        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

477
CAF 13-00249
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF XAVIER O.V.
-------------------------------------------
MONROE COUNTY DEPARTMENT OF HUMAN SERVICES,      MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

SABINO V., RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (ROBIN UNWIN OF
COUNSEL), FOR PETITIONER-RESPONDENT.

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Dandrea
L. Ruhlmann, J.), entered January 10, 2013 in a proceeding pursuant to
Family Court Act article 10. The order terminated the parental rights
of respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent father agreed to an adjournment in
contemplation of dismissal with respect to the allegations in a
neglect petition. Later, he consented to a finding that he had
permanently neglected the subject child and to the entry of a
suspended judgment based on that finding. He now appeals from an
order that, inter alia, revoked the suspended judgment, terminated his
parental rights with respect to the child, and freed the child for
adoption.

     We have frequently concluded that Family Court’s “prior order
finding permanent neglect and suspending judgment was entered on
consent of [the father] and thus is beyond appellate review” (Matter
of Bryan W., 299 AD2d 929, 930, lv denied 99 NY2d 506; see Matter of
Ronald O., 43 AD3d 1351, 1351-1352; Matter of Amanda T. [John T.], 4
AD3d 846, 846; Matter of Cherilyn P., 192 AD2d 1084, 1084, lv denied
82 NY2d 652). Here, however, the father contends that his consent to
the entry of the finding of permanent neglect was not given knowingly,
voluntarily and intelligently. The father “has raised that contention
for the first time on appeal . . . , and thus has failed to preserve
it for our review” (Matter of Atreyu G. [Jana M.], 91 AD3d 1342, 1342,
lv denied 19 NY3d 801; see Matter of Derrick T.M., 286 AD2d 938, 938-
                                 -2-                           477
                                                         CAF 13-00249

939; see also Matter of Megan L.G.H. [Theresa G.H.], 102 AD3d 869,
869) and, in any event, that contention is without merit. Although
the record reflects that the father initially hesitated and indicated
that he did not wish to admit any wrongdoing, he relented and agreed
to permit the court to make a finding of permanent neglect and to
enter a suspended judgment based on that finding. Contrary to the
father’s contention, “the proof does not show that ‘the consent was
[given] under compulsion or threat, or against [the father]’s free
will, or based upon fraudulent statements’ ” (Matter of Jarrett, 224
AD2d 1029, 1030, lv dismissed 88 NY2d 960; see generally Matter of
Seasia D., 10 NY3d 879, 880, rearg denied 11 NY3d 752, cert denied sub
nom. Kareem W. [Anonymous], 555 US 1046). Indeed, the record
establishes that the father was represented by counsel at the time of
his admission, and the father stated that he understood all the
proceedings because they were translated into Spanish, his native
language. Thus, we conclude that he knowingly, voluntarily and
intelligently agreed to the entry of a finding of permanent neglect
(see generally Matter of Aparicio Rodrigo B., 29 AD3d 351, 351).




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
