In re Tymell

275 A.D.2d 327, 712 N.Y.S.2d 411, 2000 N.Y. App. Div. LEXIS 8575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 2000
• Status: Published

Opinion

—In an adoption proceeding, the petitioner appeals from an order of the Family Court, Kings County (Pearce, J.), dated April 16, 1999, which denied her petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for a hearing on the petition; and it is further,

Ordered that prior to the hearing, the Family Court, Kings County, shall give notice of the hearing to the subject child’s Law Guardian and shall direct a forensic evaluation of the petitioner and the subject child.

Under the circumstances of this case, the Family Court erred in denying the instant petition and dismissing the proceeding without first conducting a fact-finding hearing on the merits of the petition (see, Matter of Crystal Marie, 263 AD2d 482; Matter of Jamel B., 261 AD2d 542; Matter of Joseph A., 260 AD2d 475). Therefore, we remit the matter to the Family Court for that purpose. In connection therewith, we direct the Family Court to give notice of such hearing to the subject child’s Law Guardian and to direct a forensic evaluation of the petitioner and the subject child (see, Matter of Joseph A., supra).

Additionally, we note that the Family Court exceeded its authority when it directed the Administration for Children’s Services to amend the petitioner’s foster home certification to reflect that it can accommodate only one child and that the home be closed to further foster care placements (see, Matter of Hasani B., 195 AD2d 404, 407; cf., Matter of Adrienne M., 201 AD2d 938).

The petitioner’s remaining contentions are without merit. S. Miller, J. P., Friedmann, Luciano and Schmidt, Jj., concur.