Opinion
644 CAF 19-02051
07-17-2020
In the Matter of AMBER W., Petitioner-Appellant, v. ERIE COUNTY CHILDREN'S SERVICES, Respondent-Respondent.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR RESPONDENT-RESPONDENT.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR RESPONDENT-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In a prior proceeding pursuant to Social Services Law § 384-b, Family Court terminated the parental rights of the mother with respect to the subject child on the ground of abandonment and placed the child in the custody and guardianship of Erie County Department of Social Services (DSS) ( Matter of Armani W. [Adifah W.] , 167 A.D.3d 1569, 91 N.Y.S.3d 644 [4th Dept. 2018] ). Thereafter, petitioner, who is the child's maternal aunt, commenced this proceeding pursuant to Family Court Act article 6 seeking custody of the child. Petitioner appeals from an order dismissing the petition with prejudice. We affirm.
Where, as here, a court has terminated parental rights and committed a child's custody and guardianship to an authorized agency thereby freeing the child for adoption, "adoption bec[o]me[s] the sole and exclusive means to gain care and custody of the child" and, thus, the court at that point "is without authority to entertain custody ... proceedings commenced by a member of the child's [extended] family" ( Matter of Genoria SS. v. Christina TT. , 233 A.D.2d 827, 828, 650 N.Y.S.2d 830 [3d Dept. 1996], lv denied 89 N.Y.2d 811, 657 N.Y.S.2d 403, 679 N.E.2d 642 [1997] ; see Social Services Law § 384-b[10], [11] ; Matter of Boyd v. Westchester County Dept. of Social Servs. , 149 A.D.3d 1069, 1070, 50 N.Y.S.3d 886 [2d Dept. 2017] ; Matter of Mu'Min v. Mitchell , 19 A.D.3d 1116, 1117, 797 N.Y.S.2d 818 [4th Dept. 2005] ; see also Matter of Peter L. , 59 N.Y.2d 513, 518-519, 466 N.Y.S.2d 251, 453 N.E.2d 480 [1983] ). Under these circumstances, petitioner's "recourse was to seek adoption, and not mere custody, of the ... child" ( Boyd , 149 A.D.3d at 1070, 50 N.Y.S.3d 886 ; see Matter of Herbert PP. v. Chenango County Dept. of Social Servs. , 299 A.D.2d 780, 781, 751 N.Y.S.2d 96 [3d Dept. 2002] ). Thus, "in view of the termination of the [mother's] parental rights and the commitment of the child's custody and guardianship to [DSS]," we conclude that, contrary to petitioner's contention, the court properly dismissed the petition without conducting a hearing ( Mu'Min , 19 A.D.3d at 1117, 797 N.Y.S.2d 818 ; see Boyd , 149 A.D.3d at 1070, 50 N.Y.S.3d 886 ).
In light of our determination, petitioner's remaining contention is academic.