Opinion
CAF 05-02389.
March 17, 2006.
Appeal from an order of the Family Court, Monroe County (Joan S. Kohout, J.), entered May 19, 2005 in a proceeding pursuant to Family Court Act article 3. The order adjudged that respondent is a juvenile delinquent and placed him in the custody of the New York State Office of Children and Family Services for a period of 12-months.
ARDETH L. HOUDE, LAW GUARDIAN, ROCHESTER, FOR RESPONDENT-APPELLANT. DANIEL M. DE LAUS, COUNTY ATTORNEY, ROCHESTER (KIM KOSKI TAYLOR OF COUNSEL), FOR PETITIONER-RESPONDENT.
Present: Hurlbutt, J.P., Scudder, Kehoe, Green and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Respondent was adjudicated a juvenile delinquent upon his admission that he committed an act constituting the crime of unlawful possession of a weapon by a person under 16 (Penal Law § 265.05). That act was committed when respondent was on probation as the result of a prior delinquency adjudication. Following a dispositional hearing, Family Court ordered that respondent be placed in the custody of the New York State Office of Children and Family Services (OCFS) for a period of 12 months. We reject the contention of respondent that the court erred in failing to consider a more intensive probation program before placing him with OCFS. The record at the hearing established that probation had not been successful for respondent, and "[t]he least restrictive alternative test does not require the court to actually try the lowest form of intervention, have it fail, and then try each succeeding level of intervention before ordering . . . placement" ( Matter of Anthony M., 142 AD2d 731, 732). The record further establishes that no private placements were available because of respondent's high-risk behavior and that OCFS has appropriate resources and programs to address respondent's needs ( see Matter of Todd B. [appeal No. 2], 190 AD2d 1035, 1036). Thus, we conclude "that the court properly ordered the least restrictive available alternative that `is consistent with the needs and best interests of the respondent and the need for protection of the community'" ( Matter of Richard W., 13 AD3d 1063, 1064, quoting Family Ct Act § 352.2 [a]). Finally, respondent failed to preserve for our review his contention that the court should have ordered a mental health evaluation for respondent before determining that he should be placed with OCFS ( see generally Matter of Borggreen v. Borggreen, 13 AD3d 756, 757; Matter of Eugene S., 200 AD2d 574, 575).