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

307
CAF 10-00765
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


IN THE MATTER OF TUMARIO B., JR.
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ONONDAGA COUNTY DEPARTMENT OF SOCIAL SERVICES,   MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

VALERIE L., RESPONDENT-APPELLANT.


KELLY M. CORBETT, FAYETTEVILLE, FOR RESPONDENT-APPELLANT.

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (MARY FAHEY OF COUNSEL),
FOR PETITIONER-RESPONDENT.

THEODORE W. STENUF, ATTORNEY FOR THE CHILD, MINOA, FOR TUMARIO B., JR.


     Appeal from an order of the Family Court, Onondaga County (Martha
E. Mulroy, J.), entered March 30, 2010 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things,
terminated respondent’s parental rights.

     It is hereby ORDERED that the order so appealed from is
unanimously modified in the interest of justice by remitting the
matter to Family Court, Onondaga County, for further proceedings in
accordance with the memorandum and as modified the order is affirmed
without costs.

     Memorandum: Respondent mother appeals from an order terminating
her parental rights with respect to her son based on a finding of
permanent neglect and granting custody and guardianship of the child
to petitioner. We reject the mother’s contention that Family Court
abused its discretion in refusing to enter a suspended judgment (see
Matter of Elijah D., 74 AD3d 1846). The record supports the court’s
determination that the best interests of the child would be served by
freeing the child for adoption by the foster parents, who have cared
for the child since birth (see Matter of Shirley A.S., 81 AD3d 1471).
“Freeing the child for adoption provided him with prospects for
permanency and some sense of the stability he deserved, rather than
the perpetual limbo caused by unfulfilled hopes of returning to [the
mother’s] care” (Matter of Raine QQ., 51 AD3d 1106, 1107, lv denied 10
NY3d 717; see Matter of Mikia H., 78 AD3d 1575, lv dismissed in part
and denied in part 16 NY3d 760).

     We conclude, however, that the matter should be remitted for the
court to determine, following a further hearing if necessary, whether
post-termination visitation between the mother and child would be in
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                                                         CAF 10-00765

the child’s best interests (see Matter of Seth M., 66 AD3d 1448, lv
denied 13 NY3d 922; Matter of Josh M., 61 AD3d 1366; Matter of Bert
M., 50 AD3d 1509, 1511, lv denied 11 NY3d 704). Although the mother
raises this issue for the first time on appeal, we nevertheless
address it in the interest of justice. We note that the adoptive
parents appear to support such visitation, as does the Attorney for
the Child. In fact, the adoptive parents currently arrange for
regular visits between the mother and one of her daughters, who was
also adopted by them, and thus it may be in the best interests of the
subject child to participate in those visits as well.




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