And Wyatt K. Onondaga Cnty. Dep't of Children v. & Roger K. (In re Daniel K.)

• Decision Date: 14 June 2019
• Docket Number: 179,CAF 17–00884
• Citation: 173 A.D.3d 1732,100 N.Y.S.3d 604 (Mem)
• Parties: In the MATTER OF DANIEL K., Joseph K., Walter K., Jr., and Wyatt K. Onondaga County Department of Children and Family Services, Petitioner-Respondent; Mildred K., Respondent-Appellant, and Roger K., Respondent.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1732

100 N.Y.S.3d 604 (Mem)

In the MATTER OF DANIEL K., Joseph K., Walter K., Jr., and Wyatt K. Onondaga County Department of Children and Family Services, Petitioner-Respondent; Mildred K., Respondent-Appellant, and Roger K., Respondent.

179

CAF 17–00884

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 14, 2019

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal insofar as it concerns the finding of neglect is unanimously dismissed and the order is affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order that, inter alia, found that she neglected one of the subject children and derivatively neglected the other three subject children, and placed them in the custody of petitioner. The mother contends that Family Court erred in its finding of derivative neglect. That contention, however, "is not reviewable on appeal because it was premised on [her] admission of neglect and thereby made in an order entered on consent of the parties" (Matter of Jenessa L.M. [Shawn C.P.], 160 A.D.3d 1434, 1435, 72 N.Y.S.3d 861 [4th Dept. 2018] [internal quotation marks omitted] ). Furthermore, we note that, to the extent the mother contends that she did not consent to the finding of derivative neglect, her contention is not properly before us inasmuch as she raises it for the first time on appeal (cf. Matter of Paige K. [Jay J.B.], 81 A.D.3d 1284, 1284, 916 N.Y.S.2d 542 [4th Dept. 2011] ). To the extent that the mother contends that any purported consent to the finding of derivative neglect was not knowing, voluntary, and intelligent, we note that she did not move to vacate her admission to having derivatively neglected the subject children, and thus that contention is also not properly before us (see Matter of Kh'Niayah D. [Niani J.], 155 A.D.3d 1649, 1650, 63 N.Y.S.3d 800 [4th Dept. 2017], lv denied 31 N.Y.3d 901, 2018 WL 1414704 [2018] ; Matter of Martha S. [Linda M.S.], 126 A.D.3d 1496, 1497, 6 N.Y.S.3d 373 [4th Dept. 2015], lv dismissed in part and denied in part 26 N.Y.3d 941, 17 N.Y.S.3d 58, 38 N.E.3d 800 [2015] ; Matter of Julia R., 52 A.D.3d 1310, 1311, 860 N.Y.S.2d 362 [4th Dept. 2008], lv denied 11 N.Y.3d 709, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ).

We reject the mother's further contention that the court erred in determining that it was in the best interests of the two youngest derivatively neglected children to continue their placement in petitioner's custody. We conclude that the court's determination to that effect "reflect[s] a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances, and [is] supported by a sound and substantial basis in the record" ( Martha S., 126 A.D.3d at 1497, 6 N.Y.S.3d 373 [internal quotation marks omitted] ).

The mother's contention that she was denied a fair hearing because the Attorney for the Children made prejudicial remarks on summation is not preserved for our review (see generally Matter of Brooklyn S. [Stafania Q.—Devin S.], 150 A.D.3d 1698, 1699–1700, 52 N.Y.S.3d 607 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051983 [2017] ; Matter of Jamel Isaiah R., 18 A.D.3d 558, 558, ...