Opinion
January 31, 1977
Appeal from an order of the Family Court, Kings County, dated October 25, 1976, which, upon a determination, made after a fact-finding hearing, that appellant had committed acts which, if done by an adult, would constitute certain crimes, adjudicated him to be a juvenile delinquent and placed him with the New York State Division for Youth. Order reversed, without costs or disbursements, and proceeding remitted to the Family Court for further proceedings consistent herewith. On February 9, 1976 a juvenile delinquency petition, the first against appellant, was filed in the Family Court. Appellant was paroled on several court dates until March 12, 1976 when, because his mother had failed to appear for a trial on three successive dates, a guardian ad litem was appointed for him and a fact-finding hearing was held. After a fact-finding determination was made, appellant was paroled; he returned to the court on five adjourned dates. Each time appellant's mother failed to appear. A warrant for her arrest was issued and she appeared in the Family Court on October 25, 1976. A dispositional hearing was then held. Appellant's mother testified that appellant was living with his aunt and that "I want this kid to be put away today." She also expressed concern that she might have to return to court and miss another day of work. Appellant's aunt did not want to remain responsible for him. The court adjudicated appellant to be a juvenile delinquent and placed him with the Division for Youth. Section 716 FCT of the Family Court Act "recognizes that some children are juvenile delinquents because they are neglected and that they can be better treated as neglected children" (Matter of Richard C., 43 A.D.2d 862). In light of the mother's failure to voluntarily appear in court and shelter appellant, and her insistence that appellant be sent away, it was an abuse of the court's discretion to fail to substitute a neglect petition in this case (see Matter of Richard C., supra; Matter of Paul H., 47 A.D.2d 853). Latham, Acting P.J., Margett, Suozzi and Mollen, JJ., concur.