IN RE: CADEJAH AA. and Another

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

IN RE: CADEJAH AA. and Another, Neglected Children. Alberta CC., Appellant; Otsego County Department of Social Services, Respondent.

Decided: November 30, 2006

Before:  CARDONA, P.J., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Mitch Kessler, Cohoes, for appellant. Chris Hammond, Otsego County Department of Social Services, Cooperstown, for respondent. Christopher A. Pogson, Law Guardian, Binghamton.

Appeal from an order of the Family Court of Otsego County (Burns, J.), entered February 16, 2006, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 10, for modification of a prior order of disposition.

Petitioner, acting pro se, filed a petition seeking to reopen and vacate an October 19, 2004 order of Family Court which was affirmed on her direct appeal (25 A.D.3d 1027, 809 N.Y.S.2d 598 [2006] ).   No responsive papers were filed and Family Court summarily dismissed the petition without a hearing, finding that it did not state a cause of action.   Petitioner appeals, and we affirm.

 To succeed in a collateral challenge to Family Court's previous order finding that petitioner had neglected her daughter, it was incumbent upon petitioner to demonstrate that her admissions supporting Family Court's findings were not knowingly made or to otherwise show “good cause” to vacate the order (Family Ct. Act § 1051[f];  § 1061;  see Matter of Jeffrey X. [Gerald X.], 283 A.D.2d 687, 688, 724 N.Y.S.2d 126 [2001] ).   To the extent that the petition challenges the sufficiency of the record in the neglect proceeding to support a finding that petitioner made knowing and voluntary admissions of neglect, that issue was previously decided on the direct appeal and cannot be relitigated here (see Hejna v. Reilly, 26 A.D.3d 709, 712, 810 N.Y.S.2d 242 [2006];  Etzel v. Etzel, 22 A.D.3d 906, 908, 803 N.Y.S.2d 219 [2005] ).

 Further, the allegations in this petition which were outside of the record on direct appeal are insufficient to demonstrate good cause to vacate Family Court's order.   One who seeks relief pursuant to Family Ct. Act § 1061 “ ‘is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing’ ” (Matter of Melissa FF. [Edward FF.], 285 A.D.2d 682, 683, 726 N.Y.S.2d 800 [2001], quoting Matter of Milhollen v. Voelpel, 270 A.D.2d 422, 423, 705 N.Y.S.2d 259 [2000] ).   The petition states, without any supporting papers or evidence, that prior to her appearance at the neglect proceeding petitioner was “ held against [her] will in a closed courtroom” by her attorney who demanded that she “lie to the court or [her] son would be taken from [her].”   This petition-submitted approximately 14 months following the entry of Family Court's order and containing allegations which are inconsistent with her sworn admission allocution-is insufficient, standing alone, to support vacatur or to trigger a duty by the court to hold an evidentiary hearing (see Matter of Melissa FF. [Edward FF.], supra at 683-684, 726 N.Y.S.2d 800;  see also People v. Passino, 25 A.D.3d 817, 818-819, 807 N.Y.S.2d 210 [2006] [County Court entitled to dismiss criminal defendant's CPL article 440 motion without an evidentiary hearing where motion was supported only by the defendant's own affidavit], lv. denied 6 N.Y.3d 816, 845 N.E.2d 1287 [2006];  People v. Woodard, 23 A.D.3d 771, 772, 803 N.Y.S.2d 776 [2005] [same], lv. denied 6 N.Y.3d 782, 811 N.Y.S.2d 349, 844 N.E.2d 804 [2006];  People v. Sayles, 17 A.D.3d 924, 924-925, 794 N.Y.S.2d 160 [2005] [same], lv. denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ).

ORDERED that the order is affirmed, without costs.



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