Opinion
1083 CAF 17–00862
11-16-2018
In the MATTER OF DANIEL K., Joseph K., Walter K., Jr., and Wyatt K. Onondaga County Department of Children and Family Services, Petitioner–Respondent; v. Mildred K., Respondent, and Roger K., Respondent–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT. JOHN G. KOSLOSKY, UTICA, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER–RESPONDENT.
JOHN G. KOSLOSKY, UTICA, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, 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 father appeals from an order that, inter alia, found that he neglected Daniel K. and derivatively neglected the other three children, and placed them in the custody of petitioner. The father contends that Family Court erred in its finding of derivative neglect. That contention, however, "is not reviewable on appeal because it was premised on [his] 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] ). Furthermore, we note that, to the extent the father contends that he did not consent to the finding of derivative neglect, his contention is not properly before us inasmuch as he 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 father contends that any purported consent to the finding of derivative neglect was not knowing, voluntary, and intelligent, we note that he did not move to vacate his 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] ).
The father's contention that the Attorney for the Children (AFC) was ineffective is not preserved for our review because the father failed to make a motion seeking the AFC's removal (see Matter of Mason v. Mason, 103 A.D.3d 1207, 1208, 959 N.Y.S.2d 577 [4th Dept. 2013] ). Moreover, the father's contention that the AFC was ineffective because she substituted her judgment for that of the children is "based on matters outside the record and is not properly before us" ( Matter of Brian S. [Tanya S.], 141 A.D.3d 1145, 1147, 34 N.Y.S.3d 851 [4th Dept. 2016] ; see Matter of Gridley v. Syrko, 50 A.D.3d 1560, 1561, 857 N.Y.S.2d 838 [4th Dept. 2008] ; Matter of Harry P. v. Cindy W., 48 A.D.3d 1100, 1100, 850 N.Y.S.2d 783 [4th Dept. 2008] ). According to the Rules of the Chief Judge, an AFC "must zealously advocate the child's position" and, "[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child's best interests" ( 22 NYCRR 7.2 [d][2] ). There is, however, minimal evidence in the record here regarding the AFC's interactions with the subject children, and no evidence with respect to whether the AFC ignored their wishes.
We reject the father's further contention that the court erred in determining that it was in the best interests of Joseph K. and Wyatt K. 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 ). We have considered the father's remaining contentions and conclude that they are without merit.