Summary
rejecting mother's contentions that termination proceeding was barred by res judicata because earlier petition was dismissed, reasoning that evidence in the later petition concerned allegations of neglect not covered by the earlier petition
Summary of this case from In re N.H. Div. for Children, Youth & FamiliesOpinion
March 25, 1996
Appeal from the Family Court, Nassau County (Medowar, J.).
Ordered that the order of disposition is reversed, on the law, the fact-finding order is vacated, and the petition is dismissed.
The instant petition was brought in 1991 for guardianship and custody of the child Jean G. and to terminate the parental rights of her mother due to the mother's mental illness (Social Services Law § 384-b [c]). The evidence adduced at the fact-finding hearing established, by the requisite clear and convincing standard (Social Services Law § 384-b [g]; see, Matter of Hime Y., 52 N.Y.2d 242), that as a result of her affliction with a schizo-affective disorder, the mother was presently and for the foreseeable future would be unable to provide proper and adequate care for the child ( see, Matter of Pauline Y., 193 A.D.2d 686; Matter of Norma Jean H., 179 A.D.2d 759). However, notwithstanding the sufficiency of the evidence, which also demonstrated that the child was doing well in the foster care of her aunt, her proposed adoptive parent, the dispositional order must nevertheless be reversed on jurisdictional grounds.
Social Services Law § 384-b (3) (e) clearly mandates that a petition brought under section 384-b must be accompanied by an express warning that the proceeding may result in an order freeing the child for adoption without the consent of or notice to, among others, the parents. This warning must also advise the parent that he or she has the right to counsel, including the right to assigned counsel if he or she is financially unable to retain counsel. While the notice provision of the instant summons alerted the mother to the fact that the petition sought custody and guardianship of the child, and could result in the termination of parental rights, it made no mention whatsoever of the possibility that it could also result in the adoption of the child without the mother's consent as expressly mandated by the statute. The summons likewise was deficient insofar as it omitted any reference to the mother having any right to counsel, retained or assigned. Accordingly, inasmuch as the summons failed to include the requisite warnings, it is defective and the proceeding must be dismissed ( see, Matter of Phillip Whitney B., 199 A.D.2d 1061; Matter of Karen L., 80 A.D.2d 681). However, our dismissal is without prejudice to the service of a new summons and petition containing the mandated warnings if the petitioner be so advised. In this regard, we note that the mother's contentions that the instant proceeding was barred by res judicata as a result of the dismissal of a 1990 petition to terminate her parental rights are without merit. The evidence adduced in the instant proceeding concerned subsequent allegations of neglect not covered by the 1990 petition ( see, Jorgensen v Jorgensen, 86 A.D.2d 861; Matter of Denlow, 87 Misc.2d 410; Matter of Grenier v Grenier, 165 Misc. 784).
In light of our determination we need not reach the mother's remaining contentions. Bracken, J.P., Rosenblatt, Miller and Friedmann, JJ., concur.