SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1044 

CAF 11-00372 

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ. 

 

IN THE MATTER OF LAVALLE W. AND LAVAR W. 

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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT.

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CHARLES D. HALVORSEN, ATTORNEY FOR THE CHILDREN, 

APPELLANT. 

DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, 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 adjudged that the permanency

goal for the subject children 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 for Lavar W. of placement for adoption and modifying

his permanency goal to placement in another planned permanent living

arrangement 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 Children

contends that Family Court erred in determining that continuation of

the permanency goal of placement for adoption for the two subject

children is in their best interests. We agree with the Attorney for

the Children that the court’s determination with respect to Lavar W.

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 for

Lavar of placement for adoption and modifying his permanency goal to

placement in another planned permanent living arrangement (APPLA).

Although the permanency hearing report for Lavar submitted by

petitioner prior to the permanency hearing identified his permanency

goal as placement for adoption, the evidence presented at the hearing

by petitioner and the Attorney for the Children supports a

modification of Lavar’s permanency goal to APPLA (see generally Matter

of Sean S., 85 AD3d at 1575-1576). The Attorney for the Children
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CAF 11-00372 

specifically requested such a modification at the hearing, and

petitioner supports that modification on appeal. Lavar, who was 16

years old at the time of the hearing, testified that he did not want

to be adopted, that he had been pressured into considering adoption in

the past and that he would not consent to adoption in the event that

petitioner found an adoptive home for him. Petitioner’s caseworker

confirmed that Lavar was not interested in adoption. Further, the

record establishes that Lavar has “a significant connection to an

adult willing to be a permanency resource for [him],” which is

required for an APPLA placement (Family Ct Act § 1089 [d] [2] [i]

[E]). At the time of the hearing, Lavar had resided with his foster

parent for over a year, and the foster parent testified that he was

willing to be a permanency resource for Lavar in the event that he did

not wish to be adopted. Lavar testified that he enjoyed his living

situation with his foster parent and that individual’s 17-year-old

son. 

The further contention of the Attorney for the Children that

Lavalle W.’s permanency goal should be modified to APPLA is not

properly before us inasmuch as it is raised for the first time on

appeal (see generally Matter of Shania S., 81 AD3d 1380). The record

establishes that neither petitioner nor the Attorney for the Children

requested a modification of Lavalle’s permanency goal at any time

during the proceedings herein. Lavalle’s permanency hearing report

lists both the current permanency planning goal and anticipated

permanency planning goal as placement for adoption, and petitioner

confirmed at the hearing that Lavalle’s goal had not changed. 

Although the Attorney for the Children requested that Lavar’s goal be

modified to APPLA in light of the testimony of that child, the record

contains no such request on behalf of Lavalle. 

Entered: October 7, 2011 Patricia L. Morgan

Clerk of the Court