M., OMIA, MTR. OF ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
942
CAF 15-00684
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.
IN THE MATTER OF OMIA M., DE’KARI M., ARIEL M.,
AND DWAYNE M.
----------------------------------------------- MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
TYKIA B., RESPONDENT-APPELLANT.
EVELYNE A. O’SULLIVAN, EAST AMHERST, FOR RESPONDENT-APPELLANT.
ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER-RESPONDENT.
DEAN S. PULEO, ATTORNEY FOR THE CHILDREN, BUFFALO.
Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered January 26, 2015 in a proceeding pursuant to
Social Services Law § 384-b. The order denied respondent’s motion to
vacate an order approving respondent’s surrender of her parental
rights.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order denying her
motion pursuant to CPLR 5015 (a) to vacate an order approving her
conditional judicial surrender of parental rights with respect to her
five children (see Social Services Law § 383-c [3] [a], [b]). The
mother’s motion was based solely upon Family Court’s inherent power to
open its prior orders or judgments in the interest of justice (see
generally Oneida Natl. Bank & Trust Co. of Cent. N.Y. v Unczur, 37
AD2d 480, 483). Thus, the mother’s contention that she did not
knowingly enter into the surrender of her parental rights is raised
for the first time on appeal and therefore is not preserved for our
review (see generally Matter of Arkadian S. [Crystal S.], 130 AD3d
1457, 1458, lv dismissed 26 NY3d 995). In any event, that contention
is without merit. It is well settled that, in the absence of “fraud,
duress or coercion in the execution or inducement of a surrender[, n]o
action or proceeding may be maintained by the surrendering parent
. . . to revoke or annul such surrender” (§ 383-c [6] [d]). Here, the
mother failed to allege fraud, duress or coercion as a basis for
vacatur (see Matter of Sabrina H., 245 AD2d 1134, 1135). Moreover,
the record establishes that the court’s voir dire of the mother
substantially complied with the requirements of Social Services Law
§ 383-c (3) (b) (see Matter of Naquan L.G. [Carolyn C.], 140 AD3d 757,
-2- 942
CAF 15-00684
760).
Entered: November 18, 2016 Frances E. Cafarell
Clerk of the Court