Bonnie Michelle W., Matter of

• Decision Date: 17 June 1980
• Citation: 76 A.D.2d 784,429 N.Y.S.2d 638
• Parties: In the Matter of BONNIE MICHELLE W., a person alleged to be a runaway, Appellant, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 638

429 N.Y.S.2d 638

76 A.D.2d 784

In the Matter of BONNIE MICHELLE W., a person alleged to be a runaway, Appellant, Respondent.

Supreme Court, Appellate Division, First Department.

June 17, 1980.

J. R. Fink, New York City, for appellant.

F. Leoussis, Mount Vernon, for respondent.

Before SANDLER, J. P., and SULLIVAN, LUPIANO and CARRO, JJ.

MEMORANDUM DECISION.

Order, Family Court, New York County, entered on December 17, 1979, which denied appellant's motion to dismiss the petition for lack of jurisdiction and provided that a bench warrant be issued for appellant, reversed, on the law, motion to dismiss granted and bench warrant vacated, without costs.

Appellant, born on January 13, 1963, was arrested on September 17, 1979 by a Port Authority police officer, on suspicion of being a runaway. She was brought to Family Court, New York County, the next day, and a petition was drawn charging her with absconding from her home in Pennsylvania.

This Family Court proceeding was continued several times in order to give appellant's father and step-mother opportunity to obtain the required Interstate Compact requisition for the return of their daughter. On November 5, 1979, the Family Court received, and marked in evidence, an order of the Pennsylvania Court of Common Pleas, dated October 9, 1979, dismissing appellant's step-mother's application for an Interstate Compact requisition. The proceeding was again adjourned, over objection, to permit a reapplication for the requisition and appellant was continued in detention.

On November 19, 1979, it was reported to the Court that appellant had absconded and also that her step-mother had decided not to re-apply for a requisition, thus letting stand the Pennsylvania Court's dismissal of the proceedings. Appellant's counsel renewed her previous application to dismiss the petition for lack of jurisdiction. The Family Court denied the motion and issued a warrant for appellant, "for determination as to whether or not she should be placed with the Commissioner as a destitute person".

The return of runaways is governed by the Interstate Compact on Juveniles (McKinney's Unconsolidated Laws, sec. 1801, et seq.), Article IV which states, in part, as follows:

"(a) that the parent . . . of a juvenile who has not been adjudged delinquent but who has run away without the consent of such parent . . . may petition the appropriate court in the demanding state for the issuance of a requisition for his return. . . . If the judge (of the demanding state) determines . . . that the juvenile should be returned, he shall present to the appropriate court . . . of the state where the juvenile is alleged to be located a written requisition for the return of such juvenile. . . ."

"Upon reasonable information that a person is a juvenile who has run away from another state party to this compact without the consent of a parent . . . , such juvenile may be taken into custody without a requisition and brought forthwith before a judge of the appropriate court who may appoint counsel or guardian ad litem for such juvenile and who shall determine after a hearing whether sufficient cause exists to hold that person, subject to the order of the court, for his own protection and welfare, for such a time not exceeding ninety days as will enable his return to another state party to this compact pursuant to a requisition for his return from a court of that state."

The requirement in the Interstate Compact on Juveniles of a formal requisition from the demanding state to the retaining state for the return of a runaway is mandatory and, therefore, upon the dismissal by the Pennsylvania court of the application for a requisition, the Family Court was ousted of jurisdiction. Nor was jurisdiction obtained by the Family Court over appellant, who was over the age of 16, based upon its speculation as to her supposed "destitute status" or as a Person in Need of Supervision (see In re Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432). While we are sympathetic to the Court's concern for the welfare of the appellant, the Family Court is a court of limited jurisdiction. It has only such jurisdiction and powers as the Constitution and the laws of the State expressly grant it. (N.Y. Const. § 13, Art. 6; Borkowski v. Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106).

All concur except LUPIANO, J., who dissents in a memorandum as follows:

On August 20, 1979, Bonnie Michelle W. (hereinafter Bonnie), then sixteen years of age, absconded from her home in Charleroi, Pennsylvania. On September 17, 1979, she was observed by Port Authority Police at the Port Authority Bus Terminal to be shabbily dressed and acting in a manner which led them to believe that she was a runaway. They took her into custody and, after spending the night in Spofford Juvenile Center (a secure detention facility), she was taken, on September 18, 1979, to the Family Court, New York County. Upon ascertaining that Bonnie was a runaway and that her stepmother intended to file a requisition for Bonnie's return pursuant to Interstate Compact on Juveniles (See, McKinney's Unconsol. Laws §§ 1801-1806 (L. 1955, c. 155)), a petition was drawn which alleged that Bonnie had absconded from her Pennsylvania home on August 20, 1979.

At the statutorily mandated hearing on September 21, 1979, it also appeared that Bonnie had a history of eleven prior endeavors to abscond. The Family Court determined that sufficient cause existed to hold Bonnie "for her own protection and safety and welfare for a time not to exceed 90 days . . . pursuant to the Interstate Compact" and remanded her to the custody of the Commissioner of Juvenile Justice for detention in a secure facility. The record discloses that Bonnie's law guardian, Legal Aid, ably represented Bonnie at this hearing, but viewed the "best interest of the child" criterion only in terms of Bonnie's desire not to return to Pennsylvania.

At the continuation of the hearing on September 26, 1979, it was disclosed that Bonnie's stepmother was a diabetic. Brief questioning of Bonnie by the Family Court Judge was frustrated in large measure by the law guardian's counseling Bonnie not to answer. Understandably, the Judge expressed discomfiture in that he had to determine in the child Bonnie's best interest whether to continue her custody in a secure or non-secure facility, when she was not permitted by her counsel to say anything. This conduct resulted in the following colloquy:

The Court: I'm interested in knowing whether she's been in non-secure before, and run from them in New York.

Legal Aid: Judge, this is the first time that (Bonnie) has been in New York. She has never been in a non-secure facility. She's never had the opportunity to run from a non-secure facility. She assures me that she would not run from such a facility.

The Court: You see what it amounts to (Bonnie). You and I are going to be dealing with each other. We don't have children under 18 years of age going from state to state without anybody being responsible for them. It's not because anybody thinks that parents are always right. It's because somebody has to be . . . responsible for you. And there are some rules about being in school, and they are different in different states. If you do run, you will be picked up again, and you will never be trusted . . . . I think your lawyer is correct, that we should try to put you in a non-secure facility if you are not going to run away . . . . Do you understand?

Bonnie: Yeah.

The Court: Very often young people your age would come to the City of New York from other states because they don't have any parents or relatives here to assist them, and they get assistance from people who are not always very good for them. I'm interested in knowing whether you have found any affiliations here in New York that you feel you will have to run to because they were good to you. Talk to your lawyer first, and see if she wants you to answer that question.

Bonnie: Yeah. I have a fiance in New York City. He lives in Jersey City, but he hangs around in New York, Manhattan. I would abide by any rules . . . . I won't try to take off.

The Court: How old is your fiance?

Bonnie: 21.

The Court: Have you been able to communicate with him since you've been in Juvenile Center?

Bonnie: I (wrote a letter). He probably got it.

Despite the statement from the Assistant Corporation Counsel (in support of the petition) that he had evidence that Bonnie had run away several times before from another facility (apparently in Pennsylvania), it was determined that Bonnie be remanded to non-secure detention on condition she not communicate with her male friend in New Jersey. Legal Aid objected to the condition. The Court responded: "She's 16 years old. Why don't you go over this (addressed to the law guardian representing Bonnie). Now look (Bonnie), I'm sending you to non-secure detention. I'm asking you to act like an adult for a short period." The law guardian, Legal Aid, again voiced objection to the condition, citing the infant's constitutional right of free association. The court responded:

"I have an absolute responsibility for this child's safety. This is not an unsophisticated Court. This Court has worked very closely with Father Ritter and Under 21. I'm not unaware of the crash pads on 42nd Street, and I'm not getting involved with this until I know more about this case."

Accordingly, as it appeared that Bonnie's stepmother, a diabetic, was unable to assist her Pennsylvania Legal Aid attorney in preparing the requisition papers by September 26, 1979, because she had been in the hospital in intensive care, the matter was adjourned to October 3, 1979, and Bonnie was placed in non-secure detention.

On October 3, 1979, the court was informed by the foster mother and the social worker involved with Bonnie, that she was doing well, having found employment, but that some difficulty was being encountered in enrolling Bonnie in school....