N.Y. Family Court Act § 1028: Application to return child temporarily removed

§ 1028. Application to return child temporarily removed. (a) Upon the

application of the parent or other person legally responsible for the

care of a child temporarily removed under this part or upon the

application of the child's attorney for an order returning the child,

the court shall hold a hearing to determine whether the child should be

returned (i) unless there has been a hearing pursuant to section one

thousand twenty-seven of this article on the removal of the child at

which the parent or other person legally responsible for the child's

care was present and had the opportunity to be represented by counsel,

or (ii) upon good cause shown. Except for good cause shown, such hearing

shall be held within three court days of the application and shall not

be adjourned. Upon such hearing, the court shall grant the application,

unless it finds that the return presents an imminent risk to the child's

life or health. If a parent or other person legally responsible for the

care of a child waives his or her right to a hearing under this section,

the court shall advise such person at that time that, notwithstanding

such waiver, an application under this section may be made at any time

during the pendency of the proceedings.

(b) In determining whether temporary removal of the child is necessary

to avoid imminent risk to the child's life or health, the court shall

consider and determine in its order whether continuation in the child's

home would be contrary to the best interests of the child and where

appropriate, whether reasonable efforts were made prior to the date of

the hearing to prevent or eliminate the need for removal of the child

from the home and where appropriate, whether reasonable efforts were

made after removal of the child to make it possible for the child to

safely return home.

(c) If the court determines that reasonable efforts to prevent or

eliminate the need for removal of the child from the home were not made

but that the lack of such efforts was appropriate under the

circumstances, the court order shall include such a finding.

(d) If the court determines that reasonable efforts to prevent or

eliminate the need for removal of the child from the home were not made

but that such efforts were appropriate under the circumstances, the

court shall order the child protective agency to provide or arrange for

the provision of appropriate services or assistance to the child and the

child's family pursuant to section one thousand fifteen-a or as

enumerated in subdivision (c) of section one thousand twenty-two of this

article, notwithstanding the fact that a petition has been filed.

(e) The court may issue a temporary order of protection pursuant to

section ten hundred twenty-nine of this article as an alternative to or

in conjunction with any other order or disposition authorized under this

section.

(f) The court shall also consider and determine whether imminent risk

to the child would be eliminated by the issuance of a temporary order of

protection, pursuant to section ten hundred twenty-nine of this article,

directing the removal of a person or persons from the child's residence.