother was permitted contact with the subject child and the only prohibition is that the Respondent Mother is not to commit crimes against the subject child.

CPS L. testified she spoke to the Respondent Mother on December 23, 2025. She testified the Respondent Mother called her and she reached out through the Respondent Mother's neighbor's phone. She testified the Respondent Mother stated she felt angry with herself about [*5]the incident. She testified the Respondent Mother admitted the subject child was left alone briefly when the subject child was asleep to drop off laundry and to get McDonalds to eat for breakfast. She testified the Respondent Mother stated she had not done that routinely and was grateful a stranger found the subject child and called 911. She testified the Respondent Mother stated she was alarmed the subject child left the home and the subject child had never done anything like that before. She testified the Respondent mother stated she had not had contact with the subject child at that time. She testified she told the Respondent Mother to consider the situation from the non-respondent Father's perspective. She testified the Respondent Mother stated she wanted contact with the subject child. CPS L. testified the Respondent Mother stated she was in agreement for the non-respondent Father to have the subject child for the holidays but wanted the subject child back for school.

CPS L. testified a family team meeting regarding the Respondent Mother's daughter, The non-subject-child, was held, but in relation to the instant case the Respondent Mother was upset and was hard on herself. She testified the Respondent Mother did not discuss her own childhood trauma. She testified the Respondent Mother stated she had her neighbor's phone as her phone was "cut off" by her uncle and she had to use her neighbor's phone. She testified she had communication with the Respondent Mother via text on the first number that her uncle is alleged to have "cut off."

CPS L. testified the Respondent Mother stated she was starting a new job and was experiencing stress related to her time throughout the day. She testified the Respondent Mother stated this was not an excuse as to what happened and expressed "a lot of remorse."

CPS L. testified that she also spoke with the subject child's school. She testified that the school reached out to her. She testified that the non-respondent Father has contacted the school to state the subject child would not be in attendance the rest of the week. She testified she was not surprised when the school said that as the non-respondent Father stated the subject child was stressed out and traumatized by the whole thing. She testified the non-respondent Father stated he did not feel that the subject child should go to school, and she told the non-respondent Father to call the school to tell them that information. She testified she agreed with the plan to not send the subject child to school.

CPS L. testified on December 22, 2025, she spoke to the non-respondent Father and told him there was a limited order of protection. She testified on December 23, 2025, the Respondent Mother stated she was trying to talk to the subject child and the non-respondent Father would not allow her to. She testified she spoke to the non-respondent Father on either December 23 or 24, 2025 and asked if the Respondent Mother could come to his home to see the subject child. She testified the non-respondent Father stated that the Respondent Mother could come to the house but not come inside due to the tension between them and the fact that his mother "does not care for her."

CPS L. testified that on December 23, 2025, she spoke to S. G. from Brooklyn Defenders Services. She testified Ms. S. G. sent her a copy of the order of protection, she asked what it meant, and Ms. S. G. explained in more detail. She testified she spoke to the non-respondent Father again and told him he should permit the subject child to have contact with the Respondent Mother. She testified the non-respondent Father stated he went to the Respondent Mother's home to get clothes for the subject child. She testified the non-respondent Father called for police assistance so there would be no altercation.

CPS L. testified she ran a background check on the non-respondent Father, submitted the [*6]Domestic Incident Reports, but at the time the information that the non-respondent Father's home was a safe place was from the non-respondent Father stated to her on the phone. She testified she did not ask the Respondent Mother in their first conversation if there was any domestic violence between her and the non-respondent Father. She testified she did not tell the Respondent Mother that the plan she had to pick up the subject child after the holidays may not work as they were going to file a case against her. She testified that she told the Respondent Mother to give herself some time, to let the subject child stay with the non-respondent Father through the holidays.

CPS L. testified the Respondent Mother stated she was uncomfortable about the child safety conference ("CSC"). She testified she told the Respondent Mother that lawyers were not permitted in the meeting, but a parent advocate would be present. She testified she told the non-respondent Father the same thing. She testified the CSC was held on December 26, 2025. She testified she texted the Respondent Mother's neighbor's phone. She testified she had a conversation with the Respondent Mother before December 26, 2025, in which the Respondent Mother stated she did not want to come on the call without counsel. She testified she did not reach out to Ms. G.^[FN2] to inform her the CSC was happening. She testified she was aware of the flyer protocol with counsel's information but did not provide it to the Respondent Mother.

CPS L. testified that on December 26, 2025, she texted the Respondent Mother stating the CSC was running behind due to the holiday and she would send the link once it was received. She testified the Respondent Mother called in at 12:30PM and she left the meeting to try and answer the phone. She testified she then tried to call the Respondent Mother back from the neighbor's phone, but the Respondent Mother did not pick up. She testified she was then in the meeting and saw the Respondent Mother called but she missed the call. She testified that she did not fill out the CSC summary, and that the host of the meeting did.

CPS L. testified that on December 30, 2025, both the Respondent Mother and subject child were excited and missed each other. She testified the Respondent Mother took photographs of the subject child's face. She testified that she did not notice any cut on the subject child's lip and did not ask why the Respondent Mother was taking photographs. She testified the subject child asked to go to the lobby to play with toys and the security guard told the Respondent Mother and subject child to go back to the room. She testified CPS Tia Clark was sitting at the desk and that is when CPS Clark reported she heard the Respondent Mother talk to the subject child about the non-respondent Father. She testified she did not ask the Respondent Mother what if anything she said about the non-respondent Father. She testified according to CPS Clark, the subject child said "where is daddy" to the Respondent Mother. She testified she told the Respondent Mother that negative talk about other parents is not allowed. She testified the Respondent Mother got upset in that moment.

CPS L. testified that during the first visit the Respondent Mother went to get the subject child food because he was hungry. She testified the Respondent Mother brought the subject child gloves and winter boots. She testified the Respondent Mother gave the subject child a tablet, she stated she does not know why the tablet was given. She testified the Respondent Mother told her the non-respondent Father was not picking up the phone. She testified she told the non-respondent Father what is expected of him. She testified there was no plan for visitation going [*7]forward as it depended on that day's court date. She testified there had not been a visit scheduled since January 2, 2026. She testified she had not been to the non-respondent Father's home. She testified she had not been to the Respondent Mother's home, but a colleague did and deemed it suitable. She testified she attempted to go to the Respondent Mother's home herself before December 20, 2025. She testified the subject child's school has never called in an oral report transmittal about the subject child. She testified the Respondent has an indicated case from 2016 in which the Respondent Mother left the subject child's older sibling, the non-subject-child, alone, and in 2021 where the Respondent Mother left the subject child and the non-subject-child alone. She testified in the 2016 case the older sibling was removed from the Respondent Mother's and later returned to her care. She testified the 2016 case was filed in court. She testified there was no case filed in court in 2021. She testified she never spoke to the Respondent Mother about what happened in 2016 or 2021. She testified the child the non-subject-child stated the subject child was not left alone ^[FN3] .

On January 8, 2026, ACS rested.

Ms. G. testified that she has lived in her current apartment for 9 years. She testified that her and the non-respondent father lived together until the subject child was four months old. She testified that the subject-child has never lived with the non-respondent Father other than those four months. Ms. G. testified that she does not really discipline the subject-child but will impose limits, such as no snacks. She testified that she is the primary caretaker for the subject-child.

She testified that she is a licensed cosmetologist and has her own business. She testified that on the evening of Friday, December 19, 2025, she was in the middle of working on a client. She testified that the service took her 8 hours to complete, and that the client came to her home around 1 PM. She testified that she stopped the services to retrieve the subject-child from school and that that the school is downstairs from her home. She testified that the client was with her until about 1:30AM and that the subject-child was with her as well. Ms. G. testified that the subject-child fell asleep in the bedroom at 11:30PM which is a later than normal bedtime for him. She further testified that after her client left, she laid down on the couch and fell asleep for about 2 hours then she woke up and decided to do laundry and pick up McDonald's breakfast for her and the subject-child around 3:40AM. She testified that she left the home at 3:40AM. She testified that sometimes she would do her laundry in the cellar of the basement, but it was not working at that time, so she went to the 24-hour laundromat. She testified that after dropping off her laundry she went to McDonald's to get breakfast.

Ms. G. testified that the subject-child usually sleeps through the night, and she went out without him due to the late hour and was gone 40-45 minutes. She testified that she has never run errands without him or left him home alone before, but she was trying to get everything done for the upcoming holidays and was starting a new job in the morning at a hair shoppe and had clients. She testified that she tried to call the subject-child's father to take him that day to no avail, so she arranged for L., the child's godmother, who resides in the same building, to care for the subject-child on Saturday while she worked.

She testified that when she got home after her errands, she checked on the subject child, and he was nowhere to be found. She testified that she looked for him around the building, went to L.'s apartment, the cellar, and family friends on the first floor. She testified a neighbor also helped her search. She testified that she woke up the super of the building and he came and was in the process of showing them the cameras so they could determine if the subject-child was in the building or had left. She testified that during this time the NYPD arrived, and she bumped into them in the lobby.

She testified that she looked for the subject-child for 15 minutes in the building and was looking at the camera footage for 10-12 minutes. She testified that she saw on the camera footage the subject-child get on the elevator, push the button and go out of the building. She testified that she thought about calling 911 but once she leaves her apartment her phone does not work as it only works when she is on Wi-Fi. She testified that the child had never left the building before by himself.

She testified that she was terrified and scared that the subject-child left the building. She testified that the building super was with her when NYPD came into the building. She testified that they NYPD first went up to the apartment and then went back downstairs and looked at the camera with the super, Robert. She testified that after the NYPD looked at the cameras "once he saw the part when he saw me with McDonald's they arrested me." She testified that she saw a judge that night. She testified that she did not leave the subject-child alone ever before this and that she felt terrible and admitted she made a mistake. She testified that she did not recall the circumstances of a 2021 ACS investigation.

She testified she got home from jail on either Saturday night or Sunday morning, and on Monday morning spoke to a BDS paralegal. She testified after she was arrested, she called her mother and was notified by her mother that the subject child was with the non-respondent Father. She testified she was at ease that the subject child was safe with the non-respondent Father and that the subject child was going to take some time with the non-respondent Father while she "gathered herself." She testified she has not spoken to the non-respondent Father since "this happened" but has attempted to. She testified she told CPS L. the plan to leave the subject child with the non-respondent Father during the holidays, and that the subject child will return back to her for school.

She testified on December 23, 2025, she spoke to the non-respondent Father, and he stated he was not releasing the subject child back to her until "the people" tell him to. She testified that she replied "ok, fine, no problem." She testified she told CPS L. about this conversation. She testified she told CPS L. what she was going to do on December 20, 2025. She testified CPS L. agreed to the plan and CPS L. stated she "could use this time for yourself and be at peace." She testified CPS L. never told her she could not see or speak to the subject child or that she should not go to pick the subject child before school starts.

She testified on December 24, 2025, the non-respondent Father showed up to her home unannounced with police. She testified when she was the police she closed her door. She testified she did not understand why the non-respondent Father was at her door with police after they had just spoken. She testified the non-respondent Father did not ask me to pick up the subject child's belongings. She testified no one from ACS reached out to her about this. She testified a BDS paralegal, Ms. Lillian, sent her a packet. She testified she told CPS L. she wanted to be represented by counsel. She testified CPS L. did not give me any contact information for anyone from BDS. She testified CPS L. provided me the information for the CSC the day of the [*8]meeting when she had Wi-Fi, but the CSC went on without her.

She testified she was not sure what her service plan was, and she did not receive a copy of it. She testified CPS L. gave her a paper under her door in early December 2025, but this was 60 days into when the original case was called in.^[FN4] She testified the document included three (3) different locations for services. She testified she chose location #2 as it was closer to her home. She testified she called the provider but was told there was a 3-month waiting period. She testified she started services with a referral that BDS had made, and intake had just occurred. She testified she was not sure what the service was, did not know the name of the program, but spoke to "Hillary" (phonetic). She testified on Friday, January 9, 2026, she saw another person at that place and then meets with "Hillary" on Mondays. She testified she signed HIPPA releases for ACS. She testified she would do mental health services if the subject child was in her care. She testified during the weekend of December 20, 2025, she was not following any order at that time. She testified she has a couple concerns about the non-respondent Father being a primary parent. She testified one concern is financial, in that the non-respondent Father states he is working but she never "gets any extra" outside of the child support she gets through welfare once a month.

She testified she has not been able to speak to the subject child except once when the subject child called her. She testified she calls the iPad because every other number is disconnected. She testified the non-respondent Father says "sarcastic stuff" to her then pretends he does not know what he said. She testified the non-respondent Father talks about her dead dad and where she came from being a foster kid herself.

She testified that on December 30, 2025, she and the subject child embraced for 2 minutes. She testified that the subject child stated, "daddy said we are only here to see you for 2 minutes." She testified she told the subject child it was for 2 hours not 2 minutes. She testified she wants to co-parent, cooperate, and communicate with the non-respondent Father. She testified during the first visit she brought the subject child brand new boots because it was snowing. She testified the subject child kicked off his shoes that were dirty and put the boots on. She testified she brought an iPad during the second visit with the subject child. She testified she would follow the visitation order and would comply with ACS supervision.

On cross-examination by the attorney for the child, the Respondent Mother testified that she had left the home around 3:40AM on December 20, 2025. She testified she was gone for 45 minutes and then was in the building for 15 minutes looking for the subject child. She testified she went to a neighbor, realized the subject child was not there, and went to the neighbor on the first floor as she did not have her phone. She testified she did this relatively immediately. She testified she searched with the neighbor for 15 minutes before they called the superintendent. She testified the subject child had never left the building before. She testified after that the neighbor called the superintendent who lives outside the building. She testified that once she left her apartment, she got neighbors help, but she was not sure of the time frame. She testified the superintendent came in 2 minutes after they called. She testified she reviewed surveillance footage in the building with the superintendent for 15-20 minutes because the superintendent did not know how to work the system. She testified when she left the room after reviewing the footage, a minute later she ran into NYPD. She testified she was aware that the subject child was [*9]found by someone at 4:20AM. She testified the NYPD officer told her the subject child was at the hospital and was "being checked out." She testified she asked the officer about the subject child's well-being.

She testified she did not call the police because the neighbor said to go search the building and did not believe the subject child left the building. She testified when she left the subject child, he was in bed sleeping. She testified she has never left the subject child alone without an adult before. She testified she never discussed a plan with the subject child in case she was not in the home. She testified the subject child usually sleeps through the night and does not give issues.

She testified she had to do laundry as she had work the next day and was starting a new job, and she and the subject child needed clothing. She testified the subject child had clothes, but it was "piled up laundry." She testified she dropped off the clothes to be laundered. She testified she usually does laundry on the weekend. She testified that when she spoke with the NYPD, she told them that she went to do laundry and get food. She testified that she did not tell the NYPD that she never left the building, and they reviewed the camera footage. She denied returning home at 5:30am despite that being the indicated time in the police report

She testified that the laundromat is 6 blocks away and she did not know the name only that it was 24-hours and run by "Asians." She testified that thereafter she went to the McDonald's on Atlantic Avenue, and she believed she arrived there at "4 something" and paid approximately $27.00 for her meal.

She testified that she did not know why on December 24, 2025, the non-respondent Father was at her home with the police, and no one ever said why. She then testified that she did yell that he should buy the subject child clothes because he is his father and should buy things on a regular basis. She further testified that the day before she spoke to the non-respondent Father who never said he needed anything for the subject-child. She testified that when the non-respondent Father got off the elevator, she closed her apartment door and only spoke through the door. She testified that she permitted the police to come into her home. She testified why the non-respondent Father called the cops "why are you here on Christmas Eve and the subject-child doesn't have what he needs under the tree." She further testified that the non-respondent Father told her "this is the same thing you did with your first baby father" to which she replied, "go get a coat, I do everything by myself." She testified that at the end of this encounter he made it seem he was there for the coat "after he made the scene."

She testified that she did tell CPS that she was leaving the visit to go get food because the child asked for food. She testified that she told CPS where she was going, and CPS held her up and that the Respondent Mother did not feel like she was doing anything wrong and that she "doesn't say no to [my] son."

She testified that on December 31, 2025, New Year's Eve, she had three party "poppers" at the visit for the child and his two cousins. She testified that the agency let her in with them and later CPS saw them playing with it and inquired what they were, and she told them and then the child pulled the strong and it popped. She testified once popped they did not make a mess, but it did smell a bit like smoke and that is when CPS called the officers.

She testified that she spent the January 2, 2026, visit doing the child's hair as the non-respondent Father had taken out his hair and "had him looking a mess."

Regarding the 2021 allegations, Ms. G. testified that she was in Atlantic City, New Jersey with the children and the children were in a hotel room. When asked did she leave the children [*10]alone she responded by stating "the hotel room had a double suite...I had an adjoining room." She testified that after that ACS opened a case and she spoke to someone and "after that that was it." She testified that she didn't remember what her and the police talked about during this incident and that she had to wait for her mother to come pick them up. She testified that she did not recall telling the police she left to get food, nor does she recall saying she had been gone for hours.

She testified that in 2016 she spoke with case planner Douglas but did not remember what they spoke about as it was a while ago. She testified that the allegations were that she left the non-subject-child alone to get food, but she stated that she did not leave her alone as she told her friend "Crissy" who lived in the same shelter complex to keep an eye on her.

On cross examination by the attorney for the Agency Ms. G. testified that she was providing a hair service in her home on December 19, 2025, and the client arrived sometime in the afternoon. She testified that before that appointment she had another client for a manicure service around 10:00 or10:30AM. She reiterated that after her second client left, she fell asleep for a few hours and then woke up to do laundry at around 3:40AM. She testified that when she arrived home, she realized that the subject child was not in the apartment anymore and she began looking for him and then knocked on neighbor door to look for him with her neighbor who is like an "older grandma" to them. She testified that she knocked on her door because her phone does not work. She testified that the subject child knows about the cellar and that L. is on the 6th floor as he has gone to these places with Marcus, who is L.'s son, before. She testified that he's never by himself in the cellar and he has never gone to those places in the middle of the night before. She testified that when she went to neighbor the neighbor said to keep looking in the building and, in the staircase, and then after that they would call the cops. She testified that during that time the neighbor was calling Robert the super. She testified that neither the neighbor nor herself called the police.

She testified that on December 19, 2025, she called the father to come and take the child as she knew she had clients and would not be done in "no time soon." She testified that the job she was scheduled to do was at Burlington and that she had started the week before and was told on December 10, 2025, during her orientation that she needed to come in on December 20, 2025, for training. She testified that she had not yet received her schedule but that it was an on the books retail job because she needed an "on the books" job for welfare purposes.

She testified that ultimately it was arranged for L. to care for the subject-child on the 20th and she stated that on the 10th The non-respondent Father agreed to care for The subject-child and he did not show up and it would have been his weekend with the subject child.

She testified that her and the non-respondent Father generally follow the order of visits but that if he wants additional access, she arranges it. She testified that in the summer the subject child has stayed a week or two with his father but does not spend extended time with him during the school year.

She testified that sometimes she does not allow the non-respondent Father to see the child when he comes to her household and "wants to be a narcissist towards [me]." She testified that she did not know if the non-respondent Father ever filed violation petitions against her for violating the order of visits and did not know about one filed in February of 2025.

She testified that on Christmas Eve when the non-respondent Father arrived with police, she yelled at him through door that he should buy a coat for the subject child because he should have the funds for the child and the day before he never said he needed anything

She testified that the child never returned home the morning of December 20, 2025, and only had with him what he was wearing that night, which was pajamas. She testified that despite knowing this she did not ask if the non-respondent Father needed anything for the child because The non-respondent Father pretends, he "has it" and says, "oh I got it." She testified that she was very concerned that the child only had the clothes he was wearing but did not ask further because he was with his father "who doesn't provide for him on a daily basis."

She testified that CPS L. left a paper under her apartment door with locations for services and she received it before December 20, 2025, which she says is sixty (60) days from when CPS L. originally contacted her. She denied telling CPS L. that she never left the children home alone and clarified that she never left the subject child home alone.

She testified that in 2021 in Atlantic City the children were not left alone because they were in an adjoining room and the non-subject-child, who was 12 at the time, was aware that she was in the adjoining room. She testified that she admitted to ACS that she left the children in the room to get food because the non-subject-child was hungry. She testified that she could not recall the details of this event because she put it behind her and tried to forget it but confirmed that she did go to get food and was inside the hotel doing so. She testified that the non-subject-child stepped out of the room to go get ice and locked herself out. She testified that the subject-child was one (1) year old at the time, The non-subject-child was twelve, and there was another child who was fifteen. She denied telling the worker at the time that she left the hotel to get McDonald's because the food in the hotel was too expensive. She testified that the non-subject-child did not call her, and a housekeeper let her back into the room. She testified that the police were called because Ms. G. was having an argument with someone on the phone. She testified that her mother was called to pick them up as they were not able to stay on the premises any longer. When asked if it was because she was staying in a room under someone else's name Respondent became very agitated and had to be asked to step out of the court room to calm down.

She testified that she did not recall leaving the non-subject-child alone in 2016 but states that the child was removed from her and placed with the maternal grandmother. She then testified that she went out to the store which was across the street from her home and that was the only incident where the non-subject-child was left alone. She testified that she did not know if she had a finding of neglect against her for that incident.

On redirect she testified that all the times she gave are estimates based on her memory. She testified that she did not leave the hotel in 2021 but did leave the room and her testimony had changed because she has had time to think about it. She testified that in 2016 she was living in a family shelter and was trying to get her life together. She testified that the night The non-subject-child was left alone she went out across the street and left the non-subject-child with her friend and the police happened to show up with a warrant of arrest for someone who lived in the apartment prior to her. She testified that after that incident The non-subject-child went to live with the maternal grandmother and that she asked her mom to help her, and she was glad to. She testified that she did not want her daughter to "be in the system." She testified that she went to family court due to this incident and was given mental health services and a drug program at Samaritan Village. She testified that she was given a drug program because at that time she was in her 20s and marijuana was found to be all around her kitchen. She testified that she did the programs and shortly thereafter her child was returned. She testified that the programs helped her with communicating, expressing feelings, asking for help, and her mental wellbeing.

She testified that between 2016 and now everything has changed about her life. She testified that she has her own apartment for the past nine (9) years, graduated beauty school, started her own business, works with celebrities, helps her community, and is involved in the school and PTA.

The Respondent rested.

The Attorney for the Child did not present a direct case.

All counsel gave oral summations and the Court reserved decision.

The Court had the unique opportunity to observe the demeanor and assess the credibility of each witness during their testimony and the Family Court's assessment of the credibility of witnesses is entitled to considerable deference (see Matter of Irene O., 38 NY2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337; Matter of Justice L. [Jessica L.], 168 AD3d 1057, 1057, 90 N.Y.S.3d 903. The Court found Ms. G. credible at times and not others. Her timeline of events continued to change throughout her testimony. While this could be a result of the frantic nature of the event it was noteworthy to the Court. Also noteworthy to the Court is her inability to recall the events of 2021 and 2016 and then being able to recall the details after a break or a recessed date. Other inconsistencies were also noted in her testimony such as initially stating she was going to work at a new hair shoppe on December 20, 2025, and then later saying she was doing training at Burlington. While these are apparent inconsistencies, they are benign as what benefit would she achieve in telling the court a different employer. The court found the case planner to be overall credible but lacking in detail and understanding of ACS policies.

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party's original case (see CPL 260.30[7]; People v. Harris, 98 NY2d 452, 489, 749 N.Y.S.2d 766, 779 N.E.2d 705; People v. Whipple, 97 NY2d 1, 6, 734 N.Y.S.2d 549, 760 N.E.2d 337; People v. Harris, 57 NY2d 335, 345, 456 N.Y.S.2d 694, 442 N.E.2d 1205; People v. Boyce, 54 AD3d 1052, 1053, 866 N.Y.S.2d 203). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is "simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense" (People v. Whipple, 97 NY2d at 3, 734 N.Y.S.2d 549, 760 N.E.2d 337; see People v. Kinney, 66 AD3d 1238, 1240, 888 N.Y.S.2d 260).

The rules concerning the proper scope of rebuttal evidence are clear. The party holding the affirmative of an issue must present all evidence concerning it before he closes his case. Thereafter, that party may introduce evidence in rebuttal only. "Rebutting evidence in such cases means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove" (Marshall v. Davies, 78 NY 414, 420; see People v. Bonier, 189 NY 108, 121, 81 N.E. 949).

Petitioner submitted rebuttal evidence in the form of marked portions ACS investigative progress notes (Marked by the Court as Petitioner's Rebuttal Evidence 9 and 10, respectively). The notes pertain to investigations by ACS against the Respondent Mother for allegations of inadequate guardianship in leaving children alone and unsupervised in 2016 and 2021. Further, it [*11]includes statements made by police officers, the Respondent Mother, children, and other sources. Petitioner submits that the notes itself serve as a rebuttal to the Respondent Mother's testimony on the instant case. Counsel for the Respondent Mother opposed such documents being considered by this Court in that the sources' reliability cannot be tested and did not have an opportunity to review the records with the Respondent Mother although admittedly having them in their possession since the week prior. The court in its discretion has admitted the rebuttal evidence in its entirety.

A parent's application pursuant to Family Court Act section 1028(a) for the return of a child who has been temporarily removed "shall" be granted unless the Family Court finds that "the return presents an imminent risk to the child's life or health (Matter of Nyomi P., 224 AD3d 906, 906; Matter of Mikayla T., 199 AD3d 1009, 1010). The court's determination will not be disturbed if it is supported by a sound and substantial basis in the record) see Matter of Junny B., 200 AD3d 687, 688; Matter of Zaniyah R-T., 196 AD3d 584, 585. In making 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 and "must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interest" (Nicholson v. Scoppetta, 3 NY3d 357, 378; see Matter of Nyomi P. supra. The child protective services agency bears the burden of establishing that the child would be at imminent risk and therefore should remain in its custody.) See Matter of Skkyy M.R. 206, AD3d 660 661; Matter of Chase P. 199 AD3d 807, 809.

There is no dispute as to Ms. G. having left the subject-child home during the early morning hours of December 20, 2025. She has admitted same. Nonetheless the Court must assess whether court orders can be put in place that would eliminate or mitigate any imminent risk which would exist if the subject child were to be returned to Ms. G..

In terms of imminent risk, the Court is troubled as to why the Agency chose to file nine (9) days after the incident occurred and it undermines the Agency's position of risk. During these nine days the child was with his father solely by arrangement between the parents. There was no legal barrier at any point to Ms. G., who is the custodial parent of the subject-child, to retrieve him at any point. What appears to have been the deciding factor in the filing of this petition was Ms. G.'s lack of attendance at the child safety conference.

However, the scheduling of the child safety conference is tainted by the way it was handled. Primarily, knowing that Ms. G. did not have access to a working phone unless she had access to Wi-Fi, the conference was still scheduled virtually. Secondly, Ms. G. was told she could not have a lawyer present which is simply untrue. CPS stated that she did not reach out to Ms. G.^[FN5] to inform her the CSC was being held. She testified she was aware of the flyer protocol with counsel's information but did not provide it to the Respondent Mother. This is simply unacceptable and a violation of ACS' own policy and directives. There seems to have been a lack of CPS making actual reasonable efforts to prevent removal of this child in the days leading up to the filing. Further, CPS was already in the family's life before that and the overall [*12]impression the Court has formulated is that the contact appeared lax, unstructured, and lacked transparency.

In weighing harm of removal, the agency argues that the harm is mitigated by the fact that the child is in the care of his father. While this is true to a degree, it undermines the reality of this family's life in that Ms. G. is the primary caretaker of the subject-child and has been his entire life. To that end the father is unable to even pick up the child from school due to his schedule not permitting same and to accommodate the situation an immediate application for resource supervised visits were made to this Court so that Ms. G. could once again assume these responsibilities. The visitations that have been observed by the agency are positive and show a loving mother and child relationship. Disrupting that relationship, even for a brief time, is confusing to a child and could cause long lasting impact and trauma.

The Court does not condone in any way what Ms. G. has done. This was an extreme lapse in parental judgement and is neglect as defined by section 1012 of the Family Court Act. The Court also notes that there was a finding of neglect when Ms. G. was 22 years old which was later suspended. The Court further notes that in 2021 there was an indicated case. Each of Ms. G.'s cases involved leaving a child alone. However, in having the opportunity to hear Ms. G. she appeared to the Court to be a young woman who is dealing with immense struggle, some of which is compounded by her past very traumatic experiences when she was a child in care who suffered heinous crimes against her such as rape. Ms. G. spoke about "getting her life together" and showed pride that she was able to move out of the shelter system, acquire her own apartment for herself and the subject-child, has maintained it for nine years, graduated beauty school and runs what seems to be a busy cosmetology business from her home. It was very clear she is overwhelmed. Many times, she spoke of the financial struggle from what she perceives as lack of financial support from the subject-child's father. She also expressed lack of ability to count on him to help with the subject-child. For example, she testified he did not show up to care for the subject-child on December 10, 2025, when she was scheduled for her orientation at Burlington. He was unavailable for her on the weekend in question, which was his court ordered weekend with the subject-child, and she had to ask L. to step in for childcare coverage. There are 24-hours in a day and Ms. G. seems to have to fit in more than can be accommodated to keep her life and child's life running. She expressed feeling stressed, a fact which was corroborated by CPS who indicated that Ms. G. was stressed. This Court does not believe that cookie cutter solutions should be imposed based simply on facts presented but look to the actual humans before it and takes note of their specific situations and considers what can be done to help move a family forward. Ms. G. requires help not punishment and there are numerous mitigating orders that can be put in place to not only ensure the safety of the subject-child but to support a young woman who has needed this support for quite some time. The Court would order that Ms. G. not leave the child the subject-child unattended and/or without adult supervision, comply with ACS supervision including announced and unannounced visits by ACS or ECS, comply with intensive preventive services, engage and complete a comprehensive parenting skills class, engage in individual therapy, that childcare vouchers be provided, comply with homemaking services. With these orders in place any risk to the subject-child is mitigated.

The court also weighs in its determination Ms. G.'s remorse and ability to accept accountability. CPS herself testified that Ms. G. was very remorseful. Willingness to accept fault for what one has done is the first step to a path of growth and betterment. Ms. G. expressed thanks to the NYPD for finding the subject-child and for bringing him to safety.

Based upon the totality of the facts, evidence and testimony before this Court Ms. G.'s FCA 1028 application is GRANTED subject to the compliance with the orders below. The Respondent is warned that should she not comply with his Court's directives in their entirety this Court will entertain a FCA 1027 application for the removal of the child.

All parties are to appear in Part 16 on JANUARY 27, 2026 at 11:00 AM virtually or in person, for allocution as to the conditions.

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

The below Orders are not in effect until the Respondent Mother is allocuted on such on January 27, 2026, at 11:00AM.

The Respondent Mother's request for a return of the subject child is GRANTED.

The subject child is released to the Respondent Mother and the non-respondent father under Court ordered supervision;

The Respondent Mother is to comply with ACS supervision, including announced and unannounced visits by both ACS and ECS;

The Respondent Mother is not the leave the subject child alone or without adult supervision;

The Respondent Mother is to comply with intensive PPRS/FPP and any recommended services;

The Respondent Mother is to engage and complete a comprehensive parenting skills course;

The Respondent Mother is to comply with a referral or homemaking services and engage in such services if qualified;

The Respondent Mother is to engage in individual therapy until no longer clinically recommended;

The Respondent Mother is to sign HIPPAs for herself and the child;

The Respondent Mother is to keep ACS apprised of any changes in her address and contact information; and

The agency is to provide copies of the petition, orders, and previous case history to the Respondent Mother's providers; and

The agency is to provide the Respondent Mother with a daycare voucher within 1 week.

This Constitutes the Decision and Order of the Court.

Notify all Counsel and parties.