| Matter of Nicole KK. |
| 2007 NY Slip Op 10434 [46 AD3d 1267] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Nicole KK., a Child Alleged to be Neglected.Delaware County Department of Social Services, Respondent; Mary LL.,Appellant. |
—[*1] Amy B. Merklen, Delaware County Department of Social Services, Delhi, for respondent. Larisa Obolensky, Law Guardian, Delhi.
Lahtinen, J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered December 8, 2006, which, in a proceeding pursuant to Family Ct Act article 10, deniedrespondent's motion to vacate a prior order of the court.
Petitioner commenced a proceeding in September 2006 alleging that respondent neglectedher daughter (born in 1993). In October 2006, respondent executed a stipulation admittingneglect and consenting to a dispositional order placing the child in petitioner's care. Thereafter,she appeared in Family Court, where she acknowledged that she voluntarily entered into thestipulation and admitted the facts constituting neglect. A consent order of fact-finding anddisposition was entered October 30, 2006. By order to show cause dated November 17, 2006,respondent moved to vacate the consent order alleging that fraudulent conduct by petitioner hadcaused her to enter into the stipulation. Following an appearance by the parties and argument onthe record, Family Court denied the motion. Respondent appeals from the order [*2]denying her motion to vacate.
Initially, we find no merit in petitioner's contention that we should dismiss the appealbecause the order respondent seeks to vacate was entered on consent. While it is well settled thatno appeal lies from a consent order (see Matter of Forbus v Stolfi, 300 AD2d 852, 852[2002], lv dismissed 99 NY2d 642 [2003]), respondent is not appealing the consentorder. She is appealing the order denying the motion to vacate. A motion to vacate is the properprocedural vehicle for challenging a consent order (see Matter of Cheyenne QQ., 37 AD3d 977, 978 [2007]; Matterof Carmella J., 254 AD2d 70, 70 [1998]; Matter of Nasir H., 251 AD2d 1010, 1010[1998], lv denied 92 NY2d 809 [1998]) and an appeal from an order deciding such amotion is appropriate (see generally Matter of Jeffrey X., 283 AD2d 687 [2001]).
Respondent argues that she was not adequately warned of the potential consequences of herconsent to the neglect findings as required by Family Ct Act § 1051 (f). However, this wasnot asserted as a ground to vacate the consent order in respondent's motion before Family Courtand, accordingly, the issue is not properly before us (see generally Matter of Nahja I., 279AD2d 666, 668 [2001]). In any event, respondent's stipulation sets forth that she had been fullyinformed of the provisions of Family Ct Act § 1051.
We are unpersuaded by respondent's further argument that she was enticed to agree to theterms of the stipulation as a result of petitioner's fraudulent conduct. While an admission ofneglect can be overturned for "good cause" pursuant to Family Ct Act § 1061 (seeMatter of Jeffrey X., 283 AD2d at 689), assertions that are inconsistent with the allocutionand unsupported by other evidence are insufficient to require vacatur (see Matter of Cadejah AA., 34 AD3d1141, 1142 [2006]; Matter of Jeffrey X., 283 AD2d at 689). Respondent's contentionthat she was induced to sign the stipulation by promises of increased visitation and a quickreunion with her daughter is inconsistent with the allocution. Moreover, as observed by FamilyCourt at the hearing on the motion, respondent did not assert that the facts she admitted at theallocution regarding the child were incorrect and these facts fully support the neglectdetermination.
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur. Ordered that the order isaffirmed, without costs.