London v. Niagara County Department of Social Services

267 A.D.2d 1034, 700 N.Y.S.2d 335, 1999 N.Y. App. Div. LEXIS 13801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1999
• Status: Published

Opinion

—Amended order unanimously reversed on the law without costs, petition reinstated and matter remitted to Niagara County Family Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding under article 6 of the Family Court Act seeking custody of a child she surrendered for adoption pursuant to Social Services Law § 384. Family Court erred in dismissing the petition without a hearing. The child was never adopted and is in foster care. Until a surrendered child has been placed in an adoptive home, “the surrender remains under and subject to judicial supervision” (.People ex rel. Patricia “BB” v Albany County Dept, of Social Servs., 47 AD2d 974; see, People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, 191, appeal dismissed and cert denied sub nom. DeMartino v Scarpetta, 404 US 805), and the court may “direct a change of custody from the authorized agency back to the parent notwithstanding the formal document of surrender” (Matter ofFranciska J. GG. v Duquette, 64 AD2d 787, 788; see, Social Services Law § 383 [1]). We therefore remit the matter to Niagara County Family Court for a hearing before another Judge to determine the best interests of the child and whether petitioner “is fit, competent and able to duly maintain, support and educate” him (Social Services Law § 383 [1]). (Appeal from Amended Order of Niagara County Family Court, Crapsi, J.— Custody.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.