In a rare post-dispositional decision made after a father had already gained custody of his children, a state appeals court has ruled that the father's 2018 motion in Family Court for an expedited hearing should have been granted.

And the Appellate Division, First Department, in a lengthy, signed opinion written by Justice Anil Singh, made clear that the 2018 hearing on whether the children should be returned to the father should not have spooled out over six months because of attorney and court scheduling conflicts.

"We find that Family Court should have granted the motion and held a prompt hearing in accordance with the parent's and the children's right to due process," wrote Singh on behalf of a unanimous panel that reversed the September 2018 motion decision of Bronx Family Court Judge Elenor Reid.

Later in the opinion, Singh wrote that the New York City Administration for Children's Services, or ACS, which argued against the need for an expedited hearing in the matter, "fails to establish that the lengthy delay [of six months] was related to its interest in protecting the children."

"There is no indication that the completion of the hearing was caused by difficult legal issues, or by the need to obtain elusive evidence, or by some other factor related to an accurate assessment of the best interest of the children," wrote Singh.

Rather, he wrote, "the hearing was prolonged over six months because of the court's and attorneys' scheduling conflicts."

Midway through the opinion, as Singh launched into a legal analysis of the family law issue before him, he explained why the panel was rendering an opinion in a post-dispositional case that, for the parties involved, was no longer of consequence.

He first noted that the parties—the father, named only as Monroe W.; the two children, who were unnamed; and ACS—were in agreement that the issues raised were an "exception to the mootness doctrine." Then Singh wrote that—as the parties had apparently said themselves—the expedited-hearing issues on appeal "fell into that exception in that they (1) are likely to reoccur; (2) typically evade review; and (3) involve 'significant or important questions not previously passed on,'" quoting Matter of Hearst v. Clyne.

The underlying custody disputes over where the two children should reside lasted for some five years, according to the panel's opinion, running from April 2014, when ACS filed a neglect petition against Monroe W. on behalf of his two then-young children, to March 2019, when the children "now ages five and seven, were finally discharged to the father."

During those years, Monroe W. lost custody of his children three times, according to the opinion, and twice he filed orders to show cause asking for a quick ruling that would return them to him via "a trial discharge," meaning a trial period in which he would take custody.

Variously, ACS had alleged during those years that Monroe W. had "perpetrated acts of violence against the mother in the children's presence," and had committed "excessive corporal punishment" and "corporate punishment" against his children. But, ultimately, certain allegations against him were determined to be "unfounded" or "not credible" by the Bronx Family Court, according to Singh's decision.

It was the last of the custody disputes, beginning in January 2018, that led to the partial-motion issue of whether an expedited hearing on a Monroe W.-filed order to show cause should be granted.

Singh wrote that on Jan. 26, as the parties appeared in court, the "issue of whether the father was entitled to an expedited hearing arose."

A lawyer for the children—who was not named in the opinion—"stated that she was not ready to participate in a hearing, as she had not yet spoken to the children and was 'double booked,' but she also did not believe that the father was entitled to an expedited hearing."

The Family Court judge asked for a briefing on the issue, wrote Singh.

Later, at an April 2018 court appearance, "the father's counsel requested a decision on the motion seeking an expedited hearing," Singh wrote, but the judge responded by saying that the issue was moot since the court had "granted an expedited hearing" and they were "just in the midst of it" then. During the ensuing months, Monroe W,'s counsel asked repeatedly for earlier dates for the continued hearing, said Singh.

A month and a half after Reid, the Family Court judge, found that allegations against Monroe W. were not credible, and ruled that the children should be placed with him, she issued a September 2018 memorandum decision denying Monroe W.'s application for an expedited hearing.

Singh wrote that "we reject ACS's assertion that, in light of the prior finding of neglect against the father, the government has a greater interest in ensuring a correct adjudication, even if that may lengthen the proceeding."

However, he wrote, "we agree that ACS has an interest in correct adjudication because 'an erroneous failure to place the child [in foster care] may have disastrous consequences,'" quoting Matter of Tammie Z.

He then wrote that "we find that a parent's private interest in having custody of his or her children, the children's private interest in residing with their parent, and the undisputed harm to these interests are factors that merit equal consideration" with the factor involving an erroneous failure to put a child in foster care. He also cited the "significant emotional harm" that can result to children when they are separated from parents, a finding that was made, in part, on the Family Court level in the Monroe W. matter.

Near the April 23 opinion's end, Singh wrote that while the state's Family Court Act "is silent as to the specific procedural time frames that apply when a child has already been removed from a parent's physical custody after a fact-finding determination … we decline to impose a specific time frame as to what constitutes a prompt or expedited judicial review."

"Instead, we rely on the general precept that a post-deprivation hearing 'should be measured in hours and days, not weeks and months,' based on the facts and circumstances of the matter," the appeals court said, quoting Egervary v. Rooney.

New York City's Law Department, which represented ACS in the appeal, said in an email from spokesman Nicolas Paolucci on Wednesday that "throughout the appeal, ACS was in complete agreement that a hearing should be held promptly when sought by a parent after the termination of a trial discharge" of custody to a parent.

Paolucci added that "while we may disagree as to the particulars here, the [First Department] court was right to recognize that the Family Court Act imposes no specific timeframes, and that the timing turns on the circumstances of each case."

David Shalleck-Klein, a staff attorney at the Bronx Defenders who represented Monroe W. in Family Court and who orally argued the appeal, said Wednesday in an email, "The Appellate Division appreciated that prompt judicial review is necessary to prevent harm to families when the government unjustifiably removes children from their parents' care."

Christine Gottlieb, co-director of the New York University School of Law Family Defense Clinic, which was co-counsel with the Bronx Defenders on the appeal, added in an email that "judicial review of ACS decisions to remove children from their homes is one of the courts' most critical functions."

The First Department's decision, she said, "sent an important message that review of family separations must be prompt in every case."

The Legal Aid Society of New York was counsel to the children, and could not be reached for comment.