                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522567
________________________________

In the Matter of LYNN X., an
   Infant.

JOSEPH W.,                                  MEMORANDUM AND ORDER
                    Appellant;

SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent.
________________________________


Calendar Date:   November 22, 2016

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

                             __________


     Alexandra J. Buckley, Clifton Park, for appellant.

      Christopher H. Gardner, County Attorney, Schenectady (Frank
S. Salamone of counsel), for respondent.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Schenectady
County (Powers, J.), entered November 24, 2015, which dismissed
petitioner's application, in a proceeding pursuant to Domestic
Relations Law § 112-b, for enforcement of a postadoption contact
agreement.

      In 2005, petitioner surrendered his rights to his daughter
(born in 2004), who was then adopted by order of Family Court,
Schenectady County (Assini, J.) entered later that year. In
conjunction with the surrender, Family Court apparently approved
a postadoption contact agreement allowing petitioner to have two
visits per year with the child, and this agreement was
                               -2-                522567

incorporated into the order of adoption. In June 2015,
petitioner commenced this proceeding to enforce the postadoption
contact agreement, alleging that he had not had any visitation
with the child since May 2011 and requesting visitation.1
Following several appearances at which the child's adoptive
parents and the attorney for the child opposed the petition and
all contact, Family Court (Powers, J.) dismissed the petition on
the merits, without conducting an evidentiary hearing.
Petitioner appeals.

      As respondent concedes, Family Court erred in dismissing
the petition without an evidentiary hearing.2 Pursuant to
Domestic Relations Law § 112-b (4), birth parents and adoptive
parents may enter into a legally enforceable agreement regarding
postadoption contact that may thereafter be enforced by filing a
petition in Family Court (see Matter of Andie B. [Lee J.–Hope
C.], 102 AD3d 128, 129 [2012]). Enforcement of a postadoption
contact agreement, however, "will only be ordered if it is
determined to be in the child's best interests" (Matter of Andie
B. [Lee J.–Hope C.], 102 AD3d at 129; see Domestic Relations Law
§ 112-b [4]; Matter of Mya V.P. [Amber R.–Laura P.], 79 AD3d
1794, 1796 [2010]), and "[a]n evidentiary hearing is generally
necessary to determine what is in the best interests of the
child" (Matter of Heidi E. [Tresea F.–Phyllis G.], 68 AD3d 1174,
1174-1175 [2009]).




     1
        The postadoption contact agreement is not included in the
record on appeal, and petitioner did not comply with the
requirement that he annex to the petition "a copy of the order
approving the agreement regarding communication or contact"
(Domestic Relations Law § 112-b [4]). The adoption order filed
with this Court, however, contains the visitation provision in
issue and, to this point, it has not been argued that the
adoption order varies in any respect from the agreement between
the parents and petitioner.
     2
        Neither the attorney for the child nor the adoptive
parents have submitted a brief on appeal.
                                -3-                522567

      Here, while there were three appearances in Family Court on
the petition at which the interested parties made factual
representations, primarily through counsel, and legal arguments
on the merits of the petition, no testimony was taken and no
documentary evidence was admitted for consideration.3 The
child's adoptive parents and the attorney for the child opposed
enforcement of the postadoption contact agreement and any contact
between the child and petitioner based upon, among other factors,
an alleged multi-year lapse in contact between petitioner and the
child. The information submitted to the court raised factual
questions regarding whether visits with petitioner would be in
the child's best interests or detrimental to those interests,
necessitating an evidentiary hearing on that determinative issue
(see Domestic Relations Law § 112-b [4]; Matter of Heidi E.
[Tresea F.–Phyllis G.], 68 AD3d at 1174-1175; see also Matter of
Andie B. [Lee J.–Hope C.], 102 AD3d at 129; Matter of Mya V.P.
[Amber R.–Laura P.], 79 AD3d at 1796; see e.g. Matter of Sapphire
W. [Mary W.–Debbie R.], 120 AD3d 1584, 1584-1585 [2014]; Matter
of Kristian J.P. v Jeannette I.C., 87 AD3d 1337, 1337-1338
[2011]). Accordingly, the matter must be remitted to Family
Court for a hearing.

      Further, the adoptive parents are persons whose interests
may be adversely or inequitably affected by an order enforcing
the postadoption contact agreement and, therefore, they should
have been named as parties (see CPLR 1001 [a]; Matter of Colavito
v New York State Comptroller, 130 AD3d 1221, 1222 [2015]; see
e.g. Matter of Heidi E. [Tresea F.–Phyllis G.], 68 AD3d at 1174).
While the adoptive parents were present for and participated in
the proceedings and were represented by counsel, whose appearance
was noted on the record, neither the petition nor Family Court's
order of dismissal named them (or any other person or entity) as
parties or respondents.

        Garry, J.P., Egan Jr., Rose and Mulvey, JJ., concur.


    3
        Although Family Court swore in petitioner and the
adoptive parents at the second and third appearances, none
provided testimony and their attorneys made factual
representations on their behalf.
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      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Schenectady
County for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
