In re Tommie L. ( 1992 )

OPINION OF THE COURT

Michael J. Miller, J.

In this juvenile delinquency proceeding, respondent, Tommie L., was placed in the custody of the Commissioner of Social Services for placement with St. Joseph’s Villa by order of disposition dated March 29, 1992. St. Joseph’s Villa has now filed the instant petition entitled "Violation of Order of Disposition” requesting that because of respondent’s behavior at St. Joseph’s Villa the existing dispositional order be modified, set aside and/or vacated.

Respondent, through his Law Guardian, has moved to have the violation petition dismissed. Respondent bases his motion on the grounds that St. Joseph’s Villa lacks standing to bring a motion to modify, set aside and/or vacate the court’s existing dispositional order. The court agrees. The instant petition brought by St. Joseph’s Villa is dismissed without prejudice to the Department of Social Services to bring an appropriate motion to modify, set aside or vacate the existing dispositional order pursuant to Family Court Act §§ 353.3 and 355.1. These sections of the Family Court Act are very specific as to who may bring this type of motion. The facility with which a respondent is placed pursuant to a dispositional order is not one of the petitioners enumerated in those statutes. Petitioner argues that local practice has been to allow motions such as this to be brought by the facility in which respondent has been placed. However, this is the first time the practice has been challenged and clearly local practice must yield where valid legal objection is raised.

In light of the above, it is unnecessary for the court to decide respondent’s other arguments for dismissal.