Opinion
669 CAF 21-01535
11-17-2023
In the MATTER OF LIAM M.A. Erie County Department of Social Services, Petitioner-Respondent; v. Robert A., Respondent-Appellant. (Appeal No. 1.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT. REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Social Services Law § 383-c, respondent father appeals in appeal Nos. 1, 2, and 3 from an order and two corrected orders denying his motions seeking to vacate the conditional judicial surrenders that he executed with respect to the three subject children. Initially, with respect to appeal No. 1, Family Court denied the motion at issue in that appeal as moot on the ground that the child who is the subject of that motion has been adopted (see generally Matter of Jaxon S. [Jason S.] , 170 A.D.3d 1687, 1688, 96 N.Y.S.3d 794 [4th Dept. 2019] ). Inasmuch as the father does not raise any issue in his brief with respect to that dispositive determination, he is deemed to have abandoned any contention with respect to the propriety thereof (see Liberty Maintenance , Inc. v. Alliant Ins. Servs. , Inc. , 215 A.D.3d 1248, 1248, 186 N.Y.S.3d 762 [4th Dept. 2023] ; see generally Matter of Rohrback v. Monaco , 173 A.D.3d 1774, 1774, 105 N.Y.S.3d 635 [4th Dept. 2019] ; Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In light of our determination, we do not address defendant's contentions with respect to appeal No. 1 (see Liberty Maintenance , Inc. , 215 A.D.3d at 1248, 186 N.Y.S.3d 762 ). With respect to appeal Nos. 2 and 3, we conclude that defendant's contentions are either unpreserved or lack merit for the reasons that follow.
The father's contention that the surrenders should be vacated because the court did not inform him of certain consequences of the surrenders pursuant to Social Services Law § 383-c (3) (b) is not preserved for our review inasmuch as the father did not raise that ground in support of his motions (see Matter of Omia M. [Tykia B.] , 144 A.D.3d 1637, 1637, 41 N.Y.S.3d 852 [4th Dept. 2016] ).
Contrary to the father's further contention, the court properly denied the motions without a hearing because the motions "lacked a legal basis upon which [the c]ourt may have rescinded the judicial surrenders" ( Matter of Brittany R. [Annemarie R.] , 130 A.D.3d 1271, 1272, 13 N.Y.S.3d 692 [3d Dept. 2015], lv dismissed 26 N.Y.3d 996, 19 N.Y.S.3d 216, 41 N.E.3d 74 [2015] ). "It is well settled that, in the absence of ‘fraud, duress or coercion in the execution or inducement of a surrender[,] [n]o action or proceeding may be maintained by the surrendering parent ... to revoke or annul such surrender’ " ( Omia M. , 144 A.D.3d at 1637, 41 N.Y.S.3d 852, quoting Social Services Law § 383-c [6] [d] ; see Brittany R. , 130 A.D.3d at 1271, 13 N.Y.S.3d 692 ). In his motions, the father alleged that certain relatives of the subject children were threatened by a foster parent that they would not see the subject children again if they testified on the father's behalf at a hearing that had been scheduled on petitions seeking the termination of his parental rights with respect to those and other children. However, the father was not aware of those alleged threats at the time he executed the surrenders and they therefore cannot be a valid basis for his contention that he was coerced into signing the surrenders. The father's further allegation that petitioner's caseworker told the father that he faced having his parental rights terminated at the conclusion of the scheduled termination of parental rights hearing was also not a valid basis for vacatur of the surrenders. " ‘[I]nforming a parent of an accurate, albeit unpleasant, event is not coercion’ " ( Matter of Jenny A. v. Cayuga County Dept. of Health & Human Servs. , 50 A.D.3d 1583, 1583, 857 N.Y.S.2d 845 [4th Dept. 2008], lv dismissed 11 N.Y.3d 809, 868 N.Y.S.2d 587, 897 N.E.2d 1069 [2008] ). Moreover, the father indicated during the colloquy with respect to the surrenders that no one was forcing him or threatening him to sign the surrenders (see Matter of Jason F.A. [Francisco A.] , 151 A.D.3d 958, 959, 54 N.Y.S.3d 709 [2d Dept. 2017] ).
The father's primary allegation in support of the motions was that petitioner failed to meet a material condition of the surrenders with respect to visitation. The court properly noted, however, that the father's remedy with respect to that allegation was to file a petition or petitions pursuant to Family Court Act § 1055-a for enforcement of the surrenders’ terms, not to file motions to vacate the surrenders (see Matter of Sabrina H. , 245 A.D.2d 1134, 1134-1135, 666 N.Y.S.2d 531 [4th Dept. 1997] ). We reject the father's alternative contention that the court should have sua sponte treated his motions as ones for enforcement.