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ALTHOUGH THERE IS CLEARLY A NEED FOR A STATUTORY MECHANISM TO KEEP CHILDREN WHO ABSCOND FROM PLACEMENT SETTINGS OFF THE STREETS AND SAFE FROM HARM, FAMILY COURT ACT 153 DOES NOT AUTHORIZE AN ARREST WARRANT FOR THIS PURPOSE (FIRST DEPT)

The First Department, in a full-fledged opinion by Justice Tom, determined that Family Court Act 153 does not authorize an arrest warrant for children who abscond from home or placement settings, notwithstanding that the arrest warrant is issued to keep the child safe and off the streets, and to ensure the child does not engage in self-destructive behavior. The First Department acknowledged that the Administration for Child Services (ACS) needs a mechanism for this purpose, but decided no such statutory mechanism exists at the moment:

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. … 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. … 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. … 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. Matter of Zavion O. (Donna O.), 2019 NY Slip Op 03554, First Dept 5-7-10

 

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