Matter of Casey
IN THE MATTER OF CASEY, 3 A.D.3d 785 [3d Dept 2004]
772 N.Y.S.2d 107
IN THE MATTER OF CASEY VV., A PERSON IN NEED OF SUPERVISION.
KATHRYN A. CHARBONNEAU, AS PROBATION OFFICER OF THE FULTON COUNTY PROBATION
DEPARTMENT, Respondent;
CASEY VV., Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
Decided and Entered: January 22, 2004.
Appeal from an order of the Family Court of Fulton County
(Jung, J.), entered June 3, 2003, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 7,
to revoke a prior order of probation and placed respondent in the
custody of the Fulton County Department of Social Services for a
period of one year.
Ellen S. Ross, Law Guardian, Johnstown, for appellant.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello,
JJ.
MEMORANDUM AND ORDER
Cardona, P.J.
In March 2003, respondent was adjudicated a person in need of supervision and placed on probation for one year. Thereafter, in
April 2003, petitioner filed a petition alleging that respondent
violated the terms and conditions of her probation.
After a hearing at which respondent's school psychologist
testified and various school reports were admitted into evidence,
Family Court determined that respondent violated the terms of her
probation. Although requested, respondent was precluded from
offering evidence in reference to a specific disposition and only
allowed to be heard in summation on an appropriate disposition.
The court revoked the prior dispositional order and placed
respondent in the custody of the Fulton County Department of
Social Services (hereinafter DSS) for a period of one year. On
appeal, respondent seeks reversal of the order of placement and
remittal for a dispositional hearing. She contends, among other
things, that Family Court erred when it denied her request to
introduce dispositional evidence.
Initially, petitioner has advised the Court by letter that "the
child has now returned home," and contends that the appeal has
been rendered moot, electing not to submit responding papers. We
note that the dispositional order has not expired by its own
terms. Moreover, our inability to discern from petitioner's
statement whether respondent has been released from DSS custody
and has been returned to the custody of her parent(s) precludes a
determination that respondent has been afforded all the relief
that she seeks on this appeal (cf.
Matter of Evan P.,
1 A.D.3d 831, 767 N.Y.S.2d 310, 310 [2003]). Therefore, we cannot say the
appeal has been rendered moot.
Addressing the merits of respondent's claim, we find that while
Family Ct Act § 779 does not specifically require a separate
dispositional hearing upon a finding of a violation of probation,
the parties should be given an opportunity to present evidence
relevant to a proper disposition (see
Matter of Josiah RR.,
277 A.D.2d 654, 654[2000]) in order to comply with the
requirements of due process (see Family Ct Act § 711). Because
respondent was not afforded that opportunity, the appropriate
remedy is to remit this matter for a new hearing (see
Matter of Josiah RR.,
supra at 654) unless the dispositional order
placing respondent in DSS custody has fully expired.
Mercure, Peters, Spain and Carpinello, JJ., concur.
ORDERED that the order is reversed, on the law, without costs,
and matter remitted to the Family Court of Fulton County for
further proceedings not inconsistent with this Court's decision.