Opinion
2014-06-12
In the Matter of JACOB EE. and Others, Alleged to be Neglected Children. Otsego County Department of Social Services, Respondent; Autumn HH., Appellant, et al., Respondent.
Christopher Hammond, Cooperstown, for appellant. Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, for Otsego County Department of Social Services, respondent.
Christopher Hammond, Cooperstown, for appellant. Steven E. Ratner, Otsego County Department of Social Services, Cooperstown, for Otsego County Department of Social Services, respondent.
William L. Koslosky, Utica, attorney for the children.
Carol Malz, Oneonta, attorney for the child.
Victor Carrascoso, Cooperstown, for Travis FF.
Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.
STEIN, J.
Appeal from an order of the Family Court of Otsego County (Burns, J.), entered October 24, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate the subject children to be neglected.
In July 2012, petitioner filed a petition alleging that respondents, Steven GG. and Autumn HH. (hereinafter the mother), neglected their children
by, among other things, using drugs while they were caring for them. Upon certain admissions by respondents to their use of controlled substances and their consent to a finding of neglect, Family Court entered a fact-finding and dispositional order that adjudicated the three children to be neglected. The mother now appeals.
Respondents have one child (born in 2012) together. The mother also has a child (born in 2008) by a different father and Steven GG. has a child (born 2004) by a different mother.
Because the subject order was entered with the mother's consent and she failed to make a timely application in Family Court to vacate such order, she is not aggrieved thereby and her appeal is, therefore, not properly before us ( seeCPLR 5511; Matter of Logan BB. [Michelle DD.], 82 A.D.3d 1373, 1374, 918 N.Y.S.2d 387 [2011];Matter of June MM., 62 A.D.3d 1216, 1217, 879 N.Y.S.2d 633 [2009],lv. denied13 N.Y.3d 704, 2009 WL 2871186 [2009];Matter of Fantasia Y., 45 A.D.3d 1215, 1216, 846 N.Y.S.2d 474 [2007];Matter of Monica T., 44 A.D.3d 1136, 1137, 842 N.Y.S.2d 923 [2007];Matter of Elijah Q., 36 A.D.3d 974, 975, 828 N.Y.S.2d 607 [2007],lv. denied8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007];see also Matter of Ma'Kyle L. [Myriam B.-Egbert L.], 103 A.D.3d 802, 802, 959 N.Y.S.2d 449 [2013];Matter of Edelyn S., 62 A.D.3d 713, 713, 877 N.Y.S.2d 900 [2009];cf. Matter of Connor CC. [Jennifer DD.], 99 A.D.3d 1127, 1127, 952 N.Y.S.2d 801 [2012] ). During Family Court's colloquy, the court recited the parties' agreement that both respondents would admit to having created a risk of harm to the children by using controlled substances and, based on those admissions, that a finding of neglect would be issued against them. Family Court also explained the dispositions that would be entered.
Additionally, Family Court advised both respondents in great detail of the rights they were forfeiting—such as the right to challenge the allegations of neglect, to testify on their own behalf and to call witnesses—as well as the consequences that would flow from the neglect order ( seeFamily Ct. Act § 1051[f] ). Before accepting respondents' admissions, the court ensured that each respondent was acting knowingly, voluntarily and intelligently ( seeFamily Ct. Act § 1051[f]; Matter of Fantasia Y., 45 A.D.3d at 1216, 846 N.Y.S.2d 474) and, with counsel present, each respondent then made an admission to using a controlled substance on more than one occasion, which created a risk of harm to the children ( seeFamily Ct. Act § 1051[a] ). Family Court accepted those admissions and, in accordance with the parties' agreement, made neglect findings based thereon. Under these circumstances, the mother's appeal must be dismissed ( compare Matter of Armani KK. [Deborah KK.], 81 A.D.3d 1001, 1001–1002, 915 N.Y.S.2d 422 [2011],lvs. denied16 N.Y.3d 711, 2011 WL 1643281 [2011],16 N.Y.3d 712, 923 N.Y.S.2d 416, 947 N.E.2d 1195 [2011];Matter of Jerrica J., 2 A.D.3d 1161, 1163, 770 N.Y.S.2d 171 [2003] ).
ORDERED that the appeal is dismissed, without costs.
LAHTINEN, J.P., GARRY and ROSE, JJ., concur.