PRESENT: SCUDDER, P. J., HURLBUTT, MARTOCHE, SMITH, AND LUNN, JJ.

CAF 08-00174
Docket Nos: B-00722-07, B-00721-07

MATTER OF DENNIS K. A., III, JANET A. WYOMING COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; DENNIS A., JR., RESPONDENT-APPELLANT.

An appeal having been taken to this Court from an order of the Family Court , Wyoming, entered in the Office of the Clerk of said Court on December 24, 2007, and counsel having moved to be relieved of assignment,

Now, upon reading and filing the affirmation of Paloma A. Capanna, Esq., dated June 26, 2008, the notice of motion with proof of service thereof, the brief filed by counsel on behalf of appellant, together with the record on appeal, the affirmation of Jane E. Monaghan, Esq., dated July 24, 2008, the affirmation of Teresa Kowalczyk, Esq., dated July 30, 2008, and due deliberation having been had thereon,

It is hereby ORDERED that the case is held, decision is reserved, the motion to relieve counsel of assignment is granted and new counsel is to be assigned.

Memorandum: Respondent appeals from an order that terminated his parental rights upon a finding that he had been abandoned the subject children (see Social Services Law § 384-b [4] [b]). Respondent's assigned appellate counsel has moved to be relieved of the assignment, and has submitted an affidavit in which she concludes that there are no nonfrivolous  issues meriting this Court's consideration (see Matter of Jordan S., 179 AD2d 1091). Because the petitions allege only that the children were permanently neglected (see Social Services Law § 384-b [4] [d]), we conclude that a nonfrivolous issue exists as to whether Family Court's determination violated father's right to due process. Therefore, we relieve counsel of her assignment and assign new counsel to brief this issue, as well as any other issues that counsel's review of the record may disclose.

Entered: October 3, 2008

JoAnn M. Wahl, Clerk