Sunshine Allah Y., Matter of

• Decision Date: 24 May 1982
• Citation: 450 N.Y.S.2d 520,88 A.D.2d 662
• Parties: In the Matter of SUNSHINE ALLAH Y. (Anonymous). COMMISSIONER OF SOCIAL SERVICES, WESTCHESTER COUNTY, Petitioner-Appellant; ISETTA Y. (Anonymous), Respondent; Andrew H. Vachss, Law Guardian-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 520

450 N.Y.S.2d 520

88 A.D.2d 662

In the Matter of SUNSHINE ALLAH Y. (Anonymous).

COMMISSIONER OF SOCIAL SERVICES, WESTCHESTER COUNTY,

Petitioner-Appellant;

ISETTA Y. (Anonymous), Respondent;

Andrew H. Vachss, Law Guardian-Appellant.

Supreme Court, Appellate Division,

Second Department.

May 24, 1982.

Andrew H. Vachss, pro se.

Samuel S. Yasgur, County Atty., White Plains (Denise J. D'Ambrosio and Lester D. Steinman, White Plains, of counsel), for petitioner-appellant.

Herbert K. Pillersdorf, Brooklyn, for respondent.

Before GIBBONS, J. P., and THOMPSON, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 10 of the Family Court Act to extend the placement of an abused and neglected child, the Law Guardian and the Commissioner of the Westchester County Department of Social Services appeal from an order of the Family Court, Westchester County, dated December 29, 1981, which denied the petition to extend placement of the child in a foster care home, and directed the return of the child to his mother.

Order affirmed, without costs or disbursements.

We find that the denial of the petition was in the best interests of the child and, thus, was a proper exercise of the court's discretion. We note, initially, that contrary to the specific statutory mandate of section 1052 (subd. ) of the Family Court Act, the Family Court failed to set forth the grounds for denying the petition. Notwithstanding the court's failure to satisfy its obligation, we need not remand the matter to the Family Court since our own examination of the record reveals that the evidence is insufficient to support a conclusion that the child's mother (the respondent) will neglect her child and is sufficient to support the order under review (see Matter of Jose L. I., 46 N.Y.2d 1024, 416 N.Y.S.2d 537, 389 N.E.2d 1059).

The appellant Commissioner has the burden of showing the mother's present inability to care for her child and that continued placement in a foster home would be in the child's best interests (see Matter of Kenneth G., 39 A.D.2d 709, 331 N.Y.S.2d 788). The Family Court may not extend placement of a neglected child unless such a showing is made (Matter of Yolanda C., 74 Misc.2d 884, 886, 346 N.Y.S.2d 690). While we acknowledge the uncontradicted testimony that the child is well-provided for by his foster family, there is no substantive evidence on the record indicating that the mother will not care for the child. She herself did not inflict the physical abuse upon the child which caused him to be placed in the foster home, and she was not adjudged guilty of abuse. The original adjudication of...