In re Burns , 412 N.Y.S.2d 1 ( 1978 )

Orders of the Family Court, New York County, entered September 13, 1978, permitting the New York City Department of Social Services to withdraw petitions seeking to review the foster care status of the three infant children of the respondent, and directing that said children be discharged from foster care and returned to the home of the biological mother, the respondent, unanimously reversed, on the law and the facts, without costs and without disbursements, and the petitions reinstated, and the matter remanded for further proceedings. The children being in foster care either because of a finding of neglect or by voluntary placement by the biological mother who is unmarried, a written demand was made by her for the return of the children, and they were conditionally discharged in her care. Thereafter, petitions were filed to return the three children to foster care in view of the mother’s personal problems and the danger to the children. A Law Guardian was appointed for the children, but the said Law Guardian was temporarily absent, when the court granted withdrawal of the review petitions. Under the circumstances, and in view of the necessity to safeguard the best interest of the children, the proceedings should not have been terminated in the absence of the appointed Law Guardian. (See Matter of Orlando F., 40 NY2d 103.) Further, the decision granting the withdrawal did not have any testimonial basis, and there should have been an opportunity for evidence on the question of what would be in the best interest of the children. (Matter of Bennett v Jeffreys, 40 NY2d 543.) Concur-Kupferman, J. P., Birns, Silver-man, Markewich and Sandler, JJ.