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In re James M.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


February 3, 2009

IN THE MATTER OF GABRIEL JAMES M. (ANONYMOUS).
ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT,
v.
ANNE MARIE M. (ANONYMOUS), APPELLANT, ET AL., RESPONDENT.

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Kings County (Danoff, J.), dated July 27, 2007, as directed the petitioner to conduct a priority investigation of the subject child's grandparents residing in Georgia, pursuant to the Interstate Compact for the Placement of Children, and (2) from an order of the same court dated August 31, 2007, which, after a hearing, denied her application pursuant to Family Court Act § 1028 to return the subject child to her during the pendency of this proceeding.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ANITA R. FLORIO, J.P., JOSEPH COVELLO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Docket No. N-17795-07)

DECISION & ORDER

ORDERED that the order dated July 27, 2007, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated August 31, 2007, is affirmed, without costs or disbursements.

Contrary to the mother's contention, the Family Court providently exercised its discretion in denying her application pursuant to Family Court Act § 1028 to return the subject child to her custody during the pendency of this proceeding. There was sufficient evidence presented at the hearing held pursuant to Family Court Act § 1028, that the child's emotional, mental, and physical health would be at imminent risk if he were returned to live with her (see Family Ct Act § 1028). We note that the imminent risk of harm to the child's emotional, mental, and physical health would not be mitigated by the issuance of a protective order against the mother's domestic partner to stay away from the child (see Matter of Selena J., 35 AD3d 610; Matter of William C., 209 AD2d 408; Matter of Bobby M., 103 AD2d 777, 778; Matter of Jasmine H., 88 AD2d 996, 997).

The mother's remaining contention is without merit.

FLORIO, J.P., COVELLO, BALKIN and LEVENTHAL, JJ., concur.

DECISION & ORDER ON MOTION

Motion by the attorney for the child, on appeals from two orders of the Family Court, Kings County, dated July 27, 2007, and August 31, 2007, respectively, to dismiss the appeal from the order dated August 31, 2007, on the ground that it has been rendered academic. By decision and order of this Court dated August 22, 2008, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeals, it is

ORDERED that the motion is denied.

FLORIO, J.P., COVELLO, BALKIN and LEVENTHAL, JJ., concur.

20090203

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