| Matter of Dante W. (Justin W.) |
| 2013 NY Slip Op 07098 [110 AD3d 1400] |
| October 31, 2013 |
| Appellate Division, Third Department |
| In the Matter of Dante W., a Child Alleged to be Neglected.Delaware County Department of Social Services, Respondent; Justin W.,Appellant. |
—[*1] Renee Albaugh, Delhi, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered July 24, 2012, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to adjudicate respondent's child to be neglected.
Respondent and Jessica X. (hereinafter the mother) are the parents of a son, DanteW. (born in 2008). In connection with several incidents in which respondent consumedalcohol in excess and committed acts of domestic violence against the mother, orders ofprotection were issued against respondent in favor of the mother and Dante. Arelationship nonetheless continued between respondent and the mother until a subsequentincident in July 2011 in which respondent, again after consuming alcohol, punched theback window of the mother's automobile causing glass to shatter onto Dante. As a result,respondent pleaded guilty to the crimes of aggravated harassment in the second degreeand criminal contempt in the second degree, for which he was sentenced to a prison termof 1 to 3 years.
Petitioner then commenced this proceeding against respondent, alleging that Dantewas [*2]neglected. In the course of this proceeding,respondent—appearing telephonically from his place of incarceration andrepresented by counsel—engaged in a colloquy with Family Court and hisattorney. At the conclusion, the court determined that respondent had consented to aproposed resolution. The court thereafter entered an order of fact-finding and dispositionreflecting the parties' alleged agreement, and respondent now appeals.
An order entered upon consent is not appealable (see Matter of Gabrielle S. [Reberick T.], 105 AD3d 1098,1098-1099 [2013]; Matter ofViolette K. [Sheila E.K.], 96 AD3d 1499, 1499 [2012]). Furthermore, becausehe did not move in Family Court to vacate the order or to withdraw what that courtdetermined to be his consent (see Family Ct Act § 1051 [f]), respondent'spresent claim that his consent was not knowing, intelligent or voluntary is not properlybefore us (see Family Ct Act § 1061; Matter of Gabrielle S. [ReberickT.], 105 AD3d at 1099; Matter of Cora J. [Kenneth J.], 72 AD3d 1170, 1171[2010]). Accordingly, the appeal is dismissed.[FN*]
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the appeal is dismissed,without costs.
Footnote *: Notably, Family Ct Act§ 1061 has no time limitation. "Hence a motion may be made at any time,presumably until the order at issue expires, thereby rendering any motion moot" (MerrilSobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act§ 1061 at 143).