Linda S. v. Buscaglia

Appellate Division of the Supreme Court of New York

Linda S. v. Buscaglia

134 A.D.2d 879, 521 N.Y.S.2d 922, 1987 N.Y. App. Div. LEXIS 51069

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 1987

StatusPublished

Cited by1 cases

This text of 134 A.D.2d 879 (Linda S. v. Buscaglia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Linda S. v. Buscaglia, 134 A.D.2d 879, 521 N.Y.S.2d 922, 1987 N.Y. App. Div. LEXIS 51069 (N.Y. Ct. App. 1987).

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Opinion

— Order unanimously affirmed without costs. Memorandum: Family Court correctly determined that the best interests of the children of petitioner required that the petition for a change of custody be denied and that placement of Jason be extended for a period of 12 months. Petitioner commenced this proceeding seeking the return of her children Jason and Jennifer, whom she had surrendered to the Erie County Department of Social Services after executing a surrender for adoption pursuant to Social Services Law § 384. An evidentiary hearing was conducted following which Family Court determined that on the basis of the best interests test the present placement of Jason and Jennifer should remain undisturbed and Jason’s placement in foster care should be extended for 12 months. The evidence adduced at the hearing, including a psychological evaluation, provided full information upon which to predicate an informed determination.

We note, however, that on the facts of this case and responsive to respondent’s request, Family Court should have conducted an evidentiary hearing pursuant to section 384 (5) to determine whether fraud, duress or coercion had induced the surrender. This threshold inquiry should have preceded a "best interest” hearing. A determination made in such hearing may have been dispositive of the issues raised in the petition. The petitioner, however, was not prejudiced by the court’s failure to hold a section 384 (5) hearing inasmuch as petitioner would only have been entitled to a "best interest” hearing had the fraud and duress issues been resolved in her favor. Such a hearing was in fact conducted.

On the basis of this record the determination dismissing the petition should be sustained. (Appeal from order of Erie County Family Court, Notaro, J. — custody.) Present — Denman, J. P., Green, Balio, Lawton and Davis, JJ.

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— Order unanimously affirmed without costs. Memorandum: Family Court correctly determined that the best interests of the children of petitioner required that the petition for a change of custody be denied and that placement of Jason be extended for a period of 12 months. Petitioner commenced this proceeding seeking the return of her children Jason and Jennifer, whom she had surrendered to the Erie County Department of Social Services after executing a surrender for adoption pursuant to Social Services Law § 384. An evidentiary hearing was conducted following which Family Court determined that on the basis of the best interests test the present placement of Jason and Jennifer should remain undisturbed and Jason’s placement in foster care should be extended for 12 months. The evidence adduced at the hearing, including a psychological evaluation, provided full information upon which to predicate an informed determination.

We note, however, that on the facts of this case and responsive to respondent’s request, Family Court should have conducted an evidentiary hearing pursuant to section 384 (5) to determine whether fraud, duress or coercion had induced the surrender. This threshold inquiry should have preceded a "best interest” hearing. A determination made in such hearing may have been dispositive of the issues raised in the petition. The petitioner, however, was not prejudiced by the court’s failure to hold a section 384 (5) hearing inasmuch as petitioner would only have been entitled to a "best interest” hearing had the fraud and duress issues been resolved in her favor. Such a hearing was in fact conducted.

On the basis of this record the determination dismissing the petition should be sustained. (Appeal from order of Erie County Family Court, Notaro, J. — custody.) Present — Denman, J. P., Green, Balio, Lawton and Davis, JJ.

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Bluebook (online)

134 A.D.2d 879, 521 N.Y.S.2d 922, 1987 N.Y. App. Div. LEXIS 51069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linda-s-v-buscaglia-nyappdiv-1987.

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