Lawyers Manual - Unified Court System

88 Jill M. Zuccardy
removal or issue a “remand” order, i.e., an order placing or continuing the child
in CPS custody for a period of a few days until the neglect petition is served.
Children must be placed with relatives if possible. 24
A mother may challenge a removal through what is commonly known as a
“1028 hearing,” named after the section of the Family Court Act which provides
for it. 25 She may file a Demand for Return of Child (which causes the scheduling
of a hearing) even before CPS commences a proceeding. If the attorney has
been retained after the removal but before the next court date, the attorney may
file for a hearing and the court date will be advanced. The hearing takes priority
over all other matters in the Family Court, must occur within three days, and
cannot be adjourned without consent. Because the standard for continued
placement in foster care is “imminent danger,” a mother has a right to seek a
1028 hearing at any point prior to disposition, even during fact-finding, if
imminent danger no longer exists. A parent does not waive the right to a hearing
merely by declining to exercise that right at the commencement of the case.
The FCA § 1028 Hearing
The attorney must weigh whether and when to request to a 1028 hearing.
Although those decisions will depend on the facts of the case, requesting a 1028
hearing while a case is newly before the court is often best. The request emphasizes
the serious nature of removal of a child and causes an immediate conference
about the case. The request itself may result in the return of the child. Further,
even if the child is not returned as a result of a 1028 hearing, the hearing focuses
the parties and the court on what steps CPS and the mother must take so the
child can be returned as soon as possible. Reasonable efforts by CPS virtually
always can eliminate danger, but such efforts can only be ordered by the Family
Court when the case is before it. In challenging removal the attorney must focus
not only on the issues of “imminent danger” but also on “best interests of the
child.” The court is required to weigh any risk to the child against any trauma or
damage to the child from being removed from his/her home. 26
The battered mother’s attorney must assure that this balancing of harms is
explicitly considered. The Court of Appeals has recognized that “the psychological
trauma of removal” is so great that sometimes it may “threaten destruction of
the child” 27 and that “[i]f removed from the home of her primary care giver, a
young child would be expected to have a ‘normal grief reaction,’ including
crying, aggressiveness, eating or sleep disturbances, nightmares or night terrors,
as well as temporary regression in developmental skills.” 28 The attorney also