Opinion
2012-01-31
In the Matter of LILIANA G.Erie County Department of Social Services, Petitioner–Respondent;Orena G., Respondent–Appellant. (Appeal No. 2.)
David J. Pajak, Alden, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David J. Pajak, Alden, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Liliana G.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
In appeal No. 1 in this permanent neglect proceeding with respect to respondent mother's youngest child, the mother appeals from an order granting petitioner's motion for summary judgment on the petition and determining that the mother derivatively neglected the child. In appeal No. 2, the mother appeals from an order granting petitioner's motion for a determination that reasonable efforts to reunite the mother and the child are no longer required.
We conclude at the outset that appeal No. 1 must be dismissed. Family Court Act § 1113 provides in relevant part that such an appeal “must be taken no later than ... [35] days from the mailing of the order to the appellant by the clerk of the court....” The record establishes that Family Court mailed the order appealed from with notice of entry to the mother and her attorney on the date of entry ( cf. Matter of Tynell S., 43 A.D.3d 1171, 1172, 842 N.Y.S.2d 90). The notice of appeal, however, was not filed until more than three months later, and thus it is untimely ( see § 1113; Matter of Deandre GG., 79 A.D.3d 1384, 912 N.Y.S.2d 801, lv. denied 16 N.Y.3d 708, 2011 WL 1161017; see also Matter of Jennifer G., 190 A.D.2d 1095, 593 N.Y.S.2d 711).
With respect to the order in appeal No. 2, we agree with the mother that the court erred in determining that petitioner was no longer required to use reasonable efforts to reunite the mother and the child. In its motion for such relief, petitioner alleged that the mother's parental rights with respect to two of her other children had been involuntarily terminated ( see Family Ct. Act § 1039–b [b][6] ). Although there is nothing in the record before us establishing that such an involuntary termination took place, the record indicates that the court examined its records in the proceeding involving those two other children ( see Matter of Gerald G., 91 A.D.3d 1320, –––N.Y.S.2d –––– [2012] ). Consequently, we take judicial notice of our records in that case with respect to the appeal from the order terminating the mother's parental rights with respect to those children ( see Matter of Allen v. Strough, 301 A.D.2d 11, 18–19, 752 N.Y.S.2d 339; see also Matter of A.R., 309 A.D.2d 1153, 764 N.Y.S.2d 746). Our records establish that the mother's parental rights with respect to those children had been involuntarily terminated.
Pursuant to Family Court Act § 1039–b (b), where the parent's parental rights with respect to siblings of the subject child have been involuntarily terminated, the petitioner is not required to use reasonable efforts to reunite the parent and child “unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future.” Further, “[a]lthough the statute does not specifically direct that an evidentiary hearing be held, we conclude that the constitutional due process rights of [the] respondent require such a hearing when genuine issues of fact are created by the answering papers” ( Matter of Damion D., 42 A.D.3d 715, 716, 839 N.Y.S.2d 852; see generally Matter of Marino S., 100 N.Y.2d 361, 371, 763 N.Y.S.2d 796, 795 N.E.2d 21, cert. denied 540 U.S. 1059, 124 S.Ct. 834, 157 L.Ed.2d 714). Here, the mother's answering papers state that a caseworker for Child Protective Services testified at a remand hearing that the child could safely be returned to the mother, and the transcript of that testimony is included in the record. In addition, when granting petitioner's motion for summary judgment on the neglect petition, the court indicated that it wished to conduct a dispositional hearing to ascertain the progress of the mother and “what she's been doing with respect to [the] child.” No such hearing was held, however, and the record contains no further evidence with respect to the issues raised by the mother's answering papers. Inasmuch as the record establishes that there was a genuine issue of fact whether using reasonable efforts to reunite the mother and the child was in the child's best interests, we conclude that the court should have held a hearing before deciding petitioner's motion for a determination with respect to the reasonable efforts requirement ( cf. Matter of Carlos R., 63 A.D.3d 1243, 1245, 879 N.Y.S.2d 829, lv. denied 13 N.Y.3d 704, 2009 WL 2871142). We therefore reverse the order in appeal No. 2, and we remit the matter to Family Court for further proceedings.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for further proceedings.