| Matter of Michael WW. |
| 2007 NY Slip Op 09475 [45 AD3d 1227] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Michael WW., a Child Who has Been Freed forAdoption. Clinton County Department of Social Services, Appellant; Cheryl Maxwell, as LawGuardian, Respondent. |
—[*1]
Kane, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredJuly 12, 2006, which, in a proceeding pursuant to Family Ct Act article 10-A, found thatpetitioner did not make reasonable efforts to finalize the permanency plan of adoption forMichael WW.
Michael WW. (born in 1990) was freed for adoption and began living in a residential facility.At a January 2006 permanency hearing, Family Court found that petitioner failed to makereasonable efforts to finalize the permanency plan of adoption. By order dated January 17, 2006,the court required petitioner to immediately take all steps necessary to address a barrier toMichael's adoption by placing him in a facility that could provide sexual abuse victim andoffender treatment directed at adolescents who are moderately mentally retarded. Michael wasplaced in an appropriate facility in Massachusetts on June 12, 2006.
Petitioner filed a permanency hearing report (see Family Ct Act § 1089 [b],[c]), and Family Court held a permanency hearing in June 2006, where the evidence consisted ofthe progress letters and testimony by petitioner's caseworker handling Michael's case. The courtapproved the permanency plan, but found that petitioner again failed to make reasonable effortsto finalize that plan of adoption. Petitioner appeals.[*2]
Petitioner made reasonable efforts to finalize thepermanency plan. A court's order following a permanency hearing where a child has been freedfor adoption must include in its findings a determination of whether reasonable efforts have beenmade to effectuate and finalize the plan for adoption of the child (see Family Ct Act§ 1089 [d] [2] [iii]). This case presents a matter of first impression concerning theapplication of the reasonable efforts standard under this 2005 statute.
Here, the evidence shows that within two weeks of receiving Family Court's order followingthe January 2006 hearing, petitioner investigated all facilities in New York which might offer theservices that Michael needed. When no suitable facilities were located, the search was expandedto include Massachusetts and Vermont, the two contiguous states closest to Clinton County. Lessthan two weeks after no suitable New York placement could be located, informational packetshad been sent to a number of facilities, the possibilities were narrowed to three or four facilitiesand two facilities interviewed Michael to determine the appropriateness of his placement withthem. Within one week after Michael had been accepted by the last of the three potentialfacilities, petitioner selected what it considered the most suitable placement for Michael.Petitioner then sought approval by the state office for Interstate Compact on the Placement ofChildren, an approval which could not be obtained until a facility had been chosen (seeSocial Services Law § 374-a). That approval was granted approximately three weeks aftersubmission. When the chosen facility was informed of compact approval a few days later, itsstaff informed petitioner that no opening existed at that time but Michael could be admitted in amatter of weeks. Petitioner had weekly contact with the facility, which continued to advisepetitioner that it was waiting on the discharge of a present student so a bed would open forMichael, who was first on the list. Due to unanticipated delays at the facility, and through nofault attributable to petitioner, no opening materialized until the first week of June 2006. Michaelwas admitted to the facility on June 12, 2006.
Throughout this time, petitioner listed Michael in the photo-list of children available foradoption. Petitioner also maintained contact with his uncle, who was a former foster parent forMichael and current foster parent for his brother. Pursuant to the January 17, 2006 order,petitioner kept Family Court informed of its placement progress through biweekly writtenreports. Although the actual placement in a suitable facility did not occur until several monthsafter the court's prior order, and the court was understandably frustrated with petitioner's failureto make reasonable efforts in the time prior to entry of that January order, we find that petitioner'sefforts between January and June 2006 to further the permanency plan of adoption werereasonable under the circumstances.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is modified,on the law and the facts, without costs, by reversing so much thereof as found that petitioner didnot make reasonable efforts to finalize the permanency plan of adoption for Michael WW.;matter remitted to the Family Court of Clinton County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.