On May 14, 2014, John M and Jessica V each signed conditional surrenders transferring custody and guardianship of their son, Stephen M, born July 13, 2000, to the Ulster County Department of Social Services. Each surrender was conditioned upon Stephen's adoption by a named individual, Ann S, and upon a schedule of post-adoption contact.

The permanency hearing report dated July 28, 2015, prepared for the permanency hearing scheduled for August 12, 2015, stated that Ms. S was re-considering her decision to adopt Stephen. In a letter to the court received September 25, 2015, Mr. Mernin informed the court that Ms. S was no longer willing to adopt Stephen. The letter stated that Department of Social Services was in the process of preparing a photo-listing for Stephen. The Department reported that they had received one inquiry about Stephen but that individual, upon hearing of Stephen's issues, asked not to be considered as a resource.

The Department filed a petition on November 6, 2015 pursuant to Social Services Law §383-c stating that Ms. S was no longer willing to adopt the child and asking that the court issue a ruling finding that this was not a failure of a material condition of the surrender and that the Department could instead search for an alternate adoptive resource for this child. The parents opposed the Department's proposed relief. The permanency hearing report dated December 17, 2015, prepared for the permanency hearing scheduled for January 6, 2016, stated that not only was Ms. S no longer willing to adopt Stephen, Stephen no longer wished to be adopted by her. Stephen is now over the age of fifteen and his consent is necessary to any adoption. The matter [*2]came on for hearing on January 26, 2016.

Both parents and the child Stephen M were present at trial. The court was asked to take judicial notice of the pleadings and proceedings conducted in this court involving these parties. Stephen's most recent placement with the Department of Social Services resulted from a neglect finding against Ms. V. The surrenders each parent signed on May 14, 2014 contained identical provisions that the surrender was subject to the conditions contained in Attachment A. Attachment A stated:

That my child be adopted by Ann S (Name of adoptive parent(s), who is/are a certified or approved foster parent(s) or has/have been fully investigated and approved as adoptive parent(s). In the event that Ann S is unable for any reason to adopt the child, the Commissioner of the Ulster County Department of Social Services shall select anotheradoptive parent(s) who is/are a certified or approved foster parent(s) or has/have been fully investigated and approved to adopt the child.

Each parent selected the provision in Attachment A that that parent would "receive notice of any substantial failure of a material (important) condition of this surrender before my child is adopted." The conditional surrenders also contained provisions for visits with Stephen twice a year, receipt of a photograph twice a year and receipt of an update regarding his progress twice a year so long as each parent kept the adoptive parent advised of current contact information and assumed responsibility for transporting herself or himself to any visit.

The Department of Social Services called no witnesses on the hearing. John M and Ms. Harris, case manager for Stephen at Andrus,^[FN1] the facility in which Stephen M is placed, testified on behalf of Mr. M. No other witnesses testified. Introduced into evidence as Respondent's Exhibit A was an agreement signed by John M and Ann S at the Department of Social Services on April 21, 2014 in which they agreed that Mr. M would have bi-weekly visits with his son while the adoption was pending. The agreement specifically states "The adoption of Stephen by Ms. S is not contingent upon the terms set forth herein, nor will failure to abide by the terms be grounds to void the adoption." The April 14, 2014 agreement provides more extensive information to be given to Mr. M and more frequent contact between Stephen and his father before the adoption than provided in the conditional surrender for contact after the adoption is finalized. The court rendered a decision from the bench at the conclusion of the hearing but wishes to reduce to writing its findings.

John M testified that he was having visitation regularly with his son immediately prior to signing the conditional judicial surrender. Throughout Stephen's placement, the permanency plan had continued to be return to parent and the Department had been given the authority to work on a trial discharge of the child to his father's residence. However, when Stephen, who had been residing in the home of Ann S, told his father that he wished to be adopted by her, Mr. M then agreed to sign a conditional surrender. Mr. M's address and phone number is the same today [*3]as it was at the time he signed the conditional surrender.

In August, 2014, Mr. M was informed by Ms. Morris of KidsPeace, a foster care program designed for placement of children with emotional or mental health issues, that Stephen had been placed at the Andrus School due to his physical aggression and other behavioral issues in the S home. Mr. M then called Ann S, who confirmed that Stephen was placed at Andrus and that neither she nor Mr. M were permitted to visit with Stephen for at least three months. She said that she would advise Mr. M when Stephen was released or when visits could occur. Mr. M had no further communication with Ms. S.

Mr. M visited with Stephen in December, 2015 at the Andrus facility. He tried to have additional visits but the facility would not schedule a further visit stating that they were bound by the conditional surrender instrument and, based on the calendar year, could not give him a second visit.

Mr. M asks that the court vacate or revoke the conditional surrender. He has a five-bedroom home where Stephen can live, he can offer Stephen a stable home and he has been told that his son wishes to live with him. Mr. M, as Stephen's father, loves his son and wants his son to be part of his family. Mr. M said he would accept any services offered to him and would do whatever DSS asked of him in order to promote Stephen's return to his care. He has already taken two parenting courses.

Ms. Harris testified. She has worked at Andrus for ten years. She has been a case manager there for two years and presently oversees Stephen's case. Ms. Harris observed the December, 2015 visit between Mr. M and Stephen. This was the only visit Mr. M has had with Stephen and the only one he has been permitted to have with Stephen. Ms. V has had two visits: one in July and one in December. Ms. Harris observed their December visit.

The only time Ms. Harris has seen Stephen show emotion or be demonstrative has been during the visit with his father and the visit with his mother. He proudly took his father on a tour of the facility and showed him the things he was involved in. She saw Stephen with his head on his mother's shoulder and saw him animatedly speaking with her. Ms. Harris told the court that there was a clear bond between Stephen and his parents. Stephen will age out of the Andrus facility at the end of this school year ^[FN2] and a new placement will have to be arranged for him. Ms. Harris is aware that Stephen has no other resources and that typically it is difficult to find placements or adoptive resources for teenagers. She unreservedly recommended that his parents be considered as resources for him with services in place to address Stephen's needs as a "spectrum" child and to address his behavioral issues. Ms. Harris stated that she was not permitted to offer either parent any further visitations or contact with Stephen or with the facility for family day activities aside from what was permitted by the conditional surrender, i.e., two visits per year. She wants this changed so that Stephen can have additional and more regular contact with his parents. She also testified that Stephen does not wish to be adopted and wants to be reunited with his parents.

A material condition of the surrenders signed by John M and Jessica V is that Ann S adopt Stephen. While the conditions continue to state in boilerplate language that should she be unable to adopt, the Department of Social Services could find another adoptive resource for this child, the parents signed the surrender under the express condition that Ann S adopt their son. The Third Department decision in Matter of Bentley XX, 121 AD3d 209 (3rd Dept., 2014) explicitly states that failure of the named individual to complete the adoption is the failure of a material condition. Accordingly, Ms. S's unwillingness to pursue the adoption is the failure of a material condition of the surrender.

In Bentley XX, supra, the Third Department also stated that it was reversible error for the Family Court to have granted the Department's request to judicially modify the surrender to achieve a result that was objected to by the biological parent. This court cannot, as the Department suggested, permit the Department to pursue a different adoptive resource over Mr. M's objection or Ms. V's objection.

The parents also reserved the right to have ongoing contact with their son. Mr. M had separately signed an agreement with Ms. S that while Stephen was in the guardianship and custody of the Department, i.e., after Mr. M signed the surrender but before the adoption was completed, Mr. M would continue to have the same contact with his son that he had had while Stephen was in the care and custody of the Department, i.e., while in foster care before the surrender was signed. Under that April 21, 2014 agreement, that contact included alternate weekend visitation, notice and attendance at Stephen's major school events, notification of hospitalization or major injury, and holiday visitation. The parents have continued as resources for Stephen to the extent that they were permitted to have ongoing contact with their son after Stephen's placement at Andrus. Even though they signed surrenders, Stephen's parents preserved their right to have information about Stephen, photographs of him and visits twice a year with him.

The law provides that a child over 14 years of age must consent to his adoption. Stephen no longer consents to be adopted; he wishes to return to his parents. The Department of Social Services can not achieve an adoption for this child or provide a permanent "other" family if he does not consent.

The case manager of the facility in which Stephen has been placed recommends that the plan be "return to parent" as long as services can be put in place to provide support to the family and to Stephen in recognition of his behavioral issues and "spectrum" diagnosis.

The court vacates the conditional surrenders signed by John M and Jessica V due to the failure of a material condition. The permanency plan for Stephen is changed to "return to parent." It can no longer be "freed for adoption" as a second material change has occurred because Stephen does not consent to being adopted and adoption is no longer an appropriate plan and not in this child's best interests. Because the surrenders are terminated, Stephen is no longer in the guardianship and custody of the Department but resumes his status quo ante as in the care and custody of the Department.

This is the decision of this court. The Department shall prepare an order in conformance with this decision within 20 days of the date of this decision, submitted on at least 20 days notice of settlement to counsel.