In re Tiahek Q. , 178 A.D.2d 1020 ( 1991 )

— Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings, in accordance with the following Memorandum: After a fact-finding hearing on a juvenile delinquency petition, respondent was adjudicated a Person in Need of Supervision and placed accordingly (see, Family Ct Act § 311.4 [2]). On a subsequent petition to transfer respondent to a more structured facility, the court was advised that the only available placement was with the Division for Youth as a juvenile delinquent. The court then readjudicated respondent a juvenile delinquent in order to place him in a more structured facility.

The court had no authority to readjudicate respondent a juvenile delinquent in order to facilitate a transfer. The court had authority to order a transfer only if it "was authorized to make such placement upon the original adjudication” (Family Ct Act § 775 [a] [ii]). Moreover, there is no provision in the Family Court Act authorizing the court to substitute a finding that respondent is a juvenile delinquent for a finding that the respondent is a Person in Need of Supervision (cf., Family Ct Act § 311.4 [2]).

Accordingly, the adjudication of respondent as a juvenile delinquent is hereby vacated and this matter is remitted for a hearing pursuant to Family Court Act § 775 so that a proper transfer can be based upon respondent’s adjudication as a Person in Need of Supervision. (Appeal from Order of Erie County Family Court, Manz, J. — Modification of Court Order.) Present — Denman, P. J., Boomer, Pine, Lawton and Davis, JJ.