IN RE: JUNE MM.

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: JUNE MM., Alleged to be a Neglected Child. St. Lawrence County Department of Social Services, Respondent; Tina MM., Appellant.  (Proceeding No. 1.) In the Matter of June MM., Alleged to be a Neglected Child. St. Lawrence County Department of Social Services, Respondent; Vernon MM., Appellant.  (Proceeding No. 2.)

Decided: May 28, 2009

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and MALONE JR., JJ. Livingston L. Hatch, Plattsburgh, for Tina MM., appellant. John A. Cirando, Syracuse, for Vernon MM., appellant. David D. Willer, St. Lawrence County Department of Social Services, Canton, for respondent. Thomas B. Wheeler, Law Guardian, Potsdam.

Appeal from an order of the Family Court of St. Lawrence County (Potter, J.), entered February 4, 2008, which granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 10, to adjudicate respondents' child to be neglected.

In June 2007, only days after the subject child was born, petitioner filed two petitions alleging that respondent Tina MM. (hereinafter the mother) and respondent Vernon MM. (hereinafter the father) had neglected the child, and the child was removed from their care.   At a hearing on the petitions, respondents withdrew their requests for a hearing pursuant to Family Ct. Act § 1028 and consented to the continued placement of the child in foster care.   Family Court also issued, among other things, orders of protection against both respondents, which they allegedly subsequently violated.

Ultimately, respondents each agreed to settle the neglect petitions against them in exchange for the dismissal of the violation petitions.   Pursuant to the settlement agreement, the mother was found to have neglected the child after she admitted to the allegations in the petition, and the father consented to a finding of neglect without making any specific admissions.   After a dispositional hearing, Family Court determined that it was in the child's best interest to continue placement with the foster parents.   Respondents now appeal.1

Initially, because the finding of neglect entered against the father was entered with his consent and he failed to make a timely application in Family Court to vacate that order, his present challenge to that finding is not properly before us (see Matter of Brittany T., 48 A.D.3d 995, 997, 852 N.Y.S.2d 475 [2008];  Matter of Elijah Q., 36 A.D.3d 974, 975, 828 N.Y.S.2d 607 [2007], lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007] ).   His contention that his consent was coerced is not supported by the record, nor is it problematic that he gave his consent without making specific admissions (see Family Ct. Act § 1051[f];  see also Matter of Julia R., 52 A.D.3d 1310, 1311, 860 N.Y.S.2d 362 [2008], lv. denied 11 N.Y.3d 709, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ).

As for the mother, although she admitted to a previous finding of permanent neglect with respect to her older child, such finding is too remote in time to reasonably conclude that the conditions leading to that finding continued to exist (see Matter of Natasha RR., 27 A.D.3d 788, 789, 811 N.Y.S.2d 463 [2006];  compare Matter of Evelyn B., 30 A.D.3d 913, 819 N.Y.S.2d 573 [2006], lv. denied 7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136 [2006] ).   However, the instant finding of neglect is nonetheless supported by a preponderance of the evidence.   Specifically, the mother admitted to the allegations of neglect in the petition, including that she engaged in numerous physical altercations with the father and was arrested for violating orders of protection against the father-and then pleaded guilty to those violations-all while pregnant with the subject child, thereby creating a substantial risk of harm to the child.   These admissions are sufficient to sustain Family Court's finding of neglect (see Family Ct. Act § 1012[f] [i][B];  Matter of Leo UU., 288 A.D.2d 711, 712-713, 732 N.Y.S.2d 480 [2001], lv. denied 97 N.Y.2d 609, 739 N.Y.S.2d 357, 765 N.E.2d 853 [2002];  see also Matter of Nasir H., 251 A.D.2d 1010, 674 N.Y.S.2d 179 [1998], lv. denied 92 N.Y.2d 809, 678 N.Y.S.2d 595, 700 N.E.2d 1231 [1998] ).

Finally, the father's challenge to the order of disposition is moot as that order expired in July 2008 by its own terms (see Matter of Andrew MM., 24 A.D.3d 1116, 1116, 807 N.Y.S.2d 180 [2005];  Matter of Nathan PP., 246 A.D.2d 835, 835, 668 N.Y.S.2d 79 [1998], lv. denied 91 N.Y.2d 813, 674 N.Y.S.2d 278, 697 N.E.2d 179 [1998] ).   The parties' remaining contentions, including their claims of ineffective assistance of counsel, have been reviewed and found to be without merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Contrary to the Law Guardian's contentions, we find the joint notice of appeal to be sufficient with respect to the mother, notwithstanding any alleged defects in form (see CPLR 5520[c];  Matter of Eisner v. Eisner, 44 A.D.3d 1111, 1113 n., 844 N.Y.S.2d 447 [2005], lv. denied 9 N.Y.3d 816, 849 N.Y.S.2d 32, 879 N.E.2d 172 [2007] ).

MALONE JR., J.

CARDONA, P.J., MERCURE, SPAIN and LAHTINEN, JJ., concur.

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