Opinion
406 CAF 18–02026
04-26-2019
In the MATTER OF HAYDEN B.S., Respondent–Respondent. Steuben County Attorney, Petitioner–Appellant.
ALAN P. REED, COUNTY ATTORNEY, BATH (CRAIG A. PATRICK OF COUNSEL), FOR PETITIONER–APPELLANT. PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–RESPONDENT.
ALAN P. REED, COUNTY ATTORNEY, BATH (CRAIG A. PATRICK OF COUNSEL), FOR PETITIONER–APPELLANT.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following memorandum: In this juvenile delinquency proceeding pursuant to Family Court Act article 3, petitioner appeals from an order that dismissed the petition as defective because petitioner "did not make a showing to [Family Court] that a diligent attempt to notify [r]espondent's father of the appearance had been made." Preliminarily, we note that, contrary to the contention of respondent, petitioner is, for the purposes of this appeal, aggrieved by the dismissal of the petition notwithstanding that the petition was dismissed without prejudice (see generally Kirby v. Kenmore Mercy Hosp. , 122 A.D.3d 1284, 1284–1285, 996 N.Y.S.2d 822 [4th Dept. 2014] ; Allen v. General Elec. Co. , 11 A.D.3d 993, 994, 782 N.Y.S.2d 330 [4th Dept. 2004] ). A party is aggrieved when it requests relief and that relief is denied in whole or in part (see Benedetti v. Erie County Med. Ctr. Corp., 126 A.D.3d 1322, 1323, 5 N.Y.S.3d 746 [4th Dept. 2015] ; see generally CPLR 5511 ). We agree with petitioner that the court erred in dismissing as defective the petition. Article 3 of the Family Court Act provides in relevant part that, "[a]fter a petition has been filed, the court may cause a copy thereof and a summons to be issued, requiring the respondent personally and his parent or other person legally responsible for his care ... to appear for the initial appearance" (§ 312.1[1] ). The purpose of that provision is to facilitate the requirements that "the respondent's parent or other person responsible for his or her care ... be present at any hearing under [that] article and at the initial appearance" (§ 341.2[3] ) and be notified of respondent's rights (see § 320.3). Here, the petition included an address for respondent's mother, the custodial parent, who was served and appeared in court, thus ensuring the presence of a parent or responsible adult to help the juvenile respondent understand the proceedings and safeguard his legal rights (see generally § 320.3; Matter of Myacutta A., 75 A.D.2d 774, 774–775, 428 N.Y.S.2d 231 [1st Dept. 1980] ).
Contrary to the court's determination, neither Matter of Gault, 387 U.S. 1, 31–34, 87 S.Ct. 1428, 18 L.Ed.2d 527 [1967] nor any of the other cases cited by the parties require a petitioner to provide notification of a juvenile delinquency proceeding to more than one parent or guardian (see e.g. Matter of Nikim M., 144 A.D.3d 424, 424–425, 41 N.Y.S.3d 474 [1st Dept. 2016] ; Matter of Alexander B., 126 A.D.3d 533, 534, 5 N.Y.S.3d 423 [1st Dept. 2015] ; Matter of John L., 125 A.D.2d 472, 472–473, 509 N.Y.S.2d 398 [2d Dept. 1986] ; Matter of Tracy B., 80 A.D.2d 792, 792, 437 N.Y.S.2d 90 [1st Dept. 1981] ; Myacutta A., 75 A.D.2d at 774–775, 428 N.Y.S.2d 231 ; cf. Family Ct Act § 1035[d] ; Matter of Felicia C., 178 A.D.2d 530, 530, 577 N.Y.S.2d 148 [2d Dept. 1991] ; Matter of Lloyd P., 99 A.D.2d 812, 813, 472 N.Y.S.2d 142 [2d Dept. 1984] ) or to show that it has made "diligent attempt[s]" to notify more than one parent or guardian of respondent's need to appear in Family Court. We therefore reverse the order, reinstate the petition, and remit the matter to Family Court for further proceedings on the petition.
We have reviewed respondent's alternative grounds for affirmance (see generally Parochial Bus. Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ) and conclude that they lack merit.