Steuben Cnty. Dep't of Soc. Servs. v. Sheila E.K. (In re Violette K.)

• Decision Date: 08 June 2012
• Citation: 946 N.Y.S.2d 519,96 A.D.3d 1499,2012 N.Y. Slip Op. 04601
• Parties: In the Matter of VIOLETTE K. Steuben County Department of Social Services, Petitioner–Respondent; Sheila E.K., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1499

946 N.Y.S.2d 519

2012 N.Y. Slip Op. 04601

In the Matter of VIOLETTE K. Steuben County Department of Social Services, Petitioner–Respondent; Sheila E.K., Respondent–Appellant.

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

June 8, 2012.

Appeal from an order of the Family Court, Steuben County (Joseph W. Latham, J.), entered July 27, 2011 in a proceeding pursuant to Family Court Act article 10. The order, among other things, placed the subject child in the custody of petitioner.

Cara A. Waldman, Fairport, for respondent–appellant.

Alan P. Reed, County Attorney, Bath (Craig A. Patrick of counsel), for petitioner–respondent.

Christine M. Valkenburgh, Attorney for the Child, Bath, for Violette K.

MEMORANDUM:

In this proceeding pursuant to Family Court Act article 10, respondent mother appeals from an order, entered upon her consent without admission, in which Family Court, inter alia, placed the subject child in petitioner's custody upon a finding that the mother neglected the child. The appeal must be dismissed. A party may not appeal from an order entered upon that party's consent ( see Matter of Selena O., 84 A.D.3d 1648, 923 N.Y.S.2d 363;Matter of Bambi C., 238 A.D.2d 942, 942–943, 661 N.Y.S.2d 551,lv. denied90 N.Y.2d 805, 663 N.Y.S.2d 511, 686 N.E.2d 223). Moreover, because the mother never moved to withdraw her consent to the entry of an order of fact-finding of neglect without admission, her contention that her consent was not knowing, voluntary and intelligent is also not properly before us ( see Matter of Julia R., 52 A.D.3d 1310, 1311, 860 N.Y.S.2d 362,lv. denied11 N.Y.3d 709, 868 N.Y.S.2d 601, 897 N.E.2d 1085;cf. Matter of Gabriella R., 68 A.D.3d 1487, 1487, 891 N.Y.S.2d 539,lv. dismissed14 N.Y.3d 812, 899 N.Y.S.2d 752, 926 N.E.2d 256).

We reject the mother's further contention that her attorney was ineffective in failing to move to withdraw her consent to the entry of the neglect order. The mother “neither alleged nor demonstrated that [she] was actually prejudiced by any of counsel's shortcomings. [Her] contention that counsel was ineffective ‘is impermissibly based on speculation’ ” (Matter of Michael C., 82 A.D.3d 1651, 1652, 920 N.Y.S.2d 502,lv. denied17 N.Y.3d 704, 2011 WL 2535216).

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

SCUDDER, P.J., SMITH, FAHEY, LINDLEY, and MARTOCHE, JJ., concur.