        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

666
CAF 10-01554
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF SEAN S., JOSEPH S. AND
KALEY S.
------------------------------------------        MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT.
------------------------------------------
CHARLES D. HALVORSEN, ATTORNEY FOR THE
CHILDREN, APPELLANT.


DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), APPELLANT
PRO SE.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered May 20, 2010 in a proceeding pursuant to
Family Court Act article 10-A. The order, among other things,
adjudged that the permanency goal for the subject children is
adoption.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating those parts of the order
modifying the permanency goal for Sean S. and Joseph S. to placement
for adoption and approving the permanency goal of placement in another
planned permanent living arrangement and as modified the order is
affirmed without costs.

     Memorandum: On appeal from an order in this proceeding pursuant
to Family Court Act article 10-A, the Attorney for the Children
contends that Family Court erred in determining that the permanency
goal of placement for adoption for the three subject children, two
brothers and their sister, is in their best interests. We agree with
the Attorney for the Children that the court’s determination with
respect to the two brothers lacks a sound and substantial basis in the
record (see generally Matter of Telsa Z., 74 AD3d 1434; Matter of
Jennifer R., 29 AD3d 1003, 1004-1005). We therefore modify the order
by vacating those parts modifying the permanency goal for the two
brothers to placement for adoption and approving the permanency goal
of placement in another planned permanent living arrangement (APPLA).

     Petitioner met its burden of establishing by a preponderance of
the evidence that its determination to change the permanency goals of
the brothers from adoption to APPLA was in the children’s best
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                                                         CAF 10-01554

interests (see generally Matter of Michael D., 71 AD3d 1017; Matter of
Cristella B., 65 AD3d 1037, 1039). At the time of the permanency
hearing, the brothers were 16 years old and 15 years old,
respectively. Petitioner submitted uncontroverted evidence that both
brothers had adamantly opposed adoption for many years, despite the
substantial efforts of counselors, caseworkers, their foster parent
and an adult sibling to encourage them to consider adoption. Indeed,
the brothers executed adoption waivers after consultation with the
Attorney for the Children. Petitioner’s caseworker for the children
testified that the brothers are very loyal to their birth family,
enjoy a significant connection with their biological siblings and had
recently been reintroduced to their birth mother. In addition, a
psychological evaluation report recommended that petitioner honor the
brothers’ wishes not to be adopted.

     Further, the record establishes that the brothers have a
“significant connection to an adult willing to be a permanency
resource for [them],” as required for an APPLA placement (Family Ct
Act § 1089 [d] [2] [i] [E]). The brothers’ foster parent signed
permanency pacts with each of them, in which he “agree[d] to be a
permanent resource for the boys for as long as they need him.”
Indeed, the foster parent has assisted the brothers with independent
living skills by, inter alia, assigning household chores and helping
them open savings accounts.

     In determining that a permanency goal of placement for adoption
was in the best interests of the brothers, the court adopted the
report and recommendation of the Referee, which appears to be based
largely on the length of the hearing and the absence of the foster
parents and the children from the hearing. With respect to the
brothers, the Referee determined that she “was unable to assess
whether the children or foster parent had changed their positions
because they were not present.” We conclude that, under the
circumstances of this case, the absence of the children from the
hearing was not a rational basis for rejecting the permanency goal of
APPLA where the Referee had sufficient information to determine the
best interests of the children (see generally Veronica S. v Philip
R.S., 70 AD3d 1459, 1460; Matter of Tonjaleah H., 63 AD3d 1611; Matter
of Alyshia M.R., 53 AD3d 1060, 1061-1062, lv denied 11 NY3d 707).
Indeed, the brothers were represented at the hearing by their longtime
Attorney for the Children, the evidence is undisputed that they
opposed adoption and both brothers were nearing the age of majority.

     With respect to the sister, however, the record establishes that
neither petitioner nor the Attorney for the Children requested a
change in the permanency goal at any time during the proceedings in
question. The sister’s permanency hearing report lists both her
current permanency planning goal and anticipated permanency planning
goal as “[p]lacement for [a]doption,” and petitioner’s caseworker
confirmed at the hearing that the sister’s goal had not changed.
Thus, the contention of the Attorney for the Children that the
sister’s permanency goal should be changed to APPLA is not properly
before us inasmuch as it is raised for the first time on appeal (see
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                                                         CAF 10-01554

generally Matter of Shania S., 81 AD3d 1380).




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
