Opinion
October 19, 1995
Appeal from the Family Court of Madison County (O'Brien, III, J.).
Family Court adjudicated respondent a person in need of supervision (hereinafter PINS) and, following a dispositional hearing, determined that he should be placed in a residential facility for 18 months. Respondent now appeals, focusing primarily on the quality of his former Law Guardian's representation and Family Court's order of disposition.
Although the notice of appeal is premature, in the interest of justice we will deem it valid ( see, Matter of Charles BB., 179 A.D.2d 904, 905).
Respondent's first argument is that he was denied the right to present a defense since neither his Law Guardian nor Family Court ordered a psychological evaluation, which may have shown that his behavior was not willful as he may suffer from a learning or developmental disability. Respondent is precluded from raising this issue on appeal since he did not raise it before Family Court ( see, Matter of Lisa S. v. William S., 187 A.D.2d 435, 436; Matter of Matthew FF., 179 A.D.2d 928). In any event, assuming this constitutional right applies to a PINS proceeding ( see, Matter of Cecilia R., 36 N.Y.2d 317, 320; Matter of Keith H., 188 A.D.2d 81, 84), respondent's argument is meritless because Family Court did not preclude him from seeking a psychological evaluation ( see, People v. Gonzalez, 184 A.D.2d 579, lv denied 80 N.Y.2d 904). Moreover, there was no reason for Family Court, sua sponte, to have ordered such an evaluation during the course of the fact-finding hearing, as there are no indications in the record that respondent was unable to understand or fully participate in the proceeding ( compare, Matter of Ardon II., 175 A.D.2d 355).
Respondent next argues that the dispositional hearing was insufficient due to Family Court's failure to consider less restrictive alternatives to residential placement. This argument's premise is faulty since the "`least restrictive analysis'" does not apply to PINS proceedings ( Matter of April FF., 195 A.D.2d 860). Instead, Family Court is obliged to consider the needs and best interests of the respondent as well as the need for protection of the community ( see, Matter of Lee V., 203 A.D.2d 639, 640; Matter of April FF., supra, at 861).
Family Court determined that residential placement was warranted in this instance in light of respondent's serious behavioral problems, including physical abuse of fellow students and a history of juvenile offenses. These factors, together with the lack of parenting skills of respondent's mother, her failure to seek mental health therapy or counseling for respondent despite having opportunities to do so, and the presence in the home of respondent's older brother who is pursuing an aimless life oftentimes involving criminality, led Family Court to conclude that respondent's home life lacked the discipline and structure he needed. While respondent contends that Family Court placed undue emphasis on his home life, its assessment of his home environment was entirely appropriate since it bore directly on the issue of the necessity of a residential placement. Thus, inasmuch as Family Court's findings are supported by the record, we conclude that it appropriately exercised its discretion in this matter ( see, Matter of Charles EE., 195 A.D.2d 725, 726; Matter of Robert U., 192 A.D.2d 760, 761, lv denied 82 N.Y.2d 653, appeal dismissed 82 N.Y.2d 748).
Lastly, we reject respondent's argument that his former Law Guardian did not provide him with effective assistance since the record, viewed in its entirety, discloses that the Law Guardian was prepared and employed basic advocacy skills in support of respondent's interests ( see, Matter of Ashley AA., 212 A.D.2d 937, 939; cf., Matter of Jamie TT., 191 A.D.2d 132, 137).
For these reasons, we affirm Family Court's order.
Cardona, P.J., Mercure, Peters and Spain, JJ., concur. Ordered that the order is affirmed, without costs.