IN RE: MARIA S.D. (2025)

Order, Family Court, Bronx County (Lauren T. Broderick, J.), entered on or about March 1, 2024, which, to the extent appealed from as limited by the briefs, denied respondent father's motion to vacate an order of fact-finding of neglect, unanimously affirmed, without costs.

The court entered a finding of neglect against the father on his consent, without an admission (Family Court Act § 1051[a]), after informing him that his consent would result in the court making a fact-finding order of neglect and of the potential consequences of such order, as required by Family Court Act § 1051(f).  Neither the father nor his attorney advised the court that the father had a hearing impairment.  After discharging his retained counsel and being assigned counsel, the father moved to vacate the finding of neglect for good cause under Family Court Act § 1061, claiming that he was unable to hear the proceedings due to a hearing impairment and that he received ineffective assistance of counsel.

The court providently denied the motion without a hearing, as a review of the record supports the conclusion that the father consented to entry of the neglect order.  The court conducted a full allocution, stopping at various points to answer the father's questions and make sure that he had heard and understood, thus ensuring that the father knowingly was waiving his right to contest the allegations on which the neglect petition was based and that he had discussed all issues with his attorney (see Matter of Gabriella R. [Mindyn S.], 68 A.D.3d 1487, 1488, 891 N.Y.S.2d 539 [3d Dept. 2009], lv dismissed 14 N.Y.3d 812, 899 N.Y.S.2d 752, 926 N.E.2d 256 [2010]).

Even if, as the father contends, there were issues with the audio during virtual hearings, when the father expressed that he could not hear, the court obligingly repeated, spoke slower, and rephrased until the father indicated that he had heard and understood.  Nor does the father's medical documentation, first submitted to the court at its request after the conclusion of the proceedings, change these facts.  Nor can the court be faulted for failing to accommodate a hearing impairment under the Americans with Disabilities Act when the court was unaware of the issue (see Kadanoff v. Kadanoff, 46 A.D.3d 626, 627, 848 N.Y.S.2d 661 [2d Dept. 2007]).

To the extent the father now claims that the court's allocution was inadequate and failed to provide mandated notice under Family Court Act § 1051(f), this issue, raised for the first time on appeal, is unpreserved (see Matter of Nicole KK., 46 A.D.3d 1267, 1268, 848 N.Y.S.2d 442 [3d Dept. 2007]).  In any event, the court conducted a full allocution covering all the points required by the statute (see Matter of Gabriella R. [Mindyn S.], 68 A.D.3d at 1488, 891 N.Y.S.2d 539).

The father did not raise an issue as to whether his retained counsel provided ineffective assistance of counsel (see Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 617, 118 N.Y.S.3d 573 [1st Dept. 2020], lv denied 35 N.Y.3d 911, 2020 WL 5047416 [2020]).  Ineffectiveness cannot be inferred from the attorney counseling him to consent to settling the petition and there is no showing of actual prejudice, given that the court fully explained the terms of the settlement (see Matter of Aaron Tyrell W., 58 A.D.3d 419, 420, 870 N.Y.S.2d 301 [1st Dept. 2009];  Matter of Nasir H., 251 A.D.2d 1010, 1010, 674 N.Y.S.2d 179 [4th Dept. 1998], lv denied 92 N.Y.2d 809, 678 N.Y.S.2d 595, 700 N.E.2d 1231 [1998]).

We have considered the father's remaining arguments and find them unavailing.