Opinion
82 CAF 18-02380
02-05-2021
In the MATTER OF HARMONY W. Erie County Department of Social Services, Petitioner-Respondent; v. Jessica W., Respondent-Appellant. (Appeal No. 1.)
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MELISSA J. HORVATITS OF COUNSEL), ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT
REBECCA HOFFMAN, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MELISSA J. HORVATITS OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, revoked a prior suspended judgment entered upon her admission to permanently neglecting the subject child and terminated her parental rights with respect to that child. We affirm. Contrary to the mother's contention, Family Court did not abuse its discretion in refusing to extend the suspended judgment (see Matter of Leala T. , 55 A.D.3d 997, 998, 872 N.Y.S.2d 558 [3d Dept. 2008] ; see generally Family Ct Act § 633 [f] ).
The mother's appeal "from the order revoking the suspended judgment[ ] do[es] not bring up for review the prior orders and proceedings in the matter," including the suspended judgment itself ( Matter of Bryan W. , 299 A.D.2d 929, 930, 749 N.Y.S.2d 347 [4th Dept. 2002], lv denied 99 N.Y.2d 506, 755 N.Y.S.2d 713, 785 N.E.2d 735 [2003] ; see Matter of Nicole Lee B. , 256 A.D.2d 1103, 1105, 685 N.Y.S.2d 162 [4th Dept. 1998] ; see also People v. Lawlor , 49 A.D.3d 1270, 1270, 852 N.Y.S.2d 894 [4th Dept. 2008], lv denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008] ; Schieck v. Schieck , 138 A.D.2d 688, 691, 526 N.Y.S.2d 502 [2d Dept. 1988] ; but see Matter of Ulawrence J. , 10 A.D.3d 658, 658, 781 N.Y.S.2d 609 [2d Dept. 2004] ). Thus, the mother's current claim of ineffective assistance in connection with the suspended judgment itself is not reviewable on this appeal (see Matter of Gerald BB. , 51 A.D.3d 1081, 1082-1083, 857 N.Y.S.2d 314 [3d Dept. 2008], lv denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008], rearg denied 12 N.Y.3d 776, 879 N.Y.S.2d 33, 906 N.E.2d 1066 [2009] ; Bryan W. , 299 A.D.2d at 930, 749 N.Y.S.2d 347 ). The mother's remaining challenges to the suspended judgment, i.e., that it was procedurally deficient, substantively unreasonable, and involuntarily entered, are likewise not reviewable on appeal from the order revoking the suspended judgment (see Bryan W. , 299 A.D.2d at 930, 749 N.Y.S.2d 347 ). The mother's "remedy with respect to each contention [directed at the suspended judgment] is to move in Family Court to vacate [such judgment]" ( Matter of Ras v. Rupp , 295 A.D.2d 892, 893, 743 N.Y.S.2d 760 [4th Dept. 2002] ; see Matter of Dimitry E. [Clarissa E.] , 177 A.D.3d 1223, 1224, 111 N.Y.S.3d 252 [3d Dept. 2019] ; Matter of Jessica M. v. Julio G.R. , 176 A.D.3d 584, 585, 108 N.Y.S.3d 863 [1st Dept. 2019] ).