IN RE: DUANE D. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: DUANE D. (Anonymous), Appellant.

Decided: September 29, 1997

Before COPERTINO, J.P., and THOMPSON, FRIEDMANN and FLORIO, JJ. Alice A. Nicholson, New York City, for appellant.

In a proceeding pursuant to Family Court Act article 7, the appeal is from an order of fact-finding and disposition of the Family Court, Rockland County (Stanger, J.), dated July 6, 1994, which, upon the Law Guardian's partial admissions, adjudged the appellant to be a person in need of supervision and placed him in the custody of the Department of Social Services for a period of 18 months for the purpose of being placed with the Children's Home of Kingston.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the petition is dismissed.

We agree with the appellant's contention that the proceeding was so deficient as to render void the determination that he was a person in need of supervision.   The record shows that the partial admissions to the allegations contained in the petition were made by the Law Guardian and not the appellant.   Although the Law Guardian stated that she was making the admissions “after speaking to [the appellant]”, the record shows that the court never ascertained through allocution that the appellant admitted committing the acts alleged in the petition, that he voluntarily waived his rights to a fact-finding hearing, and that he was aware of the possible dispositional alternatives.   Accordingly, the court should not have accepted the admissions (see, Matter of Anthony D., 205 A.D.2d 533, 614 N.Y.S.2d 279;  Matter of Shawn D., 179 A.D.2d 755, 579 N.Y.S.2d 1010;  Matter of Paul H., 154 A.D.2d 943, 546 N.Y.S.2d 71;  Matter of Corey L., 133 A.D.2d 153, 518 N.Y.S.2d 826;  Matter of Diallo H., 94 A.D.2d 976, 464 N.Y.S.2d 102;  Matter of Kelly Sue N., 94 A.D.2d 976, 464 N.Y.S.2d 101).

However, since the appellant's placement period has terminated, the petition is dismissed, as remitting the matter for a new fact-finding determination is unnecessary (see, Matter of Anthony D., supra).


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