Reset A A Font size: Print

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

IN RE: ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of EDWARD L. (Anonymous), Respondent; Randolph L. (Anonymous), Appellant.

Decided: May 26, 1998

Before BRACKEN, J.P., and MILLER, O'BRIEN and COPERTINO, JJ. Darren DeUrso, Harrison, for appellant. Richard B. Golden, County Attorney, Goshen (Stephen Toole, of counsel), for respondent.

In a proceeding pursuant to Social Services Law § 384-b and Family Court Act article 6 to terminate parental rights on the basis of permanent neglect, the father appeals from an order of disposition of the Family Court, Orange County (Bivona, J.), entered January 13, 1997, which, after a fact-finding hearing, inter alia, terminated his parental rights.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for a dispositional hearing in accordance herewith.   The Family Court's findings of fact are affirmed.

 The evidence adduced at the fact-finding hearing clearly and convincingly established that the father had permanently neglected his son by failing to plan for his future for a period of more than one year, notwithstanding the diligent efforts of the petitioner (see, Social Services Law § 384-b[7][a];  Matter of Gregory B., 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052;  Matter of Anthony R., 239 A.D.2d 586, 657 N.Y.S.2d 209).  Nevertheless, the matter must be remitted.

 It was reversible error for the Family Court to dispense with a dispositional hearing in the absence of the consent of the parties (see, Family Court Act § 631;  Matter of Shavonda GG., 232 A.D.2d 780, 782, 648 N.Y.S.2d 731;  Matter of Verquan B., 225 A.D.2d 1062, 639 N.Y.S.2d 212;  Matter of Thomas Dewayne W., 207 A.D.2d 496, 615 N.Y.S.2d 916;  Matter of Casondra W., 184 A.D.2d 1070, 585 N.Y.S.2d 270;  Matter of Jessica UU., 174 A.D.2d 98, 578 N.Y.S.2d 925;  Matter of Rosa B., 161 A.D.2d 1152, 555 N.Y.S.2d 512;  Matter of Loretta OO., 114 A.D.2d 648, 494 N.Y.S.2d 232;  Matter of Amber W., 105 A.D.2d 888, 891-892, 481 N.Y.S.2d 886).   At the conclusion of the fact-finding hearing, the Assistant County Attorney asked the court how it intended to proceed and the court replied that it would render a dispositional order without holding a separate dispositional hearing.   Neither the Law Guardian nor the attorney for the father consented to this.   Since there was no specific waiver of the otherwise statutorily-required hearing, the court's dispositional order is improper and the matter must be remitted for a dispositional hearing (see also, Matter of Scott M., 237 A.D.2d 603, 655 N.Y.S.2d 600;  Matter of Jessica FF., 211 A.D.2d 948, 621 N.Y.S.2d 722;  Matter of Brian W., 199 A.D.2d 1021, 606 N.Y.S.2d 105).


Copied to clipboard