Opinion
No. 2994.
March 6, 2008.
Order of disposition, Family Court, New York County (Jody Adams, J.), entered on or about July 18, 2005, after a fact-finding determination of derivative neglect, awarding custody of the subject child to nonparty father, with visitation to respondent mother, unanimously reversed, on the facts, without costs, and the matter remanded for an immediate evidentiary hearing and determination as to whether a change in custody is in the child's best interests.
Patricia W. Jellen, Eastchester, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Alan Beckoff of counsel), for Administration for Children's Services, respondent.
Before: Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.
The appeal, insofar as it involves Family Court's denial of the mother's application pursuant to Family Court Act § 1028 for return of the child pending completion of neglect proceedings, has been rendered moot by the court's subsequent fact-finding determination of neglect ( see Matter of Jabarry W., 24 AD3d 218, 218, lv denied 6 NY3d 711 [2006]). The award of custody to the father does not have a sound and substantial basis in the record ( Bunim v Bunim, 298 NY 391, 393) and is contrary to the totality of the circumstances presented to the court ( see Eschbach v Eschbach, 56 NY2d 167, 172), including the expressed wishes of the then 12-year-old child; agency records showing that the mother had complied with the agency plan and has a warm and loving relationship with the child; the recommendations of the Law Guardian, agency caseworkers and mental health experts; evidence that the father had on occasion interfered with the mother's relationship with the child; and evidence that the child's separation from her siblings was having a harmful effect on her emotional development ( see id. at 173; Bliss v Ach, 56 NY2d 995, 998; Matter of Edwin G. v Patricia E., 209 AD2d 351). However, as the child has lived with the father for over six years, and given little evidence as to the father's fitness as a parent, we remand for an immediate hearing at which evidence, including psychological evaluations of the parents and the residents of their respective homes, can be adduced for the purpose of determining whether a change in custody is in the child's best interests ( see e.g. Matter of Edwin G.).