                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517214
________________________________

In the Matter of TREVOR MM.,
   a Juvenile Delinquent.

PENNIE HUBER, as Sullivan
   County Probation Officer,                MEMORANDUM AND ORDER
                    Respondent;

TREVOR MM.,
                    Appellant.
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Calendar Date:   June 4, 2014

Before:   Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                             __________


     Clifford Gordon, Monticello, for appellant.

      Sam Yasgur, County Attorney, Monticello (Glen Rosenstein of
counsel), for respondent.

                             __________


Clark, J.

      Appeals from two orders of the Family Court of Sullivan
County (Meddaugh, J.), entered July 24, 2013, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 3, to find respondent in
violation of a prior order of probation, and placed respondent in
the custody of the Sullivan County Department of Family Services
for a period of one year.

      After having been adjudicated a juvenile delinquent,
respondent (born in 1999) was placed on a 12-month term of
probation. The terms of his probation included, among other
things, abiding by household rules, regular school attendance and
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compliance with all school regulations. In April 2013,
petitioner commenced the instant proceeding seeking revocation of
respondent's probationary status. The petition alleged that
respondent was in violation of the conditions of his probation
inasmuch as he, among other things, had been accused of the
crimes of making a terrorist threat and petit larceny, had
repeatedly been absent from school and had not been compliant
with either school or household rules.

      Upon accepting respondent's admissions to certain probation
violations, Family Court conducted a dispositional hearing at the
close of which the court concluded that residential placement for
a period of one year was warranted. Instead of immediately
placing respondent in the physical care of the Sullivan County
Department of Family Services (hereinafter DFS), however, the
court gave respondent the opportunity to continue living at home
with his mother, and to prove to the court that placement was not
necessary by complying with the terms of his probation during the
time that it would take DFS to secure a residential placement.
Shortly thereafter, Family Court received correspondence from
petitioner indicating that respondent continued to regularly
violate the terms of his probation. In two orders, Family Court
ordered residential placement for respondent and nonsecure
detention until such residential placement could be obtained.
Respondent now appeals from both orders.

      The sole issue on appeal is whether Family Court abused its
discretion when, upon respondent's admission to willful
violations, it ordered respondent's placement with DFS rather
than continuing him on probation in the custody of his mother.
Once respondent admitted to violating conditions of his
probation, "Family Court was authorized to revoke the order of
probation" (Matter of Dillon Z., 44 AD3d 1192, 1194 [2007]; see
Family Ct Act § 360.3 [6]). The court was then required to issue
a new dispositional order in accordance with Family Ct Act
§ 352.2, which requires that the court "order the least
restrictive available alternative . . . consistent with the needs
and best interests of the respondent and the need for protection
of the community" (Family Ct Act § 352.2 [2] [a]; accord Matter
of Dillon Z., 44 AD3d at 1194). In that regard, however, "[i]t
is well settled that a less restrictive option need not be
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utilized unsuccessfully before a more restrictive option may be
imposed" (Matter of Tianna W., 108 AD3d 948, 949 [2013]; see
Matter of Anthony E., 82 AD3d 1544, 1546 [2011]).

      Here, upon adjudicating respondent a juvenile delinquent,
Family Court originally imposed the disposition of probation.
Inasmuch as that disposition proved to be unsuccessful, we reject
respondent's argument that probation should have been continued
as the least restrictive alternative consistent with his best
interests. Specifically, in light of the ample proof of
respondent's repeated noncompliance with the conditions of his
probation, as well as his failure to change his course of conduct
and demonstrate cooperation despite being afforded an additional
chance during the time that DFS sought residential placement, we
conclude that Family Court's order of disposition was proper in
light of the totality of the circumstances (see Matter of Anthony
E., 82 AD3d at 1546-1547). The probation report recommending
residential placement, the testimony of respondent's mother
regarding his noncompliant behavior and her difficulties in
getting him to school, and the evidence that respondent continued
to fail even with the support of probation, collectively
demonstrate that residential placement was the least restrictive
alternative available here (see Matter of Abram E., 69 AD3d 1006,
1007 [2010]; Matter of Dillon Z., 44 AD3d at 1194-1195).
Finally, while the record reflects that respondent's mother had
made significant positive efforts despite her own personal
challenges, she appeared unable to provide the structure and
supervision necessary for respondent. Accordingly, Family
Court's decision to opt against placement in the mother's care in
favor of placement with DFS was not an abuse of discretion (see
Matter of Tasha RR., 50 AD3d 1218 [2008]).

     Peters, P.J., Stein, Rose and Egan Jr., JJ., concur.
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ORDERED that the orders are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
