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

IN RE: SHELIA B., Petitioner-Appellant, v. SHIRELLE JASMINE B., Respondent, Administration for Children's Services, Respondent-Respondent.

Decided: November 24, 2009

MAZZARELLI, J.P., NARDELLI, CATTERSON, DeGRASSE, ROMAN, JJ. John J. Marafino, Mount Vernon, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for ACS, respondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia Colella of counsel), Law Guardian.

Order, Family Court, Bronx County (Jennifer Burtt, Referee), entered on or about March 19, 2008, which dismissed the petition of appellant grandmother for custody of the subject child, unanimously affirmed, without costs.

In light of the mother's surrender of parental rights and the child's adoption, the court properly dismissed the custody petition (see Matter of Linda S. v. Krishnia S., 50 A.D.3d 805, 806, 856 N.Y.S.2d 174 [2008];  Matter of Moorhead v. Coss, 17 A.D.3d 725, 792 N.Y.S.2d 709 [2005] ).   Although petitioner, the child's maternal grandmother, asserts that the court should have converted the custody petition to one for visitation, her counsel never expressly requested that the custody petition be treated as an application for visitation, nor did the petition request visitation.   Indeed, the petition provided virtually no information about petitioner's relationship with her grandson, other than that she is his grandmother and that he resided with her for three months in 2005 (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991] ).   Under the circumstances, the court was not required to treat petitioner's counsel's oral inquiry about visitation as a formal application (see Moorhead, 17 A.D.3d at 726, 792 N.Y.S.2d 709).   We take note however that petitioner is free to file a petition for visitation at any time.