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

355
CAF 10-00441
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF RONALD WASHINGTON,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ERIE COUNTY CHILDREN’S SERVICES,
RESPONDENT-RESPONDENT.


ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.

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

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR DEVON J.


     Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered January 20, 2010 in a proceeding pursuant to
Family Court Act article 6. The order denied the petition for custody
and freed the child for adoption.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating those parts of the order
denying the custody petition, determining that petitioner is a “notice
father” and freeing the child for adoption, and as modified the order
is affirmed without costs, and the matter is remitted to Family Court,
Erie County, for further proceedings on the custody petition before a
different judge in accordance with the following Memorandum:
Petitioner is the biological father of a child who was the subject of
a permanent neglect petition filed against the child’s mother.
Following a series of delays related to providing the father with
notice that he may be the father of the child, who was in foster care,
he was adjudicated the child’s father. The father thereafter
commenced this proceeding pursuant to article 6 of the Family Court
Act seeking custody of the child. Family Court heard testimony with
respect to the father’s custody petition following the dispositional
hearing in the permanent neglect proceeding against the mother. In
its order, which addressed both the permanent neglect proceeding
against the mother and the custody proceeding, the court stated that
the father’s “[p]etition for custody is hereby denied[] [inasmuch as
the c]ourt does not find it in the best interest[s] of the child to be
removed from the only home he has ever known and placed with a Notice
Father with whom he has had limited and superficial contact . . . .”
With respect to the custody proceeding between the father and a third
party, i.e., Erie County Children’s Services, we note that the court
                                 -2-                           355
                                                         CAF 10-00441

failed to make the requisite findings of extraordinary circumstances
before determining the best interests of the child (see generally
Matter of Ricky Ralph M., 56 NY2d 77, 80; Matter of Bennett v
Jeffreys, 40 NY2d 543, 548). Instead, despite its reference to the
custody petition, the court treated the custody matter between the
father and respondent as though it had before it only the permanent
neglect petition with respect to the mother. Indeed, the court
addressed the best interests of the child in the context of the
permanent neglect proceeding against the mother by freeing the child
for adoption (see generally Family Ct Act §§ 631, 634). That was
error. We further conclude that, by determining that the father was a
“notice father” and thus that his consent is not required for the
adoption of the child (see Domestic Relations Law § 111 [1] [d]), the
court thereby deprived the father of his parental rights without due
process (see Matter of Jaleel F., 63 AD3d 1539, 1540-1541). Although
there was reference to the father as a “notice father” during the
proceedings, that reference was correct only in the context of the
permanent neglect proceeding against the mother inasmuch as he was
entitled to notice of that proceeding (see Social Services Law § 384-c
[2] [a]). The issue whether the father’s consent is required before
the child may be adopted was not before the court. “ ‘[A] parent’s
interest in the accuracy and justice of the decision to terminate his
or her parental status is . . . a commanding one’ and may not be
accomplished without stern adherence to the dictates of due process”
(Ricky Ralph M., 56 NY2d at 81, quoting Lassiter v Department of
Social Servs. of Durham County, N.C., 452 US 18, 27).

     We therefore modify the order accordingly, and we remit the
matter to Family Court for further proceedings on the custody petition
before a different judge following a de novo hearing, if necessary.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
