Opinion
2012-10-25
In the Matter of CONNOR CC. and Another, Alleged to be Neglected Children. Schoharie County Department of Social Services, Respondent; Jennifer DD., Appellant.
Sandra M. Colatosti, Albany, for appellant. David P. Lapinel, Schoharie County Department of Social Services, Schoharie, for respondent.
Sandra M. Colatosti, Albany, for appellant. David P. Lapinel, Schoharie County Department of Social Services, Schoharie, for respondent.
Thomas F. Garner, Middleburgh, attorney for the child.
Michael W. Brosnan, Cobleskill, attorney for the child.
Before: MERCURE, J.P., MALONE JR., McCARTHY, GARRY and EGAN JR., JJ.
EGAN JR., J.
Appeals (1) from an order of the Family Court of Schoharie County (Bartlett III, J.), entered February 3, 2011, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's children to be neglected, and (2) from an order of protection entered thereon.
Petitioner commenced this neglect proceeding in January 2010 alleging that respondent abused controlled substances while caring for her two children (born in 1995 and 2004). A fact-finding hearing ensued, during the course of which respondent consented to a finding of neglect without factual admissions ( seeFamily Ct. Act § 1051[a] ) and, further, to placement of the children with her parents. When the matter came on for a dispositional hearing, respondent consented to both the continued placement of the children with her parents and the corresponding order of protection. Respondent now appeals.
It is well settled that no appeal lies from an order entered upon a party's consent ( see Matter of Violette K. [Sheila E.K.], 96 A.D.3d 1499, 1499, 946 N.Y.S.2d 519 [2012];Matter of Mary UU. [Michael UU.-Marie VV.], 70 A.D.3d 1227, 1228, 893 N.Y.S.2d 908 [2010];Matter of Fantasia Y., 45 A.D.3d 1215, 1216, 846 N.Y.S.2d 474 [2007];Matter of Cheyenne QQ., 37 A.D.3d 977, 977–978, 830 N.Y.S.2d 600 [2007] ). Further, inasmuch as respondent did not move to vacate the underlying order, her present claim—that Family Court failed to comply with the requirements of Family Ct. Act § 1051(f) and, therefore, her consent was not knowing, intelligent and voluntary—is not properly before us ( see Matter of Mary UU. [Michael UU.-Marie VV.], 70 A.D.3d at 1228, 893 N.Y.S.2d 908;Matter of Fantasia Y., 45 A.D.3d at 1216, 846 N.Y.S.2d 474;cf. Matter of Selena O. [Trisha O.-Steven R.], 84 A.D.3d 1648, 1648, 923 N.Y.S.2d 363 [2011];Matter of DeFrancesco v. Mushtare, 77 A.D.3d 1079, 1080, 908 N.Y.S.2d 889 [2010] ). Accordingly, these appeals are dismissed.
ORDERED that the appeals are dismissed, without costs.