I respectfully dissent.
On December 5, 1978, the petitioner entered into a voluntary placement agreement with the custodian of the child which provided for the temporary transfer of the care and custody of her stepgrandson to petitioner for 18 months. Petitioner sought court approval of the transfer agreement on January 8, 1979. After a hearing, the court ordered that the agreement incorporate the directions of a summary decision which included the following condition: "In no event should the child be returned to the care of * * * [the custodian] without the concurrence of the Law Guardian.”
*147Petitioner correctly contends that the Family Court exceeded its authority in conditioning the return of a dependent child in foster care, who has been surrendered pursuant to a voluntary placement agreement, on the concurrence of its Law Guardian. Subdivision (3) of section 358-a of the Social Services Law states as follows: "Disposition of petition. If the judge is satisfied that the parent, parents, or guardian executed such instrument knowingly and voluntarily and because he or they would be unable to make adequate provision for the care, maintenance and supervision of such child in his or their home, and that the requirements of section three hundred eighty-four-a, if applicable, have been satisfied, he may find and determine that the best interest and welfare of the child would be promoted by removal of the child from such home, and that it would be contrary to the welfare of such child for him to continue in such a home, and he shall thereupon grant the petition and approve such instrument and the transfer of the custody and guardianship or care and custody of such child to such social services official or the placement of the child with the division for youth in accordance therewith”.
Subdivision (7) of section 358-a provides for the return of a dependent child in foster care as follows: "Return of child. If an instrument provides for the return of the care and custody of a child by the social services official * * * to the parent, parents or guardian upon any terms and conditions or at any time, the social services official * * * shall comply with such terms of such instrument without further court order. Every order approving an instrument providing for the transfer of the care and custody of a child to a social services official * * * shall be served upon the parent, parents or guardian who executed such instrument in such manner as the family court judge may provide in such order, together with a notice of the terms and conditions under which the care and custody of such a child may be returned to the parent, parents or guardian. If an instrument provides for the return of the care and custody of a child by social services official * * * to the parent, parents or guardian without fixing a definite date for such return, or if the social services official * * * shall fail to return a child to the care and custody of his parent, parents or guardian in accordance with the terms of the instrument, the parent, parents or guardian may seek such care and custody by petition for return of such child and order to show *148cause in such proceeding or by writ of habeas corpus in the supreme court.”
The Family Court has the continuing power to review and pass on the extension of foster care pursuant to section 392 of the Social Services Law. To condition the return of a child in foster care on the concurrence of a Law Guardian is in derogation of Family Court’s final authority in the matter (Matter of Kurtis v Ballou, 33 AD2d 1034). The custody of an infant may not be controlled by the judgment of a Law Guardian no matter how ideally motivated he may be. The responsibility for determining what course aids a child’s welfare is solely and independently the duty of the court in the exercise of its vast powers to deal with the custody of infant children. The court order also improvidently imposes restrictions on the social services district which were not incorporated in the statutory scheme of the Social Services Law by the Legislature. The social services district is the agency responsible for providing aid to dependent children. This includes providing all services which may be necessary for each child (see Social Services Law, § 344). Primary responsibility for providing care and supervision over a voluntary transfer is the responsibility of the petitioner. The order of the court violates this legislative grant of power to the petitioners. The order should be modified by deleting therefrom the fifth decretal paragraph.