
    In the Matter of Robert P. Howard, Respondent, v Erie County Department of Social Services, Respondent, and Gloria Pointer et al., Appellants.
   Order unanimously reversed, without costs, and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: In this proceeding under article 6 of the Family Court Act petitioner seeks custody of his daughter Lois, who was born on November 30, 1963, and her son Ezera, who was born out of wedlock on October 31, 1978. Both children were voluntarily placed with the respondent Erie County Department of Social Services. Lois’ placement terminated on July 3, 1980. Family Court granted custody of Lois to petitioner but made no direction concerning the custody of Ezera. Gloria Pointer, mother of Lois and divorced wife of petitioner, is designated as an appellant along with Lois on this appeal, but is not a party to the proceeding. Neighborhood Legal Services, Inc., submitted a brief and argued the issues before this court on behalf of appellants. No brief was submitted by the Erie County Department of Social Services, which advised the court in writing of its agreement with appellant’s position; by the Law Guardian, who advised the court that the Family Court order was inconsistent with the best interest of both Ezera and Lois; or by petitioner, whose attorney advised that he no longer represents the petitioner, “who does not wish to pursue this action” and that he would submit a stipulation of discontinuance if so advised. The record discloses that Family Court relied in part on a finding of custody in a separate proceeding before a different Family Court Judge in determining petitioner’s parental fitness and that the evidence was insufficient to permit a determination that the award of custody to petitioner was in the welfare and best interest of Lois. The posture of this appeal and our scrutiny of the record mandates that the order of Family Court be reversed and the matter be remitted for a hearing de novo with all necessary parties before the court. (Appeal from order of Erie County Family Court — custody.) Present — Cardamone, J. P., Simons, Callahan, Denman and Schnepp, JJ.  