Opinion
2014-06-12
In the Matter of NA'SIR RR., Alleged to be a Neglected Child. Commissioner of the Schenectady County Department of Social Services, Respondent; Devine RR., Appellant.
Sandra M. Colatosti, Albany, for appellant. Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, for respondent.
Sandra M. Colatosti, Albany, for appellant. Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, for respondent.
Karen Crandall, Schenectady, attorney for the child.
Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.
GARRY, J.
Appeals (1) from an order of the Family Court of Schenectady County (Powers, J.), entered March 15, 2013, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, to adjudicate respondent's child to be neglected, and (2) from the orders of protection and supervision issued thereon.
Respondent is the father of a child (born in 2012) who was removed from his mother's care immediately after his birth and temporarily placed in petitioner's custody. Petitioner commenced this proceeding alleging derivative neglect based upon a prior neglect finding. In February 2012, following several appearances, respondent consented to a finding of neglect, without admissions, and Family Court made a finding of neglect based upon the allegations in the petition. The court thereafter entered orders of fact-finding and disposition, supervision and protection. Respondent appeals.
The appeal must be dismissed, as an order entered upon consent is not appealable ( see Matter of Dante W. [Justin W.], 110 A.D.3d 1400, 1401, 974 N.Y.S.2d 618 [2013];Matter of Trenton G. [Lianne H.], 100 A.D.3d 1124, 1125, 952 N.Y.S.2d 918 [2012] ). We note that in the course of the proceedings, respondent's counsel misstated the law in this respect, without correction. The record also reveals, however, that respondent was advised that Family Court would enter a finding of neglect upon his consent and would then proceed with an order of disposition, and the terms of the order of supervision were described to him ( seeFamily Ct. Act § 1051[f] ). Respondent has neither moved to vacate the finding of neglect nor to withdraw his consent and, thus, his claim that his consent was invalid is not properly before this Court ( seeFamily Court Act § 1061; Matter of Dante W. [Justin W.], 110 A.D.3d at 1401, 974 N.Y.S.2d 618;Matter of Gabrielle S. [Reberick T.], 105 A.D.3d 1098, 1098–1099, 961 N.Y.S.2d 814 [2013];Matter of Logan BB. [Michelle DD.], 82 A.D.3d 1373, 1374, 918 N.Y.S.2d 387 [2011] ).
ORDERED that the appeal is dismissed, without costs. LAHTINEN, J.P., STEIN and ROSE, JJ., concur.