Opinion
2012-10-5
In the Matter of JOSEPH C.E., Respondent–Appellant. Thomas Roote, Petitioner–Respondent.
Appeal from an order of the Family Court, Livingston County (Dennis S. Cohen, J.), entered September 23, 2011 in a proceeding pursuant to Family Court Act article 7. The order, among other things, adjudged that respondent is a person in need of supervision.
John M. Lockhart, Attorney for the Child, Geneseo, for Respondent–Appellant.
MEMORANDUM:
Respondent appeals from an order adjudicating him a person in need of supervision and placing him on probation for a period of one year. At the outset, we note that, “[a]lthough the dispositional portion of the ... order ... has expired by its own terms, a review of [respondent's] adjudication as a person in need of supervision is not academic because of the possibility of collateral legal consequences resulting from the adjudication” (Matter of Leslie H. v. Carol M.D., 47 A.D.3d 716, 717, 849 N.Y.S.2d 612;seeFamily Ct. Act § 783).
Turning to the merits, we agree with respondent that Family Court erred in denying his motion to dismiss the petition. In a report attached to the petition, a representative of the Livingston County Probation Department (LCPD), the lead agency pursuant to Family Court Act § 735(a), stated in a conclusory manner that diversion services for respondent and his family were provided prior to the filing of the petition. “Thus, the petition failed to demonstrate that the LCPD had ‘exert[ed] what the statute refers to as documented diligent attempts to avoid the necessity of filing a petition’ ” (Matter of Nicholas R.Y. [Joanne Y.], 91 A.D.3d 1321, 1322, 937 N.Y.S.2d 654;see§ 735[b], [d] ). “[T]he failure to comply with such substantive statutory requirements constitutes a nonwaivable jurisdictional defect requiring dismissal of the petition” ( Nicholas R.Y., 91 A.D.3d at 1322, 937 N.Y.S.2d 654 [internal quotation marks omitted] ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.