In re Donna H.

¶1dissents in part in a memorandum, as follows: I would affirm the disposition made by the Family Court. The Family Court Judge made a conscientious, painstaking effort extending over three days of hearings to arrive at a disposition which would give due consideration to the two fundamental concerns mandated by section 711 of the Family Court Act, the needs and best interests of the juvenile, and the need for protection of the community. As a result of this, he finally resolved that the proper disposition was to place appellant with the Division for Youth, Title III, for 18 months, with a recommendation that the division seriously consider the possibility of placing appellant in Elan School. I cannot say that the Family Court Judge was wrong in this disposition. Nor do I think I know as much about the available alternatives as he did, let alone so much more as to justify substituting my judgment for his. This is not a case like Matter of Andre L. (64 AD2d 479) in which neither the court nor the probation officer had taken into account the availability of other appropriate facilities that would meet the needs. Here the court exhaustively considered the appropriate alternatives. The court questioned in great detail the Law Guardian and the probation officer as to their views with respect to different types of available placement. There was ample evidence to justify the disposition. Appellant had previously been adjudicated a juvenile delinquent based on findings of unauthorized use of a vehicle (Penal Law, § 165.05) and reckless endangerment in the second degree (Penal Law, § 120.20). The fact-finding determination in the present case found that during the previous placement she had made an assault with a garbage pail and wash bucket causing physical injury, which would have constituted assault in the second degree if committed by an adult. She was described as being "thoroughly and adamantly uncooperative.” A hospital report recommended that she be placed "in a secure state training school because respondent cannot be contained in an open setting. The severity of her antisocial actions make her a constant danger to other people.” Appellant had been rejected by a number of agencies. A psychologist for the Family Court Mental Health Services had concluded that appellant had a hostile and explosive personality and represented a distinct threat to the community. The psychologist and the probation officer both recommended that she be placed in a secure facility. On the basis of all of this, the court made its disposition. There is no evidence that Title III facilities do not provide appropriate programs suitable for appellant. (Cf. Matter of Lavette M., 35 NY2d 136, 141.) Another troublesome aspect of this case is due to the time that has elapsed between the dispositional order here reviewed and the implementation of our decision. The order appealed from was made on March 24, 1978; it placed appellant with the Division For Youth, Title III, for a period of 18 months with the recommendation stated. The court directed a probation report in a month’s time to determine the propriety of ordering different placement. Thereafter, we are informed, appellant was placed in the Tryon School, a Title III facility. More than a year has gone by since then (the appeal was submitted to us almost exactly a year after the order of disposition). It is doubtful that the new dispositional hearing, which the majority is ordering, will take place in less than another couple of months. In the interim, no Joshua has been conveniently available to bid the sun stand still. What then is to be accomplished by the new dispositional hearing? Surely we are not concerned with what should be done over a year ago. We can only be properly concerned with what should be done now. But the Family Court has and is exercising continuing supervision anyhow. It ordered a report *524within a month. Extension of the placement would require a further order by the court. (Family Ct Act, § 756, subd [b].) A report is required to be submitted by the place in which the child has been placed at the end of a year of placement, making recommendations. The Division For Youth may discharge the child whenever it deems such discharge to be in the best interest of the child and there is reasonable probability that the child can be released without endangering the public safety. (Executive Law, § 525.) In these circumstances, I do not know what is to be accomplished by the new dispositional hearing which we are ordering. We are informed that such a hearing would necessarily disrupt whatever program the child is in now. Like the majority, I am puzzled by the appointment of a court officer as guardian ad litem. In all these cases there is already a Law Guardian appointed by the court to protect the interests of the juvenile. I can see some function to be performed additional to that of the Law Guardian by a guardian ad litem who is a parent, or a member of the family, or someone having some personal relationship with the juvenile. But where such a person is not available, I must say I cannot see what useful function, beyond that already performed by the Law Guardian, is to be performed by a guardian ad litem who is a stranger to the juvenile. But if he has any functions, I do not see how we can expect them to be performed by a uniformed court officer. It seems most unlikely that a uniformed court officer working in the court of a Family Court Judge would instruct the Law Guardian to take an appeal from an order of that Family Court Judge. In the present case, of course the appeal was taken quite nicely by the Law Guardian without the instructions of the "guardian ad litem.” However, for the reasons I have indicated all of that is in the past.