SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

952 

CAF 11-00371 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ. 

 

IN THE MATTER OF JOSE T. 

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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 

CHILD, APPELLANT. 

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, 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, among other things, ordered

that the permanency goal for the subject child 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 of placement for adoption and modifying the permanency

goal to placement in an alternative planned permanent living

arrangement with the child’s foster parents, 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 Child contends

that Family Court erred in determining that continuing the permanency

goal of placement for adoption for the child is in his best interests. 

We agree with the Attorney for the Child that the court’s

determination 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 of placement for adoption and modifying the permanency

goal to placement in an alternative planned permanent living

arrangement (APPLA) with the child’s foster parents.

Petitioner met its burden of establishing by a preponderance of

the evidence that its recommendation to modify the permanency goal

from placement for adoption to APPLA was in the child’s best interests

(see generally Sean S., 85 AD3d at 1576; Matter of Michael D., 71 AD3d
-2- 952 

CAF 11-00371 

1017; Matter of Cristella B., 65 AD3d 1037, 1039). At the time of the

permanency hearing, the child was 14 years old. Petitioner submitted

uncontroverted evidence that, despite its diligent efforts to counsel

the child regarding adoption and to find local adoptive resources for

him, the child refused to consent to adoption and wished to remain in

his foster placement (see generally Domestic Relations Law § 111 [1]

[a]). In addition, petitioner submitted evidence indicating that the

child’s placement with his foster parents allowed the child to have

continued contact with his older brother, with whom he is very close,

and to reside in a home in which he was safe and happy. Also, the

child would have access to family and friends who lived in the same

area as his foster parents. Petitioner established that continuing

the permanency goal of placement for adoption may result in removing

the child from the positive environment of his foster placement and

significantly diminishing his contact with family and friends, in

contradiction of the child’s express wishes. Thus, petitioner

established the requisite “compelling reason for determining that it

would not be in the best interests of the child to . . . be . . .

placed for adoption” (Family Ct Act § 1089 [d] [2] [i] [E]).

Further, the record establishes that the child has a “significant

connection to an adult willing to be a permanency resource for [him],”

which is required for an APPLA placement (id.). Although the child’s

foster parents have not yet signed a permanency pact, they have

unequivocally stated their willingness to serve as an ongoing resource

for the child. The child’s foster parents consider him part of their

family, and petitioner’s caseworker characterized the relationship

between the child and his foster parents as “a significant

connection.” Thus, the record establishes that the child has strong

ties to adults who have agreed “ ‘to be a permanent resource for [him]

for as long as [he] need[s them]’ ” (Sean S., 85 AD3d at 1576).

Entered: September 30, 2011 Patricia L. Morgan

Clerk of the Court