IN RE: SETH M. and Tryston M. (2009)

Respondent mother appeals from an order adjudicating her children who are the subject of this proceeding to be permanently neglected and terminating her parental rights with respect to them. We note at the outset that the mother contends for the first time on appeal that Family Court erred in accepting her consent to the finding of permanent neglect without conducting a further inquiry into her capacity to consent and thus failed to preserve that contention for our review (see Matter of Bert M., 50 A.D.3d 1509, 856 N.Y.S.2d 758, lv denied 11 N.Y.3d 704, 864 N.Y.S.2d 807, 894 N.E.2d 1198; cf. Matter of Jeffrey M., 6 A.D.3d 1156, 775 N.Y.S.2d 667). In any event, we conclude that her contention lacks merit.

Contrary to the mother's further contention, the court did not abuse its discretion in declining to conduct an in camera interview of the two children at issue during the dispositional hearing (see generally Matter of Crystal Q., 173 A.D.2d 912, 913, 569 N.Y.S.2d 775, lv denied 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443).

Finally, as petitioner correctly concedes, the court erred in determining that it lacked the authority to permit post-termination visitation between the mother and the two children at issue (see Matter of Josh M., 61 A.D.3d 1366, 1367, 877 N.Y.S.2d 784; Bert M., 50 A.D.3d at 1511, 856 N.Y.S.2d 758; Matter of Kahlil S., 35 A.D.3d 1164, 830 N.Y.S.2d 625, lv dismissed 8 N.Y.3d 977, 836 N.Y.S.2d 546, 868 N.E.2d 229). We therefore modify the order by remitting the matter to Family Court to determine, following a further hearing, if necessary, whether post-termination contact between the mother and the two children is in the best interests of those children (see Bert M., 50 A.D.3d at 1511, 856 N.Y.S.2d 758).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by remitting the matter to Family Court, Jefferson County, for further proceedings in accordance with the memorandum and as modified the order is affirmed without costs.

MEMORANDUM: