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

952
CAF 11-00371
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF JOSE T.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,        MEMORANDUM AND ORDER
PETITIONER-RESPONDENT.
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CHARLES D. HALVORSEN, ATTORNEY FOR THE
CHILD, APPELLANT.


DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, 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 January 6, 2011 in a proceeding pursuant to
Family Court Act article 10-A. The order, among other things, ordered
that the permanency goal for the subject child is placement for
adoption.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part approving the
permanency goal of placement for adoption and modifying the permanency
goal to placement in an alternative planned permanent living
arrangement with the child’s foster parents, 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 Child contends
that Family Court erred in determining that continuing the permanency
goal of placement for adoption for the child is in his best interests.
We agree with the Attorney for the Child that the court’s
determination lacks a sound and substantial basis in the record (see
Matter of Sean S., 85 AD3d 1575; 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 that part approving the
permanency goal of placement for adoption and modifying the permanency
goal to placement in an alternative planned permanent living
arrangement (APPLA) with the child’s foster parents.

     Petitioner met its burden of establishing by a preponderance of
the evidence that its recommendation to modify the permanency goal
from placement for adoption to APPLA was in the child’s best interests
(see generally Sean S., 85 AD3d at 1576; Matter of Michael D., 71 AD3d
                                 -2-                           952
                                                         CAF 11-00371

1017; Matter of Cristella B., 65 AD3d 1037, 1039). At the time of the
permanency hearing, the child was 14 years old. Petitioner submitted
uncontroverted evidence that, despite its diligent efforts to counsel
the child regarding adoption and to find local adoptive resources for
him, the child refused to consent to adoption and wished to remain in
his foster placement (see generally Domestic Relations Law § 111 [1]
[a]). In addition, petitioner submitted evidence indicating that the
child’s placement with his foster parents allowed the child to have
continued contact with his older brother, with whom he is very close,
and to reside in a home in which he was safe and happy. Also, the
child would have access to family and friends who lived in the same
area as his foster parents. Petitioner established that continuing
the permanency goal of placement for adoption may result in removing
the child from the positive environment of his foster placement and
significantly diminishing his contact with family and friends, in
contradiction of the child’s express wishes. Thus, petitioner
established the requisite “compelling reason for determining that it
would not be in the best interests of the child to . . . be . . .
placed for adoption” (Family Ct Act § 1089 [d] [2] [i] [E]).

     Further, the record establishes that the child has a “significant
connection to an adult willing to be a permanency resource for [him],”
which is required for an APPLA placement (id.). Although the child’s
foster parents have not yet signed a permanency pact, they have
unequivocally stated their willingness to serve as an ongoing resource
for the child. The child’s foster parents consider him part of their
family, and petitioner’s caseworker characterized the relationship
between the child and his foster parents as “a significant
connection.” Thus, the record establishes that the child has strong
ties to adults who have agreed “ ‘to be a permanent resource for [him]
for as long as [he] need[s them]’ ” (Sean S., 85 AD3d at 1576).




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
