(dissenting and voting to reverse the order dated October 12, 2005, and remit the matter to the Family Court, Suffolk County, for further proceedings): Bryant M. is the father of Destiny O. The issue presented by this appeal is whether Bryant’s petition in proceeding No. 2 (hereinafter Bryant’s petition or the petition) for custody of or visitation with Destiny was properly dismissed. My colleagues conclude that the Family Court had before it enough information to determine Bryant’s petition. As I see it, however, the one minute that Bryant spent before the Family Court was not sufficient to give the petition the serious consideration that it requires. I therefore dissent, respectfully.
Bryant submitted his petition on September 20, 2005. He was incarcerated at the time. The petition alleges, in addition to Bryant’s paternity, only that Destiny was born on April 12, 2004, that the respondent Kelly O., who is Destiny’s mother, obtained custody of Destiny approximately one year prior to the filing of the petition, that an order of protection against Bryant had been “annulled” since February 14, 2005, and that Bryant was requesting custody of Destiny, as well as visitation with her until his incarceration was concluded.
Bryant’s petition in the custody proceeding was returnable in the Family Court, Suffolk County, on October 7, 2005. On the same day, the Family Court was scheduled to begin a trial in a proceeding to terminate Kelly’s parental rights. The minutes of the proceedings on that day reflect that the two proceedings were called at the same time, but that the petition with respect to Kelly was heard first because Bryant had not yet been produced from jail. Rather than proceed to trial, however, Kelly submitted a judicial surrender petition and thus agreed to sur*954render Destiny to the custody of the Suffolk County Department of Social Services (hereinafter the DSS). The DSS then orally moved to withdraw its petition for the termination of Kelly’s parental rights, and the Family Court granted the oral motion. After a short colloquy, in which Kelly admitted that Bryant was Destiny’s father, and the Family Court acknowledged that paternity testing had established that fact with 99% certainty, the Family Court accepted Kelly’s surrender at 9:34 A.M.
Bryant was brought into the courtroom at 11:04 a.m. The Family Court advised him that he had “a right to be heard on the best interest of the child consistent with the permanency plan,” and that he had a right to counsel with respect to the petition. In response to that advice, Bryant requested that an attorney be appointed for him. The Family Court appointed Richard Gold as Bryant’s counsel. Bryant left the courtroom with Gold one minute later. The transcript does not reflect their return. At 11:52 a.m., however, the Family Court noted that the first permanency hearing would be held on October 31, 2005 and the proceedings were concluded.
The record with which we have been presented by the Family Court on this appeal does not contain minutes from any other proceeding at which Bryant was present or any evidence or argument that was presented with respect to this matter. The only other minutes in the record are minutes of proceedings held on October 12, 2005, which reflect only the Family Court’s statement that a decision had been rendered with respect to Bryant’s petition, and that the proceeding was dismissed.
The decision to which the Family Court referred is dated October 12, 2005. It recites the fact that Bryant is Destiny’s father, as was established in the proceedings on October 7, 2005. The decision further reflects the Family Court’s determination, made “[a]fter hearing testimony and reviewing all the relevant petitions,” that Bryant “summarily asserts that it would be in Destiny’s best interest to live with his mother, the paternal grandmother, and aunt,” that “[t]he County vehemently oppose^] the application and asserts that [Bryant] has had no contact with the child,” that “DSS had offered visits to [Bryant] with Destiny, but he never took advantage of such offer,” that “Destiny is presently living in a pre-adoptive foster home with her half-sibling, Jordan, who has already been adopted by the family,” and that “[t]he permanency plan for Destiny is [for her] to be adopted.” None of these “facts,” however, appear in the petitions in either of the proceedings before us and there is no mention, at least in the record that is before us, of any *955answer that was submitted or any testimony or other evidence that was adduced at a hearing. On the basis of these “facts,” the Family Court dismissed Bryant’s petition, concluding that Bryant’s request for custody would not be consistent with the permanency plan for Destiny, and that it was in Destiny’s best interest to continue in foster care on a course toward adoption.
In my view, the absence of any record of the hearing to which the Family Court referred, and the lack of any evidence in the record to support the facts upon which the Family Court’s determination was based, preclude our affirmance of the Family Court’s order. “A biological parent has a right to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit to assume the duties and privileges of parenthood, even though the State perhaps could find ‘better’ parents” (Matter of Michael B., 80 NY2d 299, 309 [1992]). The fact that Bryant was incarcerated at the time he submitted his custody petition, while relevant, does not in itself foreclose the possibility that awarding him custody may nevertheless be in Destiny’s best interest, if not now, then in the future (see Matter of Gregory B., 74 NY2d 77, 88-89 [1989]; Matter of Depuy-Wade v Wade, 298 AD2d 655 [2002]; Matter of Latasha F., 251 AD2d 1005, 1006 [1998]).
It may be that Bryant has abandoned his right to custody of Destiny, but there is nothing in this record to support that conclusion. It is also entirely possible that Bryant waived any right to contest the parenting plan that calls for Destiny’s adoption, but that is not established by the record either. Even if Bryant were entitled only to contest the issue of what is in Destiny’s best interest, however, as the Family Court advised him, a hearing was required with respect to that issue (see Matter of Ling Da Chen v Yue Hua Zhou, 39 AD3d 753 [2007]). The record before us does not reflect that such a hearing was ever held. The record before us also does not reflect, at least insofar as I have been able to discern, the information that my colleagues find to have been a sufficient predicate for the Family Court’s determination as to the best interest of Destiny. I would therefore reverse the order of the Family Court, reinstate the petition, and remit the matter to the Family Court for further proceedings.