In re the Guardianship & Custody of Sylvia M.

Motion for reargument of the Attorney-General granted to the following extent: The order of this court, dated July 23, 1981 [82 AD2d 217], is recalled and republished as follows: Order of Family Court, New York County (Fogarty, J.), entered May 15, 1980, which dismissed the petition of Cardinal McCloskey School and Home for an order pursuant to section 384-b (subd 4, par [c]; subd 6, par [a]) of the Social Services Law terminating the parental rights of respondent Manuela M. as to her children Sylvia M. and Alicia M., should be modified, on the law, so as to grant the petition to the extent of terminating the parental rights of Manuela M. and awarding guardianship and custody of the children to the petitioner agency; vacate so much of the order as found section 384-b (subd 3, par [a]; subd 4, par [c]; subd 6, par [a]) of the Social Services Law unconstitutional; and substituting therefor a finding that section 384-b (subd 4, par [c]; subd 6, par [a]) of the Social Services Law is *926constitutional; and the order is otherwise affirmed. The substantive modification of this court’s prior order concerns the vacatur of the Family Court’s invalidation of section 384-b (subd 3, par [a]) of the Social Services Law on the basis that it “required” guardianship of a child to revert to the agency if the foster parents failed to institute proceedings for adoption within six months of an order granting the child’s guardianship to the foster parents and that this provision constituted “an unconstitutional intrusion on the parent-child relationship depriving both parent and child of their fundamental rights.” (104 Mise 2d 357, 365.) This issue was not properly before the Family Court as the subject children had not been committed to the guardianship and custody of the foster parents. Thus, without passing on the merits of the Family Court’s interpretation of the statute or its evaluation of the constitutionality thereof, we strike the Family Court’s finding that this section is unconstitutional. Concur — Murphy, P. J., Birns, Sandler, Bloom and Fein, JJ