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In the Matter of Rhea L.W v. Niagara County Attorney

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 10, 2011

IN THE MATTER OF RHEA L.W.,
RESPONDENT-APPELLANT.
v.
NIAGARA COUNTY ATTORNEY,
PETITIONER-RESPONDENT.

Appeal from an order of the Family Court, Niagara County (John F. Batt, J.), entered October 19, 2010 in a proceeding pursuant to Family Court Act article 3. The order, among other things, found that respondent had willfully violated an order of conditional discharge and placed her in the custody of the New York State Office of Children and Family Services.

Matter of Rhea L.W. v Houde

Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 10, 2011

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Respondent contends that Family Court erred in revoking an order of conditional discharge based on its finding that she violated a condition directing her to enroll in a specified private facility for troubled youth. We agree with respondent that petitioner failed to meet its burden of establishing that she willfully violated that condition (see generally Family Ct Act § 360.3 [1]; Matter of Anthony M., 81 AD3d 1205, 1206). Indeed, petitioner's own evidence at the hearing on the petition established that respondent took the steps required of her but was unable to enroll in the facility because her mother could not afford the fees. The court, therefore, should have dismissed the petition.

In view of our decision, we do not address respondent's challenge to the dispositional portion of the order.

Entered: June 10, 2011

Patricia L. Morgan Clerk of the Court

20110610

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