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In re Rebecca B. (Anonymous)

Supreme Court of New York, Second Department

July 19, 2017

In the Matter of Rebecca B. (Anonymous), petitioner-respondent,
v.
Michael B. (Anonymous), et al., respondents-respondents, Orange County Department of Social Services, appellant. (Proceeding No. 1) In the Matter of Charles F. (Anonymous), et al., petitioners-respondents, Orange County Department of Social Services, appellant. (Proceeding No. 2) In the Matter of Hailey B. (Anonymous). Orange County Department of Social Services,
v.
appellant; Rebecca B. (Anonymous), respondent. (Proceeding No. 3) In the Matter of Kailyn B. (Anonymous). Orange County Department of Social Services, appellant; Rebecca B. (Anonymous), respondent. (Proceeding No. 4) In the Matter of Belicia W. (Anonymous). Orange County Department of Social Services,
v.
appellant; Charles F. (Anonymous), et al., respondents. (Proceeding No. 5) In the Matter of Danielle W. (Anonymous). Orange County Department of Social Services, appellant; Charles F. (Anonymous), et al., respondents. (Proceeding No. 6) Nos. G-1708-16, G-1709-16, G-1711-16, G-1712-16, N-5063-13, N-5064-13, N-5065-13, N-5066-13, B-1524-15/16B, B-1525-15/16B, B-1530-15/16B, B-1531-15/16B

          Langdon C. Chapman, County Attorney, Goshen, NY (Peter R. Schwartz of counsel), for appellants.

          Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (Milana Tepermayster and Lauren Ludvigsen of counsel), for respondents Rebecca B., Charles F., and Dorothy F.

          Kelley M. Enderley, Poughkeepsie, NY, attorney for the children.

          L. PRISCILLA HALL, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, BETSY BARROS, JJ.

          DECISION & ORDER

         Appeals by the Orange County Department of Social Services from (1) four orders of the Family Court, Orange County (Victoria B. Campbell, J.), each dated October 3, 2016, and (2) an order of that court dated October 4, 2016. The orders dated October 3, 2016, after a hearing, granted the separate petitions of the maternal grandparents and maternal aunt to be appointed as permanent guardians of the subject children. The order dated October 4, 2016, after a permanency hearing, changed the permanency goal for the subject children from adoption to placement with a fit and willing relative.

         ORDERED that the orders are reversed, on the law and the facts, without costs or disbursements, the respective petitions of the maternal grandparents and maternal aunt seeking appointment as permanent guardians of the subject children are denied, and the matter is remitted to the Family Court, Orange County, for further proceedings consistent herewith.

         In March 2016, the Family Court transferred guardianship and custody of the subject

         children to the Orange County Department of Social Services (hereinafter DSS) for the purpose of adoption after their mother's parental rights were terminated. Thereafter, the maternal grandparents, Charles F. and Dorothy F., and maternal aunt, Rebecca B., filed separate petitions seeking appointment as permanent guardians of the children. The Family Court held a consolidated permanency hearing and fact-finding hearing on the guardianship petitions. After the hearing, the Family Court changed the permanency goal for the subject children from adoption to placement with a fit and willing relative and granted the respective guardianship petitions. DSS appeals.

         Contrary to the contentions of the attorney for the children, the Family Court had jurisdiction to entertain the guardianship petitions (see Family Ct Act § 661[b]).

         "When considering guardianship appointments, the child's best interests are paramount" (Matter of Christopher P. v Jason Sidney G., 126 A.D.3d 980, 980). Once parental rights have been terminated, there is no presumption favoring the child's biological family over the proposed adoptive parents selected by an authorized agency (see Matter of Peter L, 59 N.Y.2d 513, 520; Matter of Nyasia E.R. [Michael R.], 121 A.D.3d 792, 794; Matter of Ender M.Z.-P. [Olga Z.], 109 A.D.3d 834, 836).

         Here, the Family Court's determination that it was in the children's best interests to grant the respective petitions for guardianship, rather than keeping the children with their foster parents for the purpose of adoption, lacks the requisite sound and substantial basis in the record (see Matter of Ender M.Z.-P. [Olga Z.], 109 A.D.3d at 836). The children Hailey and Kailyn have resided in the same foster home since June 2015, and the children Danielle and Belicia have resided in the same foster home since November 2015, where they have bonded with their foster parents and are happy, healthy, and well provided for (see Matter of Patricia I.H. v ACS-Kings, 140 A.D.3d 1165, 1166; Matter of Amari S.G.E. [Kiona E.], 132 A.D.3d 989, 990; Matter of Takylia B., 24 A.D.3d 759, 759). There is no presumption that the children's best interests will be better served by returning them to a family member, and it would not be in the children's best interests to do so here (see Matter of Nyasia E.R. ...


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