By Clarissa Sosin
May 10, 2019
Christina Young remembers the day the cops came for her at school. She was 15 years old — a sophomore at Murry Bergtraum High School for Business in lower Manhattan. She and four of her friends were sitting together at a table in the school’s large and chaotic cafeteria. It was lunch time but they weren’t eating. They didn’t like eating lunch at school. They didn’t have a reason why really, they just didn’t like to. Instead they used the time to hang out, and listen to music on her friends iPod.
She was playing with that iPod when the School Resource Officers walked in. The officers weren’t an uncommon presence in the cafeteria, she remembers.
“Someone in that cafeteria was always doing something that you weren’t supposed to do,” Young said.
When they showed up, the students went on high alert wondering who the officers were coming for this time.
But that day, Young didn’t have to wonder. When they walked in, she knew it was for her.
As she watched them ask the man who scanned their ID cards when they entered the cafeteria to point out their target she thought to herself that maybe they were there for the group of rowdy boys who had already been asked multiple times to quiet down. But then the employee at the manning the identification station pointed at her and the officers started to walk in her direction. Her heart sank.
“I didn’t know that I could actually be arrested for not returning to a foster home,” said Young.
Young, now 23 and a program specialist with iFoster, a nonprofit that works with foster youth, was arrested that day because she hadn’t returned to her foster home for three days. She’d been sleeping at a friend’s house and going to school from there. When the SROs arrested her in the cafeteria, it was because the New York Police Department had shown up at the school to arrest her and return her to her placement.
But for now, after a ruling in New York State Court of Appeals, this practice is going to stop.
On May 7, judges from the First Judicial Department ruled that child welfare systems around the state can’t ask law enforcement to arrest runaway foster youth as a way to return them to their placements. Lawyers who worked on the case and other advocates familiar with the issue, including some who worked on the case, lauded the court’s decision. They said the arrest warrants had lasting negative emotional and social effects on youth and that this decision was long overdue. But, they said that there will now be a gap to fill on how New York City’s Administration for Children Services and other child welfare systems in the state find and return runaway foster youth — one they hope will be filled by with better social work and the following of regulations already in place.
“We don’t need new laws, we just need social services to work,” said Israel Appel, the staff attorney in the Legal Aid Society’s Juvenile Rights Practice who argued the case. “This is a case work problem. This is a social work problem.”
Nicholas Paolucci, the director of public affairs and press secretary for the New York City Law Department, responded by email that the health and safety of children are their top priority and that they only used warrants in emergency circumstances.
“We are considering all of our legal options, including further appeal and the corrective legislation urged by the Appellate Division,” he wrote.
The New York City Administration for Children Services declined to comment on the ruling and what measure will be put in place but they said there have been no warrants issued so far this year and that in the past they only pursued them in extreme and narrow circumstances. They also said that not all youth who are “absent from foster care” ran away. Some are taken against their will by traffickers or their biological parents.
Appel said that since he started working for Legal Aid in 2015, he’s seen dozens of cases, both his own and others, where arrest warrants were issued for runaway foster youth. Child welfare workers would skip protocols already put in place by the New York State Office of Children and Family Services for how to find a runaway foster youth, he added.
These multistep protocols included filing a missing person report within 24 hours, making contact with all family members, teachers, close friends, doctors and other professionals working with the child within 72 hours and then repeating these steps as necessary every 30 days until the child returns.
“I have never seen a case where ACS has followed those regulations,” Appel said. Instead he saw warrants.
“It criminalizes noncriminal behavior,” he said.
In their ruling, the judges wrote that they do not believe that the family courts and child welfare workers were acting with malicious intent. But they wrote that they could not uphold the practice because there was no specific law that gave the family courts the authority to issue warrants for what they called “protective arrests” of runaway foster youth.
“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,” the judges wrote in the decision.
In the oral arguments, Daniel Matza-Brown, the city lawyer representing ACS, argued that the warrants issued for Zavion O. and Serenity R.L., the anonymous foster youth involved in the case, fell under a section of the Family Court Act that authorized arrest warrants for children whose testimonies are necessary at a proceeding.
Zavion O. and Serenity R.L. were both voluntarily handed over to ACS by their families and placed in congregate care facilities. Both youths suffered from mental health and behavior issues. Zavion ran away from the facility three times and each time ACS requested arrest warrants. Serenity R.L. ran away once and ACS asked for an arrest warrant in response. The final arrest warrants for each plaintiff were the basis for this case.
Brown argued that the youth were required in court because they had run away and were potentially at risk of harm; therefore they needed to come to court to sort out their placement.
“It provides for the structure and conversation and the interrogation in figuring out where the child can safely be returned,” Matza-Brown argued.
But the judges pushed back, citing a statute that allowed the the NYPD to detain without arresting a juvenile — both in the system and not in the system — if they believed the youth was a runaway.
“If there’s a statute that allows the police to detain a young person at the precinct and then return them to the agency, why do you need an arrest warrant,” they asked.
The arrest warrant provided a mechanism to bring the child back to court, something the other statute does not, Matza-Brown said. The warrants also emphasize the urgency of the situation to the court, which can then provide judicial oversight of the situation he said.
“Because a missing persons report would not,” the judges countered noting that a missing persons report would convey the same urgency and was more enough of a reason to request a hearing — especially if the child said they would run away again if returned to their placement.
“That seems to be more than sufficient basis to come before the court,“ the judges said.
What became clear was that there was no statute that addressed the issue of serial absconders and that the child welfare system was without the means to effectively retrieve runaway foster youth.
“The record for these particular cases amply demonstrates the need for a valid and binding legal instrument to secure the subject children, keep them off the streets, in a manner of speaking, for their own health and safety, and to provide a means for the children to be continually provided regular medical treatment and other services,” they wrote in the decision.
Betsy Kramer, director of policy and special litigation at Lawyers for Children, believes that fixing why youth run away in the first place is the answer to the city’s problems.
“That has always been much more effective when working with young people than using punitive measures. We hope what will happen is what should have been happening all along,” she said, emphasizing that better social work is the answer, not the involvement of law enforcement. “More often than not, the foster care agency is notifying the police and then the police will pick them up instead of the worker.”
Kramer’s organization provides free social work and legal services for city Family Court proceedings. They submitted an amicus curiae to court for this case in hope of providing context beyond the stories of Zavion O. and Serenity R.L.
In the brief they wrote about the long-lasting emotional and social effects that being arrested has on foster youth. They wrote that foster youth who are arrested for running away are more likely to run away again, to drop out of school and to be arrested again.
“The stigma that attaches to youth who have been arrested can jeopardize their opportunity to be discharged from foster care and return home permanently,” the brief reads.
It emphasized the importance of addressing the reasons why the juvenile runs away. Some feel unwanted or even endangered in their placement, they wrote. Some miss their homes. In many cases they go back to their communities and visit friends and family.
“I don’t think that using law enforcement is ever appropriate in these circumstances. These children are not criminals and they have not been accused of committing a crime,” Kramer said.
There are hundreds of kids missing from their placements at any given time and often the agency knows where they are. And often they even know why the child doesn’t want to be in their placement, Kramer said.
“Instead of the worker telling the young person, “Well, this is what we’ve got for you,” the worker needs to be addressing the issues,” she said.
In Young’s case, her foster mother at the time she was arrested in her high school cafeteria was “mean,” she said. She didn’t get along with the five other children in the house. She also didn’t have a key to the house so if she arrived home after school and no one was there, she had to wait outside. She didn’t have a cellphone, which meant that sometimes she would wait hours in the wintry cold until someone came to let her in.
Young said she complained to her case worker, but her situation wasn’t severe enough for her to be moved, the caseworker told her. “It could be worse,” Young remembers being told.
She looks back on it now and wonders if she could have communicated better with her case worker. But she doesn’t think it would have changed anything. She remembers feeling that there were limited foster homes for teens and that the mentality was that you were lucky to be where you were.
“It’s also just about preserving your placement. It’s never about comfort,” she said.
Young said the arrest was traumatizing and embarrassing. But, it didn’t stop her from running away from other placements. Instead she moved around more when she ran away. She knew they knew where her friends lived and which school she went to so she started to think outside the box. She ran away multiple times but was only arrested that once.
“I would just get too scared after a while and just turn myself in,” she said.
After her arrest, Young was returned to her foster home and her life became more restricted. She said she had to go to mandatory meetings with her case worker and her school’s guidance counselor. She wasn’t allowed to go anywhere but directly to school and then home. In the morning when she arrived at school and in the afternoon when she arrived home, she had to call her foster mother.
She was there a total of three months before her foster mother requested she be moved elsewhere. She does not remember that time fondly. She sums up that part of her childhood with three words.
When asked about it now, she said she felt “like a prisoner.”