| Matter of Gabriella R. (Mindyn S.) |
| 2009 NY Slip Op 09574 [68 AD3d 1487] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gabriella R., a Neglected Child. Broome CountyDepartment of Social Services, Respondent; Mindyn S., Appellant, et al.,Respondent. |
—[*1] Kuredin Eytina, Broome County Department of Social Services, Binghamton, for BroomeCounty Department of Social Services, respondent. Ronald J. Lanouette, Law Guardian, Binghamton.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered February 3, 2009, which, in a proceeding pursuant to Family Ct Act article 10, denied amotion by respondent Mindyn S. to vacate a prior order of disposition.
In December 2007, petitioner commenced a proceeding alleging that respondents hadneglected their daughter (born in 2007). In October 2008, Family Court found the child to havebeen neglected by respondent Mindyn S. (hereinafter the mother) based upon her admission tocertain allegations set forth in the petition and, with the mother's consent, entered a dispositionalorder continuing the placement of the child with petitioner and placing the mother underpetitioner's supervision. Approximately one month later, the mother moved to vacate the order ofdisposition, arguing that she was under severe emotional distress at the time her consent wasgiven. Family Court determined that the mother did not demonstrate the requisite good cause tovacate the order, denied her motion and proceeded with a permanency hearing. The mother now[*2]appeals.[FN1]On appeal, the mother argues that the dispositional order, including her admission of neglect,should be vacated because Family Court did not provide the notice required by Family Ct Act§ 1051 (f) and her admissions were not knowingly and voluntarily made.
We affirm. Initially, we note that, although a party may not ordinarily appeal from an orderentered upon consent (see CPLR 5511; Matter of Cheyenne QQ., 37 AD3d 977,977-978 [2007]), the mother was entitled to—and did—move to vacate the ordersbased upon her allegations that her consent was not knowing and/or voluntary (see e.g.Matter of Nasir H., 251 AD2d 1010, 1010 [1998], lv denied 92 NY2d 809 [1998]).We find the mother's arguments to be unavailing.
In our view, the record supports Family Court's determination that the mother's admission tothe allegations of neglect and consent to the disposition were voluntarily made with the benefitof counsel (see Matter of Cadejah AA., 25 AD3d 1027, 1028 [2006], lv denied 7NY3d 705 [2006]; Matter of Leo UU., 288 AD2d 711, 712 [2001], lv denied 97NY2d 609 [2002]). At various court appearances, Family Court repeatedly advised the mother,in accordance with Family Ct Act § 1051 (f), of, among other things, her right to hearings,petitioner's burden of proof and the consequences of a finding of neglect, to which the motherexpressly indicated her understanding. Despite these admonitions, the mother admitted that,during a heated argument with the father—which occurred while the father was holdingthe child—the mother was holding a knife and the father sustained a cut to his face anddropped the infant. Although the mother indicated during her allocution that she was not exactlysure how the father sustained the cut to his face,[FN2]after consulting with counsel, the mother agreed that her conduct was inappropriate, admittedthat the circumstances provided a sufficient basis to support a finding that she had neglected herdaughter (see Family Ct Act § 1012 [f] [i]; Matter of June MM., 62 AD3d1216, 1217-1218 [2009], lv denied 13 NY3d 704 [2009]) and consented to the entry oforders of fact-finding and disposition.
Upon our review of the record, we find that Family Court's disclosures to the mothersufficiently complied with the requirements of Family Ct Act § 1051 (f) so as to ensurethat her admission was knowingly made (see generally Matter of Nicole KK., 46 AD3d1267, 1268 [2007]; Matter of Jeffrey X., 283 AD2d 687, 687-688 [2001]). While it istrue that the mother appeared confused and frustrated at times, we are satisfied that her confusionand frustration related to her desire to get her daughter back as quickly as possible and terminateher dealings with petitioner, rather than to any lack of understanding of her rights. There is alsono support in the record for the mother's contention that she was "severely distressed" during thedispositional proceeding. Notably, the record reflects that the mother asked questions and voicedher disagreement with certain objectionable conditions.[*3]
Nor has the mother satisfied her burden of showing goodcause to modify or vacate the order issued herein (see Family Ct Act § 1061;Matter of Cadejah AA., 34 AD3d 1141, 1141 [2006]; see also Matter of Carrie F. vDavid PP., 34 AD3d 1108, 1110 [2006]). In this regard, her contentions that petitioner orFamily Court coerced her into making admissions with the understanding that she would get herdaughter back more quickly are belied by the record, which illustrates that the mother wasrepeatedly advised that she would be required to successfully complete the applicable servicesand treatments and demonstrate improved skills before the child would be returned to her.Inasmuch as the allocution does not reveal that the mother's admission was made based uponcollateral promises, vacatur of such admission cannot be founded upon her allegations ofpetitioner's "unfulfilled promise of 'prompt action towards reconciliation' " (Matter of JeffreyX., 283 AD2d at 689).
Peters, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although the father wasadjudicated to have neglected the child after a hearing, he did not appeal from the finding ofneglect or the dispositional order.
Footnote 2: This was in direct conflict withthe mother's written statement given on the day of the incident, wherein she admitted that shehad cut the father's face with the knife because he would not let her out of the room.