IN RE: JEZREL C. and Others (2025)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Schenectady County (Mark Blanchfield, J.), entered January 29, 2024, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

Respondent (hereinafter the mother) is the mother of the subject children (born in 2014, 2020 and 2022).  In July 2023, petitioner received a hotline report that the mother was engaged in violent and dangerous behavior, including attempting to run over her paramour – the father of the two younger children – with her vehicle while the children were inside.  After implementing a safety plan and obtaining temporary orders of protection on behalf of the children, petitioner commenced this neglect proceeding, alleging, among other things, that the mother placed the children at significant risk of harm by engaging in incidents of domestic violence in their presence.  The mother initially entered a general denial, but ultimately consented to a finding of neglect and further consented to the terms of the proposed disposition, which required her to participate in mental health treatment and prohibited her from being together with the paramour in the presence of the children.  An order of fact-finding and disposition was entered, and Family Court issued separate orders of protection and supervision.  The mother appeals.

Generally, “[n]o appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby” (Matter of Adam V. v. Ashli W., 180 A.D.3d 1205, 1206, 120 N.Y.S.3d 438 [3d Dept. 2020] [internal quotation marks and citation omitted];  see Matter of Adam O. v. Tracie P., 188 A.D.3d 1312, 1313, 131 N.Y.S.3d 916 [3d Dept. 2020]).  The appealing party is “not precluded from bringing a challenge to such orders, but instead must do so in the first instance by filing a motion to vacate the order, thus providing Family Court with an opportunity to consider and correct any deficiencies” (Matter of Vicktoriya DD. [Daniel EE.], 172 A.D.3d 1473, 1474, 97 N.Y.S.3d 890 [3d Dept. 2019];  see Matter of Dimitry E. [Clarissa E.], 177 A.D.3d 1223, 1224, 111 N.Y.S.3d 252 [3d Dept. 2019]).

The mother does not dispute that these principles are controlling.  Rather, conceding that her attorney did not move to vacate the consent order, her sole argument on appeal is that counsel was ineffective for failing to do so.  However, the mother has not identified any reason as to why the failure to seek vacatur constituted ineffective assistance.  For example, she does not challenge the voluntariness of her consent (compare Matter of Erica X. v. Lisa X., 180 A.D.3d 1187, 1189, 120 N.Y.S.3d 450 [3d Dept. 2020]), nor does she argue that the order differed from or exceeded her consent (compare Matter of Jordan v. Horstmeyer, 152 A.D.3d 1097, 1098, 60 N.Y.S.3d 549 [3d Dept. 2017];  see also Matter of Armani KK. [Deborah KK.], 81 A.D.3d 1001, 1001–1002, 915 N.Y.S.2d 422 [3d Dept. 2011], lv denied 16 N.Y.3d 711, 2011 WL 1643281 [2011]).  “In the absence of any nonspeculative basis in the record upon which to conclude that there were grounds for a motion to vacate ․, counsel cannot be faulted for failing to make a motion that has little or no chance of success” (Matter of Ritter v. Moll, 148 A.D.3d 1427, 1429, 50 N.Y.S.3d 183 [3d Dept. 2017] [internal quotation marks and citations omitted]).

ORDERED that the appeal is dismissed, without costs.

Ceresia, J.

Egan Jr., J.P., Aarons, Pritzker and Lynch, JJ., concur.