| Matter of June MM. |
| 2009 NY Slip Op 04137 [62 AD3d 1216] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of June MM., a Child Alleged to be Neglected. St.Lawrence County Department of Social Services, Respondent; Tina MM., Appellant.(Proceeding No. 1.) In the Matter of June MM., a Child Alleged to be Neglected. St. LawrenceCounty Department of Social Services, Respondent; Vernon MM., Appellant. (Proceeding No.2.) |
—[*1] John A. Cirando, Syracuse, for Vernon MM., appellant. David D. Willer, St. Lawrence County Department of Social Services, Canton, forrespondent. Thomas B. Wheeler, Law Guardian, Potsdam.
Malone Jr., J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered February 4, 2008, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 10, to adjudicate respondents' child to be neglected.
In June 2007, only days after the subject child was born, petitioner filed two petitionsalleging that respondent Tina MM. (hereinafter the mother) and respondent Vernon MM.(hereinafter the father) had neglected the child, and the child was removed from their care. At ahearing on the petitions, respondents withdrew their requests for a hearing pursuant to Family CtAct § 1028 and consented to the continued placement of the child in foster care. FamilyCourt also issued, among other things, orders of protection against both respondents, which theyallegedly subsequently violated.
Ultimately, respondents each agreed to settle the neglect petitions against them in exchangefor the dismissal of the violation petitions. Pursuant to the settlement agreement, the mother wasfound to have neglected the child after she admitted to the allegations in the petition, and thefather consented to a finding of neglect without making any specific admissions. After adispositional hearing, Family Court determined that it was in the child's best interest to continueplacement with the foster parents. Respondents now appeal.[FN*]
Initially, because the finding of neglect entered against the father was entered with hisconsent and he failed to make a timely application in Family Court to vacate that order, hispresent challenge to that finding is not properly before us (see Matter of Brittany T., 48 AD3d 995, 997 [2008]; Matter of Elijah Q., 36 AD3d 974,975 [2007], lv denied 8 NY3d 809 [2007]). His contention that his consent was coercedis not supported by the record, nor is it problematic that he gave his consent without makingspecific admissions (see Family Ct Act § 1051 [f]; see also Matter of Julia R., 52 AD3d1310, 1311 [2008], lv denied 11 NY3d 709 [2008]).
As for the mother, although she admitted to a previous finding of permanent neglect withrespect to her older child, such finding is too remote in time to reasonably conclude that theconditions leading to that finding continued to exist (see Matter of Natasha RR., 27 AD3d 788, 789 [2006]; compare Matter of Evelyn B., 30AD3d 913 [2006], lv denied 7 NY3d 713 [2006]). However, the instant finding ofneglect is nonetheless supported by a preponderance of the evidence. Specifically, the motheradmitted to the allegations of neglect in the petition, including that she engaged in numerousphysical altercations with the father and was arrested for violating orders of protection againstthe father—and then pleaded guilty to those violations—all while pregnant with thesubject child, thereby creating a substantial risk of harm to the child. These admissions aresufficient to sustain Family Court's finding of neglect (see Family Ct Act § 1012[f] [i] [B]; Matter of Leo UU., 288 AD2d 711, 712-713 [2001], lv denied 97NY2d 609 [2002]; see also Matter of Nasir H., 251 AD2d 1010 [1998], lv denied92 NY2d 809 [1998]).
Finally, the father's challenge to the order of disposition is moot as that order expired in July2008 by its own terms (see Matter ofAndrew MM., 24 AD3d 1116, 1116 [2005]; Matter of Nathan PP., 246 AD2d835, 835 [1998], lv denied 91 NY2d 813 [1998]). The parties' remaining contentions,including their claims of ineffective assistance of counsel, have been reviewed and found to bewithout merit.
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Contrary to the Law Guardian'scontentions, we find the joint notice of appeal to be sufficient with respect to the mother,notwithstanding any alleged defects in form (see CPLR 5520 [c]; Matter of Eisner v Eisner, 44 AD3d1111, 1113 n [2007], lv denied 9 NY3d 816 [2007]).