                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      519222
________________________________

In the Matter of SIEARRA L.
   and Others, Infants.

DEBORAH L.,                                 MEMORANDUM AND ORDER
                    Appellant;

OTSEGO COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent.
________________________________


Calendar Date:   May 28, 2015

Before:   Garry, J.P., Egan Jr., Rose and Lynch, JJ.

                              __________


     Monica V. Carrascoso, Cooperstown, for appellant.

      Steven Ratner, Otsego County Department of Social Services,
Cooperstown, for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Family Court of Otsego County
(Burns, J.), entered March 19, 2014, which dismissed petitioner's
application, in a proceeding pursuant to Social Services Law
§ 383-c, to enforce the terms of three conditional judicial
surrenders.

      Petitioner is the mother of three children (born in 1997,
1999 and 2000). Beginning in 2003, respondent filed a series of
petitions seeking, among other things, a determination that
petitioner had neglected her children. Ultimately, in August
2006, petitioner separately executed a conditional judicial
surrender for each of the three children, the terms of which
                              -2-                519222

provided petitioner with, among other things, "one supervised
visit [each] year as arranged through [respondent]" – subject to
petitioner's compliance with the specified conditions set forth
therein. Family Court approved each of the conditional judicial
surrenders, finding that the terms and conditions set forth
therein were in each child's best interests, and the permanency
goal for each of the children thereafter was changed to placement
for adoption.

      According to petitioner, she initially refrained from
seeking visitation with her children, "respecting [respondent's]
verbal request . . . that the children be allowed to make the
transition to their adoptive families." Beginning in 2009,
petitioner alleges, she sought visitation "approximately every
year [but has] never been allowed to visit" her children. As a
result, petitioner commenced the instant proceeding on March 17,
2014 seeking to enforce the terms of the conditional judicial
surrenders.1 Two days later, Family Court sua sponte dismissed
the petition for failure to state a cause of action. Petitioner
now appeals.

      We reverse. The guardianship of a minor child in foster
care "may be committed to an authorized agency by a written
instrument which shall be known as a surrender" (Social Services
Law § 383-c [1]); the surrender, in turn, "shall be upon such
terms and subject to such conditions as may be agreed upon by the
parties thereto" (Social Services Law § 383-c [2] [a]). If such
surrender "does not designate a particular person or persons who
will adopt the child, the child's birth parent or parents, the
authorized agency having care and custody of the child and the
child's attorney may enter into a written agreement providing for
communication or contact, on such terms and conditions as may be
agreed to by the parties. . . . If the court before which the
surrender instrument is presented for approval determines that
the agreement . . . is in the child's best interests, the court
shall approve the agreement" (Social Services Law § 383-c [2]


    1
        Petitioner sought similar relief in 2007 and 2013; the
2007 petition was dismissed without prejudice, while the
disposition of the 2013 petition is not clear from the record.
                              -3-                519222

[b]). The statute further provides that "[e]nforcement of any
agreement prior to the adoption of the child shall be in
accordance with [Family Ct Act § 1055-a (b)]. Subsequent to the
adoption of the child, enforcement of any agreement shall be in
accordance with [Domestic Relations Law § 112-b]" (Social
Services Law § 383-c [2] [b]).

      Here, petitioner alleged – upon information and belief –
that her children had been adopted, and Family Court dismissed
petitioner's application based upon her failure to comply with
the requirements of Domestic Relations Law § 112-b. The record
before us, however, does not reflect that the children have in
fact been adopted; no order to that effect has been provided for
our review and, due to Family Court's sua sponte dismissal of
petitioner's enforcement petition, no answer by respondent was
filed. Hence, it is unclear whether petitioner's application is
governed by Family Ct Act § 1055-a (b) or Domestic Relations Law
§ 112-b.

      Moreover, even assuming that the children indeed have been
adopted and, therefore, the requirements of Domestic Relations
Law § 112-b must be met here, each of the conditional judicial
surrenders executed by, among others, petitioner and approved by
Family Court, contains the following language: "In order for the
condition(s) referenced in this [a]ttachment to be enforceable
after my child is adopted, the court that grants the order of
adoption of the above referenced child must include the
condition(s) in an order at the time my child is adopted. I will
receive a copy of the order." Again, no order to this effect
appears in the record. Absent some indication that petitioner
was in fact provided with the order to which she was entitled
under the terms of the conditional judicial surrenders executed
for each of her children, she cannot be faulted for failing to
establish that the terms and conditions set forth therein were
incorporated into any resulting adoption agreement.

      In light of the foregoing, we find that Family Court abused
its discretion in sua sponte dismissing the enforcement petition.
Accordingly, Family Court's order is reversed, the subject
petition is reinstated and this matter is remitted for, among
other things, further development of the record. If, upon
                              -4-                  519222

remittal, it is determined that the children have in fact been
adopted, then petitioner must be provided with the orders to
which she is entitled under the terms of the conditional judicial
surrenders – following which she may seek leave to amend her
petition in order to comply with the provisions of Domestic
Relations Law § 112-b. Given the length of time that already has
elapsed, we direct that the parties appear before Family Court
within 45 days of the date of this Court's decision, at which
time petitioner should be furnished with any relevant orders to
which she is entitled.

     Garry, J.P., Rose and Lynch, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Otsego County
for further proceedings not inconsistent with this Court's
decision to be held within 45 days of the date of this decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
