In the Matter of Alexander C. (anonymous)
| Decision Date | 26 April 2011 |
| Citation | 2011 N.Y. Slip Op. 03595,83 A.D.3d 1058,922 N.Y.S.2d 186 |
| Parties | In the Matter of ALEXANDER C. (Anonymous), appellant. |
| Court | New York Supreme Court — Appellate Division |
83 A.D.3d 1058
922 N.Y.S.2d 186
2011 N.Y. Slip Op. 03595
In the Matter of ALEXANDER C. (Anonymous), appellant.
Supreme Court, Appellate Division, Second Department, New York.
April 26, 2011.
[922 N.Y.S.2d 186]
George E. Reed, Jr., White Plains, N.Y., for appellant.James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Linda D. Fakhoury of counsel), for respondent.PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN and ROBERT J. MILLER, JJ.
[83 A.D.3d 1058] In a proceeding pursuant to Family Court Act article 7, Alexander C. appeals from an order of fact-finding and disposition of the Family Court, Dutchess County (Sammarco, J.), dated July 2, 2010, which, after fact-finding and dispositional hearings, and upon his admission to truancy, adjudicated him to be a person in need of supervision and directed that he be placed in the custody of the Dutchess County Commissioner of Social Services for a period of up to 12 months.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The appellant's attorney contends that the order should be [83 A.D.3d 1059] reversed because the Family Court determined the instant petition
[922 N.Y.S.2d 187]
on the merits, despite the facts that the Dutchess County Department of Social Services made an initial determination that a child protective service report involving the child was warranted, no neglect proceeding was ever commenced, and the Family Court failed to consider the services that would have been required had a neglect proceeding been commenced. These contentions are unpreserved for appellate review. The appellant's attorney at the hearing never argued to the Family Court that a neglect petition should have been filed, rather than a proceeding to designate the appellant a person in need of supervision (hereinafter PINS), and never requested that the Family Court substitute a neglect petition for the PINS petition.
In any event, these contentions are without merit. Although Family Court Act § 716 provides that the Family Court, on its own motion and at any time in the proceedings, may substitute a neglect petition for a PINS petition, the Family Court did not err in failing to do so here. There is no evidence in the record that the conduct underlying the basis for the PINS petition, specifically the appellant's admitted truancy, was attributable or related to an act of abuse or neglect ( see Matter of Lynette YY. [ Holly ], 299 A.D.2d 753, 751 N.Y.S.2d...
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