Matter of Kenneth S. (Bethzaida P.)

Matter of Kenneth S. (Bethzaida P.) 2014 NY Slip Op 02056 Decided on March 26, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
HECTOR D. LASALLE, JJ.
2011-11255
(Docket Nos. N-18643-04, 18644-04)

[*1]In the Matter of Kenneth S. (Anonymous). Administration for Children's Services, petitioner- respondent;

and

Bethzaida P. (Anonymous), appellant; Kenneth S. (Anonymous), respondent-respondent. (Proceeding No. 1)



In the Matter of Alan S. (Anonymous). Administration for Children's Services, petitioner- respondent;

and

Bethzaida P. (Anonymous), appellant; Kenneth S. (Anonymous), respondent-respondent. (Proceeding No. 2)




Mark Diamond, New York, N.Y., for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y.
(Kristin M. Helmers and Victoria Scalzo of
counsel), for petitioner-respondent.
Frank M. Galchus, Fresh Meadows, N.Y., for respondent-
respondent.
Marc E. Strauss, Jamaica, N.Y., attorney for the children.


DECISION & ORDER

In two related child neglect proceedings pursuant to Family Court Act article 10, the mother appeals from an order of the Family Court, Queens County (Anixiadis, Ct. Atty. Ref.), dated October 28, 2011, which denied her motion pursuant to Family Court Act § 1061 to vacate a "final order of custody" of the same court dated October 15, 2010.

ORDERED that the order dated October 28, 2011, is reversed, on the law, without costs or disbursements, the motion to vacate the "final order of custody" dated October 15, 2010, is granted, and the matter is remitted to the Family Court, Queens County, for further proceedings in accordance herewith; and it is further,

ORDERED that pending final determination of this matter, the subject children shall remain with Kenneth S.

As the mother argues, and as the Administration for Children's Services correctly concedes, the "final order of custody," awarding custody of the subject children to the father, who did not petition for custody, was an unauthorized disposition of the neglect proceedings commenced [*2]pursuant to Family Court Act article 10 (see Family Ct Act §§ 1052, 1061). Thus, the Family Court erred in denying the mother's motion to vacate that order, and the matter must be remitted to the Family Court, Queens County, for further proceedings which, under the circumstances of this case, should include a dispositional hearing and determination thereafter of the neglect proceedings and, if custody petitions are filed, hearings relating to those petitions (see Matter of Tristram K., 25 AD3d 222; Matter of Diaz v Santiago, 8 AD3d 562).

Additionally, under the facts of this case, pending final determination of this matter, the children shall remain in the custody of the father.

In light of our determination, we need not reach the mother's remaining contentions.
BALKIN, J.P., SGROI, COHEN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court