The appellant (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the New York City Administration for Children’s Services (hereinafter ACS) filed petitions in the Family Court, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their non-respondent father and his mother (the children’s paternal grandmother), with whom the father lived.
On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. Ultimately, the Family Court denied the mother’s request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father’s care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection. While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1½ years, during which time the children remained in their father’s care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.
The question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, we find that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother’s application for a Family Court Act § 1028 hearing.