In Matter of Evelyse Luz S. (62 AD3d 595, 597, 879 NYS2d 438 [1st Dept 2009]) the First Department concluded that the Family Court, in a dispositional hearing in a termination of parental rights proceeding, must hold a best interests hearing and consider all evidence before making a determination as to the adoption of the child.

The appellate court reversed the Family Court's finding that a child who was freed for adoption should be adopted by her foster mother.

The appellate court remanded the case to the Family Court for consideration of the paternal grandmother, as well as the foster mother, as an adoptive resource.

The First Department ordered the Family Court to hold a new dispositional hearing to consider independent expert evidence on the psychological best interests of the child in order to determine whether it was in the child's best interests to be adopted by her foster mother or by her grandmother.

The First Department concluded that the Family Court failed to fully consider "whether any short-term 'trauma' is outweighed by the potential long-term benefit of the child remaining with her grandmother" (id.).

The appellate court stated:

"Furthermore, although it is understandable that following placement in foster care, the child, who is young, became bonded to the foster mother, who admittedly took good care of her and tended to her special needs, this does not undermine the fact that the child has biological relatives, who are capable of caring for her and have consistently expressed a desire that she remain in the grandmother's care" (id. at 596).