Annabella B.C. Erie Cnty. Dep't of Soc. Servs. v.

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Fourth Department, New York.Jun 12, 2015
11 N.Y.S.3d 372 (N.Y. App. Div. 2015)
11 N.Y.S.3d 372129 A.D.3d 15502015 N.Y. Slip Op. 5055

2015-06-12

In the Matter of ANNABELLA B.C. Erie County Department of Social Services, Petitioner–Respondent; Sandra L.C., Respondent–Appellant. (Appeal No. 1.).

Alan Birnholz, East Amherst, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.



Alan Birnholz, East Amherst, for Respondent–Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner–Respondent.
David E. Blackley, Attorney for the Child, Lockport.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, and DeJOSEPH, JJ.

MEMORANDUM:


In appeal No. 1, respondent appeals from an order of fact-finding and disposition entered on consent of the parties and the Attorney for the Child determining that her daughter is a neglected child ( seeFamily Ct. Act § 1051[a] ). In appeal No. 2, respondent appeals from an order settling the record on appeal. Family Court refused to include in the record on appeal the transcript of a proceeding before a court attorney referee two months after the court's determination wherein respondent told the referee that she consented to the order because she was coerced by her attorney to do so.

Addressing first the order in appeal No. 2, contrary to respondent's contention, the court properly refused to include the transcript in the record on appeal in appeal No. 1 inasmuch as the court's determination in appeal No. 1 was not based upon that information ( see Balch v. Balch [Appeal No. 2], 193 A.D.2d 1080, 1080, 598 N.Y.S.2d 1022; see also Matter of Cicardi v. Cicardi, 263 A.D.2d 686, 686, 693 N.Y.S.2d 696; see generally Paul v. Cooper [Appeal No. 2], 100 A.D.3d 1550, 1551, 954 N.Y.S.2d 799, lv. denied 21 N.Y.3d 855, 2013 WL 1876585). Inasmuch as the order at issue in appeal No. 1 was entered upon the consent of the parties, appeal No. 1 must be dismissed ( see Matter of Holly B. [Scott B.], 117 A.D.3d 1592, 1592, 985 N.Y.S.2d 818; Matter of Cherilyn P., 192 A.D.2d 1084, 1084, 596 N.Y.S.2d 233, lv. denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660).

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