
    In the Matter of Linda S., Appellant, v F. J. Buscaglia, as Commissioner of the Department of Social Services, Respondent.
   — Order unanimously affirmed without costs. Memorandum: Family Court correctly determined that the best interests of the children of petitioner required that the petition for a change of custody be denied and that placement of Jason be extended for a period of 12 months. Petitioner commenced this proceeding seeking the return of her children Jason and Jennifer, whom she had surrendered to the Erie County Department of Social Services after executing a surrender for adoption pursuant to Social Services Law § 384. An evidentiary hearing was conducted following which Family Court determined that on the basis of the best interests test the present placement of Jason and Jennifer should remain undisturbed and Jason’s placement in foster care should be extended for 12 months. The evidence adduced at the hearing, including a psychological evaluation, provided full information upon which to predicate an informed determination.

We note, however, that on the facts of this case and responsive to respondent’s request, Family Court should have conducted an evidentiary hearing pursuant to section 384 (5) to determine whether fraud, duress or coercion had induced the surrender. This threshold inquiry should have preceded a "best interest” hearing. A determination made in such hearing may have been dispositive of the issues raised in the petition. The petitioner, however, was not prejudiced by the court’s failure to hold a section 384 (5) hearing inasmuch as petitioner would only have been entitled to a "best interest” hearing had the fraud and duress issues been resolved in her favor. Such a hearing was in fact conducted.

On the basis of this record the determination dismissing the petition should be sustained. (Appeal from order of Erie County Family Court, Notaro, J. — custody.) Present — Denman, J. P., Green, Balio, Lawton and Davis, JJ.  