As Family Court noted, this provision is inapplicable here inasmuch as there is no circumstance under which a District Attorney's office could represent a party in a custody proceeding. District Attorneys prosecute crimes and offenses occurring in the county where elected and, even in that capacity, act not on behalf of any particular person, but on behalf of the State of New York (see County Law ยง 700, 927 ; Della Pietra v. State of New York, 71 N.Y.2d 792, 796, 530 N.Y.S.2d 510, 526 N.E.2d 1 [1988] ; Matter of Matthew FF., 179 A.D.2d 928, 928โ929, 579 N.Y.S.2d 178 [1992] ). In short, the subject portion of this Court's rule was meant to prevent a governmental attorney from serving as an attorney for the child in a Family Court proceeding in which his or her office could appear on behalf of a partyโsuch as in a juvenile delinquency or Family Ct. Act article 10 neglect or abuse proceeding (see Family Ct. Act ยงยง 254, 254โa, 301.2 [12 ]; 1032)โa situation that plainly does not exist here.
First, we are unpersuaded that Family Court erred in not permitting the mother to question petitioner's witness regarding why a neglect petition was filed rather than a person in need of supervision (hereinafter PINS) petition. The mother failed to articulate the relevance of this line of questioning and, in any event, even if a PINS proceeding had been commenced, Family Court would have had authority to substitute a neglect petition for the PINS petition once neglect became apparent ( see Family Ct Act ยง 716; Matter of Matthew FF., 179 AD2d 928, 929). The second evidentiary argument is without merit.
Likewise unpersuasive is respondent's claim that Family Court abused its discretion in denying a motion to substitute the PINS petition with a neglect petition pursuant to Family Ct Act ยง 716. Although Family Court was certainly vested with discretion to grant this motion ( see Matter of Nicholas X., 262 AD2d 683, 684), the facts before the court failed to substantiate any notion that substitution was a "more appropriate" resolution (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act ยง 716, at 35, 37). In other words, the evidence before Family Court did not establish that respondent's conduct underlying the PINS petition โ which included stealing the all-terrain vehicle for the purpose of obtaining marihuana โ was itself directly attributable to parental neglect ( see Matter of Nicholas X., 262 AD2d at 684; Matter of Jeremiah RR., 260 AD2d 676, 678; Matter of Jeanne TT., 184 AD2d 895, 896; Matter of Brittany H., 184 AD2d 903, 903-904; Matter of Matthew FE, 179 AD2d 928, 929). We are thus satisfied, as was Family Court, that the PINS proceeding was an appropriate response to respondent's misbehavior and problems, independent of any claimed parental neglect ( see Matter of Lanair S., 206 AD2d 944; Matter of Brittany H., 184 AD2d at 904).
Thus, at the time of questioning, DSS was performing its role as the person legally responsible for respondent, not acting as respondent's attorney. Moreover, respondent does not allege that petitioner used any information obtained to gain an unfair advantage in the prosecution of the juvenile delinquency petition ( see Matter of Matthew FF., 179 AD2d 928, 928-929). Respondent's remaining contentions, to the extent not addressed herein, have been considered and found to be unavailing.
We affirm. Initially, we reject respondent's contention that Family Court erred in failing to substitute a neglect petition under Family Court Act article 10 for the PINS petition brought under Family Court Act article 7. Although Family Court indeed is vested with such discretion (see, Family Ct Act ยง 716), the record before us fails to substantiate respondent's assertion that his admitted truancy was attributable to an act of parental abuse or neglect (see, Matter of Sandra I., 245 A.D.2d 655, 655-656;Matter of Jeanne TT., 184 A.D.2d 895, 896; Matter of Matthew FF. [Joanne FF.], 179 A.D.2d 928, 929; compare, Matter of Paul H., 47 A.D.2d 853, 854). Our further review of the record leads us to conclude that respondent's remaining contentions, including his assertion that the disposition ordered by Family Court was inappropriate, are lacking in merit. ORDERED that the order is affirmed, without costs.
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 KeithH., 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).
The record establishes that respondent is in need of supervision, and particularly needs the type of structured setting available at Hillside Children's Center. If the court had granted respondent's request for substitution, a new proceeding would have delayed the matter and resulted in forfeiture of respondent's placement at Hillside. The court did not abuse its discretion in taking those considerations into account and refusing to substitute a neglect petition for the PINS petition (see, Family Ct Act ยง 716; Matter of Brittany H., supra; cf., Matter of Jeanne TT., 184 A.D.2d 895; Matter of Matthew FF., 179 A.D.2d 928).
Initially, we reject respondent's assertion that Family Court declined to impose a more lenient disposition due to the court's alleged misconception regarding its ability to retain jurisdiction over respondent once he reached his 16th birthday. Assuming this argument has been preserved for our review (see, Matter of Matthew FF., 179 A.D.2d 928), we find that the record fails to support it. A fair reading of the record plainly reveals that Family Court was principally concerned that if it ordered a more experimental disposition for respondent that later proved unsuccessful, it would be very difficult, as a practical matter, to find a suitable placement for respondent on the eve of his 16th birthday. Such a concern on Family Court's part hardly translates into a misconception regarding the scope of its jurisdiction.
The father asserts that the Law Guardian's representation of Lisa S. presented a conflict of interest. Since the father did not raise this objection before Family Court, he failed to preserve the issue for appellate review (see, Matter of Matthew FF., 179 A.D.2d 928). In any event, the father's argument is without merit.
We affirm. Initially, the contention that the County Attorney's prior prosecution of respondent's father on an abuse petition created a conflict of interest which prevented him from prosecuting this PINS petition has not been preserved for appellate review by timely objection below (see, Matter of Matthew FF., 179 A.D.2d 928) and is meritless in any event (see, supra; see also, Matter of Jeanne TT., 184 A.D.2d 895 [decided herewith]). We also reject the contentions that Family Court abused its discretion in refusing to substitute a neglect petition for the PINS petition and that the evidence was legally insufficient to support the PINS adjudication. The hearing evidence showed that during the 1989-1990 school year respondent missed over 60 days of school, was tardy an additional six times and failed all of her courses.