| Matter of Alexis AA. (Angela YY.—Bradley AA.) |
| 2012 NY Slip Op 02354 [93 AD3d 1090] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alexis AA. and Another, Neglected Children.Clinton County Department of Social Services, Petitioner; Angela YY., Respondent, and BradleyAA., Appellant. |
—[*1] Reginald Bedell, Elizabethtown, attorney for the children.
Stein, J. Appeals from three orders of the Supreme Court (Lawliss, J.), entered November 4,2010 in Clinton County, which, in a proceeding pursuant to Family Ct Act article 10-A, amongother things, granted respondent Angela YY. sole custody of the subject children.
Respondent Angela YY. (hereinafter the mother) and respondent Bradley AA. (hereinafterthe father) are the unmarried parents of two children (born in 1999 and 2007). The mother andthe father shared joint legal custody of the children, with the mother having primary physicalcustody. After a petition was filed alleging the neglect of both children, the mother and the fathereach voluntarily admitted to having neglected the children, and Supreme Court placed thechildren in the custody of their paternal grandparents.
Following the mother's successful completion of all required programs designed to addressher substance abuse and mental health issues, petitioner revised its permanency plan to [*2]reflect a plan for final discharge of the children to the joint custodyof the mother and the father, with primary physical custody to the mother. Supreme Courtthereafter determined—with the consent of petitioner, the mother, the father and theattorney for the children—that it was in the children's best interests to return them to thecustody of the mother and entered permanency hearing orders which, among other things,terminated the children's placement with petitioner and discharged the children to the mother'scustody. In addition, however, the court sua sponte entered an order of custody granting themother sole physical and legal custody of the children, with visitation to the father. The fathernow appeals from both the permanency hearing orders and the order of custody.[FN*]
The father argues that Supreme Court's sua sponte order granting the mother sole legalcustody of the parties' children was in error. We agree. Family Ct Act § 1089 (d) (1)authorizes the court to terminate a child's Family Ct Act article 10-A placement by issuing apermanency hearing order mandating the immediate return of that child to the care of his or herparent (see Family Ct Act § 1089 [d] [1]; Matter of Hayley PP. [Christal PP.—Cindy QQ.], 77 AD3d1133, 1134 [2010], lv denied 15 NY3d 716 [2010]). However, the court may notissue a separate custody order determining or modifying the rights of the child's parents to legalcustody absent a specific request for such relief made pursuant to Family Ct Act article 6 (see Matter of Adams v Bracci, 61AD3d 1065, 1067 [2009], lv denied 12 NY3d 712 [2009]). Before a parent may bedeprived of legal custody of his or her child, the parent must be given notice that legal custody isin issue and be afforded an opportunity to present relevant evidence (see Matter of Jeffrey JJ. v StephanieKK., 88 AD3d 1083, 1084 [2011]; Matter of Adams v Bracci, 61 AD3d at1067). Even if the proper notice is afforded to a parent, an existing order of custody should notbe modified absent " 'a showing that there has been a subsequent change of circumstances andmodification is required' to ensure the best interests of the children" (Matter of Laware v Baldwin, 42 AD3d696, 696 [2007], quoting Family Ct Act § 467 [b] [ii]; accord Matter of Hayward vThurmond, 85 AD3d 1260, 1261 [2011]; see Matter of Prefario v Gladhill, 90 AD3d 1351, 1352 [2011]).
Here, petitioner's permanency plan—to which all parties consented—providedfor final discharge of the children to the joint custody of the mother and the father, with primaryphysical custody to the mother. Supreme Court approved petitioner's permanency goal and issuedits permanency hearing orders to reflect the children's discharge to their mother. In view of thelack of notice to the father of the court's intention to modify his pre-existing right to joint legalcustody of the children and the resulting deprivation of his due process rights, the court erred inissuing a separate order granting the mother sole legal custody upon the bald assertion that doingso was in the children's best interests. Thus, we reverse that portion of the custody order grantingthe mother sole legal custody of the parties' children.
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order of custody enteredNovember 4, 2010 is modified, on the law, without costs, by reversing so much thereof asawarded sole legal custody of the parties' children to respondent Angela YY., and, as somodified, affirmed. Ordered that the permanency hearing orders entered November 4, 2010 areaffirmed, without costs.
Footnote *: Neither the mother norpetitioner has taken a position on this appeal. Moreover, although the father appealed fromSupreme Court's permanency hearing orders, his brief is limited to the propriety of the orderawarding sole custody to the mother. Thus, his appeals from the permanency hearing orders isdeemed abandoned (see Matter of Senator NN., 305 AD2d 819, 820 [2003]).