Opinion
Argued February 19, 1981
Decided February 26, 1981
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, J. GEORGE FOLLETT, J.
Robert J. Sassone for appellant.
Terrence J. Whelan and Ethan K. Phillips for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the permanent neglect petitions dismissed.
Appellant mother voluntarily placed her two children with the St. Lawrence County Department of Social Services on January 9, 1976. On May 23, 1977 the department filed permanent neglect petitions with Family Court alleging that, notwithstanding the efforts of the county department, appellant had failed for a period of more than one year following that placement substantially and continuously or repeatedly to maintain contact with and plan for the future of her daughters (Social Services Law, § 384-b, subd 4, par [d]).
Family Court determined that the daughters were permanently neglected children on the ground that appellant had failed for the prescribed period to plan for the future of her children, and this determination was affirmed by a majority at the Appellate Division. We now vacate that determination as a matter of law.
The record discloses the following undisputed facts. Appellant participated in conferences with her caseworker related at least in part to future plans for her daughters on March 9, July 13, September 30 and December 1, 1976, and on January 6 and January 13, 1977. On May 5, 1976 appellant's caseworker prepared a detailed "service plan" designed to reunite appellant and her daughters. This plan was sent to appellant and discussed with her by a caseworker from the Orange County Social Services Department in early July, 1976. On July 13, 1976 when appellant was back in St. Lawrence County she discussed the plan with her St. Lawrence County caseworker, and an amended treatment plan was designed which she then accepted. In view of these uncontested facts, the record is insufficient as a matter of law to sustain the statutory determination made by Family Court and accepted at the Appellate Division.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, without costs, and petitions dismissed in a memorandum.