| Matter of Brittny MM. |
| 2008 NY Slip Op 04585 [51 AD3d 1303] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of Brittny MM., a Person in Need of Supervision.Michele Clarke, as Probation Officer of the Columbia County Probation Department,Respondent; Brittny MM., Appellant. |
—[*1] Daniel J. Tuczinski, County Attorney, Hudson (Clarissa D. Garvey of counsel), forrespondent.
Stein, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.), enteredJuly 3, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 7, to revoke an order of probation and place respondent in the custody of the ColumbiaCounty Department of Social Services for a period of 12 months.
In June 2006, respondent (born in 1989) was adjudicated a person in need of supervision(hereinafter PINS) and was placed in the custody of the Columbia County Department of SocialServices (hereinafter DSS) for a period of 12 months, ending on June 19, 2007. Thereafter, uponthe petition of DSS and with respondent's consent, Family Court entered an order on April 3,2007, terminating the order of placement as of March 6, 2007 and placing respondent onprobation until June 19, 2007.
On June 4, 2007, petitioner filed a petition alleging that respondent had violated the termsand conditions of her probation and Family Court signed a declaration of delinquency. At [*2]the commencement of the fact-finding hearing, respondent movedto dismiss count one of the petition on the grounds that the alleged acts occurred after she hadreached the age of 18. Family Court denied the motion and, at the conclusion of the hearing,sustained the petition on all counts.
Respondent then moved by order to show cause to dismiss the petition, terminate theproceeding and vacate all orders entered subsequent to March 6, 2007, including that part of theorder entered April 3, 2007 which placed respondent on probation. Family Court denied themotion. By order entered July 3, 2007,[FN1] Family Court found that respondent had violated the terms and conditions of her probation andplaced her in the custody of DSS for a period of 12 months. Respondent now appeals.
Respondent's principal argument is that Family Court had no jurisdiction over respondentonce she attained the age of 18 and, therefore, Family Court was required to dismiss the violationof probation petition which was filed after her 18th birthday, and all orders made after May 20,2007 were improper. Initially, we note that, although respondent's placement was terminatedafter this appeal was filed, effective February 1, 2008, this appeal is not moot because FamilyCourt's finding that respondent violated the terms and conditions of her probation, and theresulting order of placement, may have collateral legal consequences (see Family Ct Act§ 783; Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter ofShannon F., 276 AD2d 847, 848 [2000]; Matter of Reed v Reed, 240 AD2d 951, 952[1997]; Matter of Tabitha LL., 216 AD2d 651, 653 [1995], affd 87 NY2d 1009[1996]).
In order to determine whether Family Court properly entertained the violation of probationpetition, we must first determine whether a valid order placing respondent on probation was inexistence. We find nothing in Family Ct Act § 757 which precludes an order of probationfrom extending beyond a child's 18th birthday (see generally Matter of Amy Beth G., 136Misc 2d 85, 86 [1987]; McKinney's Cons Laws of NY, Book 1, Statutes § 74), particularlywhere, as here, respondent consented to the order. We also note that there is no age-limitinglanguage in any of the statutes pertaining to initial dispositions on PINS adjudications set forth inFamily Ct Act § 754 (see Family Ct Act §§ 755, 756, 757). The onlysuch language appears in Family Ct Act § 714 (b) (concerning initial PINS petitions) andFamily Ct Act § 756-a (f) (pertaining to extensions of placement); neither of thoseprovisions is applicable here.
Under these circumstances, the Legislature could not have intended to permit an order ofprobation to remain in effect in the absence of judicial authority to enforce such order (seegenerally Matter of Medical Socy. of State of N.Y. v State of N.Y. Dept. of Health, 83 NY2d447, 451-452 [1994]). Thus, we find that respondent remained under the jurisdiction of FamilyCourt until June 19, 2007, that the filing of a violation petition, as well as the making of adeclaration of delinquency,[FN2] at any time prior to that date was permissible, and that the court was[*3]"authorized to make a determination on the violation petition and toorder an appropriate disposition after respondent turned 18" (Matter of Carliesha C., 17 AD3d 1057, 1058 [2005]).[FN3] Likewise, we find that the violations of probation which were alleged to have occurred afterrespondent turned 18, but before the order of probation expired, were properly before the court.
However, Family Court erred in placing respondent in the custody of DSS for an additionalperiod of 12 months. Upon a finding of a violation of an order of probation, "the court mayrevoke the order of probation and proceed to make any order that might have been made at thetime the order of probation was entered" (Family Ct Act § 779). We reject petitioner'sargument that this allows Family Court to make any order of disposition authorized by Family CtAct § 754. Here, the order of probation was made pursuant to Family Ct Act § 767upon a petition to terminate placement. The only authorized dispositions at that timewould have been to continue the existing order of placement, with or without modifications(see Family Ct Act § 767 [a]), or to place respondent under probation or courtsupervision (see Family Ct Act § 767 [b]). Thus, when Family Court determinedon June 18, 2007 that respondent had violated the terms and conditions of her probation, the onlypossible dispositions were to either resume the initial placement until June 19, 2007 as originallyordered, continue respondent's probation or place her under court supervision until that date.Placement for 12 months was clearly not authorized, nor was detention beyond June 19, 2007.Thus, that portion of the order which directed placement must be reversed.
The parties' remaining contentions, to the extent not addressed herein, have been renderedacademic by our decision or have been found to be lacking in merit.
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as directed that respondent be placed inthe custody of the Columbia County Department of Social Services, and, as so modified,affirmed.
Footnote 1: This order was initially made onthe record in open court on June 18, 2007.
Footnote 2: In fact, the Legislature removedthe age-limiting language from Family Ct Act § 779-a in 1996 (see L 1996, ch 309,§ 35).
Footnote 3: We recognize that there areapparent inconsistencies between Family Ct Act articles 3 and 7 and among the statutes includedin Family Ct Act article 7 themselves—particularly in light of the amendments to thatarticle which became effective in 2002 (see L 2000, ch 596; L 2001, ch383)—which may warrant further legislative action. However, it is not necessary for us toreconcile those inconsistencies at this time based on the facts presented herein.