Court Should Not Have Denied Biological Mother’s Petition to Enforce the Visitation Provision in a Surrender Agreement Without Making a Finding Based Upon the Best Interests of the Child—Failure to Make Such a Finding Rendered the Record Insufficient for Review—Matter Sent Back for a Hearing

The Second Department, over a dissent, determined that Family Court should not have denied the biological mother's petition to enforce the provision of a surrender agreement which allowed her to visit the child without a finding that the requested visitation is not in the best interests of the child.  Finding the record inadequate for review, the Second Department sent the matter back for a hearing:

Social Services Law § 383-c(2)(b) permits the parties to a judicial surrender agreement to provide for a biological parent's continued communication or contact with the child. In determining whether to approve the agreement, the court must determine whether continued contact with the biological parent would be in the child's best interests (see Social Services Law § 383-c[2][b]). A provision providing for visitation with the biological parent is not legally enforceable unless the court that approved the surrender agreement states, in a written order, that the provision would be in the child's best interests (see Domestic Relations Law § 112-b[2]; cf. Social Services Law § 383-c[2][b]). Even then, in an enforcement proceeding pursuant to Domestic Relations Law § 112-b, a court “shall not enforce an order under this section unless it finds that the enforcement is in the child's best interests” (Domestic Relations Law § 112-b[4]). In other words, there must be a best interests judicial determination both at the time the surrender agreement is accepted and at the time that enforcement of a visitation provision is sought … . * * *

Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child's best interests. Thus, there is no hearing record for us to review. Further, while it may be true that the Family Court was aware of facts and circumstances that may have supported a determination that enforcement of the visitation provision would not have been in the child's best interests, the record before us does not contain those facts. Accordingly, we are unable to conduct effective appellate review of the court's determination or to make required findings on our own  … . Matter of Jayden A, 2014 NY Slip Op 08637, 2nd Dept 12-10-14