Opinion
2014-05-9
In the Matter of XAVIER O.V. Monroe County Department of Human Services, Petitioner–Respondent; Sabino V., Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Appellant. Merideth H. Smith, County Attorney, Rochester (Robin Unwin of Counsel), for Petitioner–Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Appellant. Merideth H. Smith, County Attorney, Rochester (Robin Unwin of Counsel), for Petitioner–Respondent.
Tanya J. Conley, Attorney for the Child, Rochester.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Respondent father agreed to an adjournment in contemplation of dismissal with respect to the allegations in a neglect petition. Later, he consented to a finding that he had permanently neglected the subject child and to the entry of a suspended judgment based on that finding. He now appeals from an order that, inter alia, revoked the suspended judgment, terminated his parental rights with respect to the child, and freed the child for adoption.
We have frequently concluded that Family Court's “prior order finding permanent neglect and suspending judgment was entered on consent of [the father] and thus is beyond appellate review” (Matter of Bryan W., 299 A.D.2d 929, 930, 749 N.Y.S.2d 347,lv. denied99 N.Y.2d 506, 755 N.Y.S.2d 713, 785 N.E.2d 735;see Matter of Ronald O., 43 A.D.3d 1351, 1351–1352, 842 N.Y.S.2d 801;Matter of Amanda T. [John T.], 4 A.D.3d 846, 846, 771 N.Y.S.2d 763;Matter of Cherilyn P., 192 A.D.2d 1084, 1084, 596 N.Y.S.2d 233,lv. denied82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660). Here, however, the father contends that his consent to the entry of the finding of permanent neglect was not given knowingly, voluntarily and intelligently. The father “has raised that contention for the first time on appeal ..., and thus has failed to preserve it for our review” (Matter of Atreyu G. [Jana M.], 91 A.D.3d 1342, 1342, 938 N.Y.S.2d 686,lv. denied19 N.Y.3d 801, 2012 WL 1502691;see Matter of Derrick T.M., 286 A.D.2d 938, 938–939, 730 N.Y.S.2d 756;see also Matter of Megan L.G.H. [Theresa G.H.], 102 A.D.3d 869, 869, 958 N.Y.S.2d 218) and, in any event, that contention is without merit. Although the record reflects that the father initially hesitated and indicated that he did not wish to admit any wrongdoing, he relented and agreed to permit the court to make a finding of permanent neglect and to enter a suspended judgment based on that finding. Contrary to the father's contention, “the proof does not show that ‘the consent was [given] under compulsion or threat, or against [the father]'s free will, or based upon fraudulent statements' ” (Matter of Jarrett, 224 A.D.2d 1029, 1030, 637 N.Y.S.2d 912,lv. dismissed88 N.Y.2d 960, 647 N.Y.S.2d 711, 670 N.E.2d 1343;see generally Matter of Seasia D., 10 N.Y.3d 879, 880, 860 N.Y.S.2d 760, 890 N.E.2d 875,rearg. denied11 N.Y.3d 752, 864 N.Y.S.2d 801, 894 N.E.2d 1190,cert. denied sub nom. Kareem W. [Anonymous], 555 U.S. 1046, 129 S.Ct. 629, 172 L.Ed.2d 610). Indeed, the record establishes that the father was represented by counsel at the time of his admission, and the father stated that he understood all the proceedings because they were translated into Spanish, his native language. Thus, we conclude that he knowingly, voluntarily and intelligently agreed to the entry of a finding of permanent neglect ( see generally Matter of Aparicio Rodrigo B., 29 A.D.3d 351, 351, 815 N.Y.S.2d 46).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.