Zavion O. v. Admin. for Children's Servs.

• Decision Date: 07 May 2019
• Docket Number: 8268-8269
• Citation: 173 A.D.3d 28,101 N.Y.S.3d 282
• Parties: In re ZAVION O., Appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Petitioner-Respondent, Donna O., Respondent-Respondent, Ella M., Respondent. Lawyers for Children and the Children's Law Center, Amici Curiae. In re Serenity R.L. (Anonymous), Appellant, v. Administration for Children's Services, Petitioner-Respondent, Johnny L., et al., Respondents. Lawyers for Children and the Children's Law Center, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 28

101 N.Y.S.3d 282

In re ZAVION O., Appellant,

v.ADMINISTRATION FOR CHILDREN'S SERVICES, Petitioner-Respondent,Donna O., Respondent-Respondent,Ella M., Respondent.

Lawyers for Children and the Children's Law Center, Amici Curiae.

In re Serenity R.L. (Anonymous), Appellant,

v.Administration for Children's Services, Petitioner-Respondent,Johnny L., et al., Respondents.

Lawyers for Children and the Children's Law Center, Amici Curiae.

8268-8269

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MAY 7, 2019

Dawne A. Mitchell, The Legal Aid Society, New York (Israel T. Appel of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York (Daniel Matza–Brown and Fay Ng of counsel), for Administration for Children's Services, respondent.

Center for Family Representation, Inc., New York (Maura A. Keating of counsel), for Donna O., respondent.

Karen Friedman, Lawyer's for Children, Inc., New York (Betsy Kramer of counsel), and Karen Simmons, The Children's Law Center, Brooklyn (Louise Feld of counsel), for amici curiae.

Rosalyn H. Richter, J.P., Sallie Manzanet-Daniels, Peter Tom, Marcy L. Kahn, Anil C. Singh, JJ.

TOM, J.

These cases, consolidated for appeal, present the recurring issue whether Family Court Act § 153, relied on by Family Court, authorizes the issuance of a warrant for the protective arrest of a child who is neither a respondent nor a witness in a Family Court proceeding for purposes of ensuring the child's health and safety rather than to compel his or her attendance in court. Notwithstanding that such protective arrests may have become a practice of Family Court under very compelling circumstances, in the absence of more explicit statutory authority we cannot endorse the legality of the practice. In reaching our conclusion, though, we do not suggest any criticism of the respective Family Courts in this case nor do we impute improper motives to the Administration for Children's Services, various parties or even law enforcement, who, to all appearances, were operating on the best of motives. However, the issuance of an arrest warrant must proceed from explicit statutory authority. Such is lacking in this case, as is, notably, any authoritative decisional law.

The record clearly shows that the two children in these cases are at high risk of bringing harm to themselves or putting themselves in positions where others may harm them if they are left to their own choice of absconding from foster care facilities to enter life on the streets. The behavioral issues are explained and supported by medical documentation. Both have significant vulnerabilities masked by aggressive and confrontational behavior. Both have displayed histories of absconding from home and placement settings, presenting the substantial risk that they would end up on the streets. This was the outcome that all parties wanted to prevent. Both children are marked by multiple mental illness diagnoses and neurological impairments requiring medication which they often will not take and apparently did not take when they absconded, leading to the inevitable downward spiral during which each engaged in risky behavior. Both have complicated family situations in which family members are unavailable as resources, or available family members who may be willing to be resources have had persistent difficulties controlling the children, and both children manifest severe behavioral problems. The record also clearly demonstrates the likelihood that they will run away again if not in a controlled setting of some nature, thereby repeating the cycle of being at risk on the streets.

In Serenity's case, her father executed a voluntary placement agreement, recognizing that he could not control her behavior, which then became the basis for the Petition for Approval of an Instrument filed by ACS. By Family Court order dated March 6, 2018, Serenity was temporarily placed in foster care with Mercy First. Serenity left her foster care placement on or about May 11, 2018, after which ACS filed a Notice of Absconded Child on or about May 16, 2018, and the National Center for Missing and Exploited Children was notified. On May 16, 2018, Family Court in New York County issued a warrant of arrest for Serenity pursuant to Family Court Act § 153. The warrant imposed as a restriction that no handcuffs were to be used unless required by safety or security concerns. The warrant also directed that if it was executed outside of the hours during which Family Court was open, the child was to be brought to the ACS Children's Center at 492 First Avenue in Manhattan. By order of disposition dated June 8, 2018, Family Court approved the voluntary placement agreement executed by Serenity's father and transferred her care and custody to Mercy First for long-term placement.

Serenity subsequently left the facility again on or about June 25, 2018. Serenity was observed by an ACS search team on July 13, 2018, at which time she aggressively resisted returning to the facility. On July 16, 2018, ACS filed a second Notice of Absconded Child, which described some of the risky behavior in which she was engaging, including that Serenity may be "engaging in unsafe sexual behavior" and was not taking her prescribed psychotropic medications. Family Court issued another arrest warrant, which was executed on July 18, 2018. Upon inquiry by the court, ACS indicated that it would return Serenity to Mercy First, but the attorney for the child predicted that she would "be out on the street again." On July 19, 2018, Serenity left the facility again, and ACS filed another Notice of Absconded Child on July 20, 2018. This notice advised that Serenity, an asthma sufferer, was without her inhaler and that she had not brought with her the psychotropic medication prescribed for her. ACS applied for another arrest warrant.

At the July 23, 2018 appearance in connection with the ACS warrant application, the attorney for the child objected to the warrant application. Family Court transferred the matter to Referee Jessica Brenes and adjourned it to the following day. The following day, the case worker assigned to Serenity repeated the concern that Serenity had absconded without her medication, which placed her at a substantial health risk, described the protocols that would be employed upon her return, including crisis counseling, but conceded that they had also been in place prior to prior runaway episodes. The warrant application was granted. This Court stayed execution of the arrest warrant by order entered August 1, 2018. Serenity was returned to foster care on July 24, 2018. By order entered August 7, 2018, Family Court declined to vacate the warrant. Apparently, Serenity left Mercy First again prior to the hearing of the appeal.

In Zavion's case, his grandmother, who was his legal guardian, executed a voluntary placement agreement on or about January 25, 2017. In the ACS petition to approve the agreement, ACS described the neurological and behavioral issues that impeded his grandmother's ability to control his behavior. After a hearing, Family Court granted the petition and transferred his care and custody to ACS. Zavion's situation differed to a degree from that of Serenity in that he was in a placement proceeding and, indeed, his progress was reported during several placement hearings. There was an indication that he would be placed in a new school, he wanted to return home, and a trial discharge was anticipated. However, problems arose concerning cancellations of home visits—whether his grandmother or case worker cancelled the visits was disputed. Zavion resisted returning to ACS, and Zavion's progress started to deteriorate. He started to abscond, was reported by his grandmother to be "run[ning] the streets" at night, may have had a history of suicidal ideations, and may have been engaging in drug use.

ACS applied for an arrest warrant, to which the attorney for the child objected on jurisdictional and other grounds. The Family Court Referee, in issuing the warrant, concluded that it "cannot allow the absence of any specific authority to paralyze it from acting in the best interests of the child." Although noting the need for legislative action insofar as "the statute is in fact silent ... specifically where these types of cases are concerned," the Family Court's decision found that the arrest warrant as a means of protecting the child was consistent with Family Court's exercise of its jurisdiction to protect the child from the adverse health and safety consequences of absconding from foster care. Technically, the court in its subsequent written decision grounded its warrant jurisdiction in the need to ensure the child's presence in court—thereby at least touching on some of the phrasing in § 153—so as to allow the court to assess the child's safety or the child's wishes regarding placement. By order entered July 2, 2018, this Court stayed the execution of this warrant as well, pending determination of the appeal. Apparently, Zavion has continued to abscond on multiple occasions.

Family Court Act section 153 authorizes Family Court to issue "in a proper case a warrant or other process to secure or compel the attendance of an adult respondent or child ... whose testimony or presence at a hearing or proceeding is deemed by the court to be necessary...." Section 153–a governs the execution of the arrest warrant, which, pursuant to subsection (c) may include "such physical force as is justifiable" by reference to the Penal Law. Although the decision accompanying an arrest in this case contemplated the absence of handcuffs, the statute nevertheless allows for it and a restriction in one case has no effect, of course, in other similar cases. An arrest warrant allows for heightened coercion imposed on the arrestee with Fourth Amendment ramifications. An arrest record, even if not correlating with a criminal record, could have future adverse ramifications for employment or otherwise....