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Court Listens to Two Related Cases Pursuant to Social Services Law 384b

 

The two cases below are about family law and proceedings.

The first case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Ordered that the orders of disposition are reversed, on the law and in the exercise of discretion, without costs or disbursements, the violation petition is denied, and the matter is remitted to the Family Court, Nassau County, to conduct a fact-finding hearing on the neglect petitions and issue orders of disposition.he Nassau County Department of Social Services (hereinafter DSS) petitioned to terminate the mother’s parental rights to her two children. These petitions culminated allegedly on the mother’s consent without admissions and without a fact-finding hearing in a six-month order suspending judgment which covered both children and which had no stated terms or conditions. Within the six-month period, DSS filed a single petition covering both children alleging that the mother violated the order suspending judgment with respect to each child. The Family Court revoked the order suspending judgment and terminated the mother’s parental rights to both children. We reverse.

The Nassau County Department of Social Services (hereinafter DSS) petitioned to terminate the mother’s parental rights to her two children. These petitions culminated allegedly on the mother’s consent without admissions and without a fact-finding hearing in a six-month order suspending judgment which covered both children and which had no stated terms or conditions. Within the six-month period, DSS filed a single petition covering both children alleging that the mother violated the order suspending judgment with respect to each child. The Family Court revoked the order suspending judgment and terminated the mother’s parental rights to both children. We reverse.

The mother’s contention that the order suspending judgment lacked specific terms and conditions and, therefore, the Family Court erred in revoking it and in terminating her parental rights, is unpreserved for appellate review (see Matter of Kim Shantae M., 221 AD2d 199 [1995]). However, we review the mother’s argument in the exercise of discretion.

The Uniform Rules for the Family Court (22 NYCRR) § 205.50 (a) requires an order suspending judgment to contain at least one of the terms and conditions enumerated therein. Here, the order suspending judgment did not do so. It fact, it contained no terms or conditions at all. Accordingly, since the mother could neither comply with nor violate the order suspending judgment, the Family Court erred in terminating her parental rights based on its violation (see 22 NYCRR 205.50 [d]).

We reject the contention of DSS that the appeal must be dismissed because the orders of disposition allegedly were entered upon the mother’s default. The orders of disposition do not recite her default, apparently because she was represented by counsel at the hearing culminating in the orders appealed from (see Matter of Sales v Gisendaner, 272 AD2d 997 [2000]).

Because the Family Court never held a hearing on the neglect petitions, we remit this matter to the Family Court, Nassau County, to conduct a fact-finding hearing on the neglect petitions and to issue orders of disposition.

The parties’ remaining contentions need not be reached in light of our disposition.

The second case deals with two consolidated proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (DeMaro, J.), dated October 11, 1985, as amended October 25, 1985, which, inter alia, awarded custody of the parties’ two children to the father.

Order, as amended, reversed, on the law and the facts, with costs, custody of the children is awarded to the appellant mother and the proceeding is remitted to the Family Court, Nassau County, to determine the visitation to be awarded to the petitioner, in accordance herewith. In the interim, the petitioner is awarded visitation as it was established under an order of the Family Court, Nassau County, dated May 10, 1985, which temporarily fixed child custody and visitation.

Although custody determinations are ordinarily a matter of discretion for the trial court, this court cannot allow a custody determination to stand where it lacks a sound and substantial basis in the record and is contrary to the weight of the credible evidence (see, Freiman v. Freiman, 99 A.D.2d 765, 471 N.Y.S.2d 870; Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). The Family Court’s finding that a change of custody to the petitioner was in the best interests of the children (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765), is not supported by the record. The Forensic Services Section of the Nassau County Department of Mental Health, the Nassau County Probation Department and the children’s court-appointed Law Guardian all recommended that custody of the children remain with their natural mother and nothing in the parties’ testimony at the Family Court hearing speaks for a different conclusion. The Family Court failed to state, in its decision, any reason for disregarding the collective recommendations of these disinterested persons. Additionally, the Family Court apparently failed to consider the parties’ prior voluntary agreement which, except for a disputed period of some three to seven months, gave physical custody of the children to the respondent (see, Friederwitzer v. Friederwitzer, supra; Alan G. v. Joan G., 104 A.D.2d 147, 153, 482 N.Y.S.2d 272, appeal dismissed 64 N.Y.2d 1040, 489 N.Y.S.2d 1029, 478 N.E.2d 212).

Joint custody of the children is not advisable in this situation since the parties have not demonstrated that they have a stable, amicable relationship (see, Braiman v. Braiman, 44 NY2d 584, 590-591, 407 N.Y.S.2d 449; Matter of Bishop v. Lansley, 106 A.D.2d 732, 483 N.Y.S.2d 767). However, a liberal visitation schedule is desirable and this matter is remitted to the Family Court for an award of visitation on alternate weekends, plus whatever additional days or evenings, holidays and vacation periods are convenient for the parties. In the interim, the petitioner is to have visitation as it was established under the Family Court’s temporary custody and visitation order, dated May 10, 1985.

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