IN RE: EUGENE L. and Others (2005)

Orders of disposition, Family Court, New York County (Susan Larabee, J.), entered on or about April 13, 2004, which, upon a fact-finding determination of permanent neglect, terminated respondent's parental rights to the subject children and committed their custody and guardianship to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously modified, on the facts, to vacate the order that terminated respondent's parental rights to the child Eugene and freed him for adoption, and the matter remanded to Family Court for a new dispositional hearing regarding the best interests of Eugene, and otherwise affirmed, without costs.

The finding of permanent neglect is supported by clear and convincing evidence of respondent's failure to cooperate with the agency's diligent efforts to assist her in regularly visiting the children and in undertaking the therapy and acquiring the parenting skills necessary to address the children's special needs (see Matter of Star Leslie W., 63 N.Y.2d 136, 142-143, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).   Although a preponderance of the evidence at the dispositional hearing shows that the children's adoption by their respective foster families is in their best interests (see id. at 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824), we remand for a new dispositional hearing with respect to Eugene's best interests since petitioner and the Law Guardian have advised that Eugene has moved to a therapeutic foster home that is not a pre-adoptive home and has expressed a desire to be with his biological family (see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992];  Matter of Marc David D., 20 A.D.3d 565, 799 N.Y.S.2d 552 [2005] ).   Respondent's claim that the agency's case records were improperly admitted into evidence is unpreserved, and her other claims concerning evidentiary rulings are unavailing.