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

753
CAF 10-02220
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


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


ARDETH L. HOUDE, ATTORNEY FOR THE CHILD, ROCHESTER, FOR
RESPONDENT-APPELLANT.


     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.

     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
