Chronicle of Social Change: New York State Court Bars Child Welfare Systems from Pursuing Arrest Warrants for Runaway Foster Kids

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Michael Fitzgerald
May 8, 2019

A New York State appellate court expressed sympathy for New York City using arrest warrants to bring runaway and possibly unstable foster youth into custody. But ultimately, the court ruled, there is no compelling reason within the law for family courts to approve such warrants for youth who have not broken any law.

“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,” yesterday’s ruling said.

The decision makes clear that county child welfare systems statewide may not, under current law, rely on law enforcement arrests to bring foster youth back to group homes or punish them for leaving in the first place.

The Administration for Children’s Services (ACS), which oversees child welfare and juvenile justice in New York City and was the defendant in the case, declined to comment, but the city’s law department said it may pursue the case further.

“We are considering all of our legal options, including further appeal and the corrective legislation urged by the Appellate Division,” said Nick Paolucci, a spokesperson for the Law Department, which represents the city in court, in an e-mailed statement. “The Appellate Division recognized that Family Court Judges, the NYPD [New York Police Department] and ACS operated with the ‘best of motives’ in these urgent situations, but concluded that the Family Court Act does not explicitly authorize the issuance of arrest warrants in non-delinquency cases.”

The nonprofit Legal Aid Society, which represented the plaintiffs, hailed the decision.

“This long running and unlawful practice that criminalized our young clients and others in foster care is finally no more,” said Dawne Mitchell, attorney-in-charge of the juvenile rights practice at the Legal Aid Society, in an e-mailed statement. “This decision recognizes that trauma is inflicted on youth when the police are involved and an unnecessary arrest is made. ACS must devise a way to deal with these situations that does not involve handcuffs. We will closely monitor our cases to ensure that this practice has fully ended.”

The case involves two teens, identified as Serenity and Zavion O., who were both voluntarily placed into foster care by their guardians. Both ended up in congregate care – group settings meant to address behavioral and mental health challenges – and ran away from those placements.

The providers and ACS, which oversees child welfare and juvenile justice, sought arrest warrants from family court so the teens could be apprehended and returned to placements. In both cases, the family court judge approved the warrants.

The motive of the courts and agencies was endorsed by the court in its decision.

“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,” the decision said. “The behavioral issues are explained and supported by medical documentation. Both have significant vulnerabilities masked by aggressive and confrontational behavior.”

But ultimately, the appellate division ruled, such a warrant should be grounded in a need to compel the person to appear in court. Its use in the interest of the children ignores potential collateral consequences that could negatively impact the teens one day.

“An arrest record, even if not correlating with a criminal record, could have future adverse ramifications for employment or otherwise,” the decision said. “Moreover, there is also the potential trauma that an arrest, especially if coupled with handcuffs or other restraints, may pose for an already fragile child. Hence, even if an arrest warrant were to be legislatively authorized for cases such as these, it should be carefully conditioned so as to be sensitive to these concerns.”

Israel Appel, an attorney for the plaintiffs who argued the case before the Appellate Division’s First Department court in Manhattan, responded to the law department’s statement that it may pursue an appeal or legislative changes on this issue.

“The best way to encourage youth to remain in their foster care placements, is to prevent the issues that cause a youth to leave in the first place. For youth to decide to leave is a scary choice for them to make. There’s something pushing them away from the placement,” said Appel, an attorney for the Legal Aid Society. “For example, serious safety issues that are being ignored. Or, if the youth has a parent visiting just once a month, that might be a problem. Not having visits with friends is also a problem.

“The solution is better casework, evidence-based and trauma-informed therapy, and meeting more than their basic needs. The legislature has already thought through these issues.”

One foster youth in ACS’ care who had been handcuffed and put in a jail cell for visiting her mother released a statement responding to the decision.

“It’s an amazing decision. ACS can’t do what they did to me and other kids in foster care. They can’t put young people in harmful situations … being arrested and confined in a jail cell is a harmful environment for developing kids and teenagers. Children in foster care are supposed to be taken care of and nurtured, not be slammed into a jail cell,” said the client of the legal aid firm Lawyers For Children, identified only as Nevayah, in an e-mailed statement. Her experience was featured in a New York Times story last year.

“Instead of criminalizing youth, ACS should be investing in high-quality services, professionals with proper training and resources, and engage young people in ways that actually address their challenges. We will closely monitor the impact of this decision,” said Karen Freedman, executive director of Lawyers for Children, which submitted an amicus brief in the case.

The criminalization of running away has been a subject of note in federal policy and law in recent years. Many states consider running away to be a “status offense,” a group of transgressions that would not be considered illegal were a youth of adult age. But federal juvenile justice standards prohibit the use of detention or lockup as a consequence for status offenses.

There is one exception to that rule though: a valid court order (VCO) exception, whereby a judge orders a youth not to run away, or be truant, and that child continues the behavior. According to recent federal data, New York reports not using the valid court order to lock up any status offenders.

The VCO exception was set to be phased out in legislation to reauthorize the federal Juvenile Justice and Delinquency Prevention Act, and is opposed by the group that helped write it into law – the National Council of Juvenile and Family Court Judges. But the final version of the reauthorization bill let the exception stand due to the objection of one member of Congress, Sen. Tom Cotton (R-Ark.)