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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Melinda LONDON, Petitioner–Appellant, v. NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES and Elbert Wright, Respondents–Respondents.

Decided: December 30, 1999

PRESENT:  LAWTON, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ. Kathleen E. Casey, Middleport, for petitioner-appellant. David Michael Heim, Tonawanda, for respondent-respondent Niagara County Deparment of Social Services.

 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 A.D.2d 974, 366 N.Y.S.2d 692;  see, People ex rel. Scarpetta v. Spence–Chapin Adoption Serv., 28 N.Y.2d 185, 191, 321 N.Y.S.2d 65, 269 N.E.2d 787, appeal dismissed and cert. denied sub nom. DeMartino v. Scarpetta, 404 U.S. 805, 92 S.Ct. 54, 30 L.Ed.2d 38), and the court may “direct a change of custody from the authorized agency back to the parent notwithstanding the formal document of surrender” (Matter of Franciska J. GG. v. Duquette, 64 A.D.2d 787, 407 N.Y.S.2d 750;  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] ).

Amended order unanimously reversed on the law without costs, petition reinstated and matter remitted to Niagara County Family Court for further proceedings.


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