| Matter of Leval B. v Kiona E. |
| 2014 NY Slip Op 01450 [115 AD3d 665] |
| March 5, 2014 |
| Appellate Division, Second Department |
| In the Matter of Leval B., Appellant, v Kiona E.,Respondent. (Proceeding No. 1.) In the Matter of Leval B., Appellant, v George E.,Respondent. (Proceeding No. 2.) In the Matter of Leval B., Appellant, v WestchesterCounty Department of Social Services, Respondent. (Proceeding No.3.) |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro-Blanco andThomas G. Gardiner of counsel), for respondent Westchester County Department ofSocial Services. Karen M. Jansen, White Plains, N.Y., attorney for the children.
In three related child custody proceedings pursuant to Family Court Act article 6,Leval B., the great aunt of the subject children, appeals from an order of the FamilyCourt, Westchester County (Schauer, J.), entered June 19, 2012, which, after a hearing,dismissed her petitions for custody of the subject children.
Ordered that the order is reversed, on the law, without costs or disbursements, thepetitions are reinstated, and the matter is remitted to the Family Court, WestchesterCounty, for further proceedings consistent herewith; in the interim, the subject childrenshall remain with their current foster family.
In January 2010, the parents of the subject children consented to a finding that theyhad permanently neglected the subject children, who had been living in foster care sinceMay 2007. Pursuant to those consent findings, the Family Court entered a suspendedjudgment with respect to each of the subject children and directed the parents to complywith certain terms and conditions. Several months later, (1) the Westchester CountyDepartment of Social Services (hereinafter the DSS) moved, inter alia, to revoke thesuspended judgments, based on the violation by the parents of the terms and conditionsof the suspended judgments, and to terminate the parental rights of the [*2]parents; (2) Leval B. the great aunt (hereinafter the aunt),filed petitions seeking custody of the subject children; (3) Tyeisha H., the mother'scousin (hereinafter the cousin), filed custody petitions; and (4) Marilyn S. the subjectchildren's maternal grandmother (hereinafter the grandmother), filed visitation petitions.Following a combined dispositional hearing on the motion and the petitions, the FamilyCourt revoked the suspended judgments, terminated the parents' parental rights, andfreed the subject children for adoption. The Family Court also dismissed the custody andvisitation petitions. On this appeal, the aunt appeals from the order dismissing herpetitions. In related appeals from other orders (see Matter of Marilyn S. v KionaE., 115 AD3d 669 [2014] [decided herewith]; Matter of Tyeisha H. v Kiona E., 115 AD3d 669 [2014] [decided herewith]; Matter of Amari S.G.E. (Kiona E.), 115 AD3d 667 [2014] [decided herewith]), the mother appeals from stated portions of two modifiedorders of disposition which, among other things, revoked the suspended judgments,terminated her parental rights, and freed the subject children for adoption, the cousinappeals from an order that dismissed her custody petitions, and the grandmother appealsfrom the order that dismissed her visitation petitions.
In these proceedings, the Family Court's best-interest determinations rested, in largepart, on the evidence that the subject children had been with the same preadoptive fosterfamily for three years and apparently were doing very well. It has been brought to ourattention, however, that, in April 2013, while these related appeals were pending, theDSS removed the children from the preadoptive foster family's care upon learning thatthey had been abused, and placed them with a different foster family.
As the Court of Appeals has recognized, changed circumstances may have particularsignificance in child custody matters and may render the record on appeal insufficient toreview whether the Family Court's determinations are still in the best interests of thechildren (see Matter of Michael B., 80 NY2d 299, 318 [1992]; Matter of Gatke v Johnson, 50AD3d 798, 798 [2008]). Here, in light of the highly significant new development asto the subject children's removal from the preadoptive foster family with which they hadspent three years, the record is no longer sufficient to determine which arrangement is inthe best interests of the subject children. Accordingly, the order must be reversed and thematter remitted to the Family Court, Westchester County, for a new, expedited hearingand a new, expedited determination of the aunt's petitions. We express no opinion as tothe appropriate determinations (see Matter of Gatke v Johnson, 50 AD3d at 798).Balkin, J.P., Sgroi, Cohen and LaSalle, JJ., concur.