IN RE: Jo Ann STEFANIK

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

IN RE: Jo Ann STEFANIK, Respondent, v. Jo Ann ROBERTS, Respondent, Joseph Kochanski, Appellant.

Decided: November 24, 1999

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. Paul J. Connolly, Albany, for appellant. Pamela J. Joern, Albany, for Jo Ann Stefanik, respondent.

Appeal from an order of the Family Court of Albany County (Maney, J.), entered October 21, 1998, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of respondent's daughter.

Respondent Jo Ann Roberts, mother of the eight-year-old child at issue, began residing with her daughter and the child's father, respondent Joseph Kochanski, in August 1997.   Apparently Roberts had little previous contact with the child and as a result of problems which developed due to Roberts' drug usage, the child moved in with petitioner, her grandmother.   This prompted petitioner to file a petition for temporary custody of her granddaughter in September 1998 alleging serious substance abuse problems in respondents' household.

Family Court initially awarded temporary custody to petitioner, suspended Kochanski's visitation and ordered a Family Court Act § 1034 investigation on September 1, 1998.   The temporary custody order was extended and in October 1998 a final order of custody for petitioner was entered which provided, inter alia, Kochanski with supervised visitation.   Kochanski now appeals.

Initially, we note there was no evidentiary hearing.   The sole basis for the change in custody ordered by Family Court was the purported consent of respondents.   Our review of the transcript of the court appearances reveals that Kochanski may reasonably have thought that he was consenting to an award of temporary physical custody, not permanent custody, due to his drug treatment efforts.   Because the final order of custody herein displaced a biological parent without a hearing (see, Matter of D'Entremont v. D'Entremont, 254 A.D.2d 576, 576-577, 678 N.Y.S.2d 819;  see generally, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548-549, 387 N.Y.S.2d 821, 356 N.E.2d 277), it was crucial that the record show that an informed consent was obtained.   For this reason, we reverse the final order of custody and reinstate the temporary order of custody dated September 24, 1998, modified to the extent of continuing Kochanski's supervised visitation with his daughter.

ORDERED that the order is reversed, on the law and the facts, without costs, and the temporary order of custody dated September 24, 1998 is reinstated with a provision that visitation between the child and respondent Joseph Kochanski shall be in a supervised therapeutic setting.

GRAFFEO, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.

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