| Matter of Heidi E. (Tresea F.\MPhyllis G.) |
| 2009 NY Slip Op 08901 [68 AD3d 1174] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Heidi E. and Another. Tresea F., Appellant; PhyllisG. et al., Respondents. |
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Kane, J. Appeal from an order of the Family Court of Warren County (Breen, J.), enteredAugust 1, 2008, which dismissed petitioner's application, in a proceeding pursuant to DomesticRelations Law § 112-b, for enforcement of a postadoption contact agreement.
In 2001, petitioner executed judicial surrenders of her two daughters (born in 1991 and1995), who were then adopted by respondents. The surrenders included postadoption contactagreements permitting petitioner to receive annual photographs of the children and an annualvisit arranged by the parties, but the visits could be suspended if deemed detrimental to eitherchild by a therapist. Having never received a visit, petitioner commenced this proceedingseeking to enforce the agreement. After Family Court ordered a psychological evaluation, theparties agreed to arrange a therapeutic visit with petitioner, the children and a counselor. Thevisit never took place due to the children's apparent refusal to attend. The court then dismissedthe petition without a hearing. Petitioner appeals.
Initially, issues concerning visitation with the older child are moot, as she is now 18 yearsold (cf. Matter of Norwood vCapone, 15 AD3d 790, 793 [2005], appeal dismissed 4 NY3d 878 [2005];Matter of Carnese v Wiegert, 273 AD2d 554, 556 [2000]). Regarding the younger child,Family Court erred in dismissing the petition without a hearing. An evidentiary hearing isgenerally necessary to determine what is in the best interests of the child (see Matter of Howard v [*2]Barber, 47 AD3d 1154, 1155 [2008]). While the hearingcourt's determination of best interests will only be disturbed if it lacks a sound and substantialbasis in the record (see Matter ofSamuel v Samuel, 64 AD3d 920, 921 [2009]), no record was created in this matter. Thecourt based its determination on the court-ordered psychological evaluation and unswornstatements made during court appearances. The information provided to the court raised factualquestions concerning whether an annual visit with petitioner would be detrimental to the child'sbest interests, requiring an evidentiary hearing to resolve the issue (see Matter of Omar,277 AD2d 387, 387 [2000]; cf. Matter of Howard v Barber, 47 AD3d at 1155; Matterof La Bier v La Bier, 291 AD2d 730, 732-733 [2002], lv dismissed 98 NY2d 671[2002]; Matter of Patricia YY. v Albany County Dept. of Social Servs., 238 AD2d 672,674 [1997]).
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as dismissed that portion of the petitionseeking to enforce the postadoption contact agreement for visitation with Savannah E.; matterremitted to the Family Court of Warren County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.