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

774
CAF 13-01206
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ANNABELLA B.C.
------------------------------------------
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
                                                  MEMORANDUM AND ORDER
SANDRA L.C., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


ALAN BIRNHOLZ, EAST AMHERST, FOR RESPONDENT-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID E. BLACKLEY, ATTORNEY FOR THE CHILD, LOCKPORT.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered June 5, 2013 in a proceeding pursuant to Family
Court Act article 10. The order, among other things, adjudged that
respondent had neglected the subject child.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: In appeal No. 1, respondent appeals from an order of
fact-finding and disposition entered on consent of the parties and the
Attorney for the Child determining that her daughter is a neglected
child (see Family Ct Act § 1051 [a]). In appeal No. 2, respondent
appeals from an order settling the record on appeal. Family Court
refused to include in the record on appeal the transcript of a
proceeding before a court attorney referee two months after the
court’s determination wherein respondent told the referee that she
consented to the order because she was coerced by her attorney to do
so.

     Addressing first the order in appeal No. 2, contrary to
respondent’s contention, the court properly refused to include the
transcript in the record on appeal in appeal No. 1 inasmuch as the
court’s determination in appeal No. 1 was not based upon that
information (see Balch v Balch [appeal No. 2], 193 AD2d 1080, 1080;
see also Matter of Cicardi v Cicardi, 263 AD2d 686, 686; see generally
Paul v Cooper [appeal No. 2], 100 AD3d 1550, 1551, lv denied 21 NY3d
855). Inasmuch as the order at issue in appeal No. 1 was entered upon
the consent of the parties, appeal No. 1 must be dismissed (see Matter
of Holly B. [Scott B.], 117 AD3d 1592, 1592; Matter of Cherilyn P.,
                                 -2-                          774
                                                        CAF 13-01206

192 AD2d 1084, 1084, lv denied 82 NY2d 652).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
