Justice Peter Tom. Photo: Rick Kopstein/ALM

A state appeals court Tuesday handed down a ruling that, for the first time, outlaws a longstanding, controversial practice used by New York's Family Court: issuing warrants for the protective arrest of children who have broken no law, but who have run away from either household or other foster care run by New York City's Administration for Children's Services.

The decision, laid out in a detailed opinion written by Appellate Division, First Department Justice Peter Tom, is careful to not criticize the Family Court or ACS, which for years has sought the arrest warrants when children it's responsible for abscond, often serially and at great risk to themselves.

Instead, Tom, joined by Justices Rosalyn Richter, Sallie Manzanet-Daniels, Marcy Kahn and Anil Singh, indicates that a statutory solution is desperately needed.

“In reaching our conclusion,” writes Tom on behalf of the unanimous panel, “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,” Tom continued in an opinion that details why Family Court Act Section 153—most often relied upon by the Family Court as the underpinning for issuing the warrants—does not provide that authority.

“Such [authority] is lacking in this case, as is, notably, any authoritative decisional law,” Tom wrote.

Then later in the opinion, which consolidated and addressed two cases in which the Family Court had issued arrest warrants for children who'd run from foster care, the justice stated that “while 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, no statutory device seems to fit the need in either of these cases.”

He also stated, near the opinions's end: “Multiple courts over the years have identified the deficiencies in the Family Court Act regarding this and similar problems,” and then said bluntly, “The appropriate vehicle for providing Family Court with the means to achieve the goals commensurate with the problem would seem to be either an amendment to Section 153 or other statutory provisions, but it is in the legislative realm, and we would encourage that undertaking.”

The issue of arrest warrants being issued for youth who run away from foster care has garnered attention and headlines in recent years, including in a New York Times story published last December. According to the Times article, “In Family Court hearings every month, the A.C.S. is quietly being granted arrest warrants to detain foster children like Nevayah, whose only transgression is leaving the agency's care. The unusually draconian strategy has little precedent in any state's foster care system, and it is unclear if the A.C.S. even has the authority to use such warrants under New York state law.”

The same story later noted that ACS “has acknowledged that the practice—sometimes resulting in the arrest of children as young as 14—can be problematic. In an industry newsletter in 2015, it announced it intended to adopt more stringent guidelines to govern its use of warrants.”

After the First Department's opinion was issued Tuesday, Karen Freedman, executive director for Lawyers for Children Inc., a legal services organization that filed an amicus appellate brief on behalf of children affected by the arrest warrants, said in a statement, “This is a major victory for our clients and all young people in foster care. Today's decision sends a clear message that this inhumane practice has no basis in the law, and acknowledges the trauma associated with arresting vulnerable children.”

She added that “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.” Moreover, Freedman contended that “this issue is emblematic of how social services, including ACS, unnecessarily and disproportionately rush to law enforcement to address social and medical issues that challenge communities of color.”

Meanwhile, The Legal Aid Society of New York, which represented the two children in the consolidated cases before the panel—referred to as Zavion O. and Serenity R.L.—issued a statement Tuesday that “hailed” the First Department's decision.

“For decades, [ACS] would request arrest warrants from New York State Family Court for children in foster care who left their placement without permission despite the fact that this does not break any law,” Legal Aid said, adding that “in 2015, ACS even admitted that the practice can have 'negative unintended consequences,' but the agency refused to scale it back.”

The city's Law Department, which represented ACS in the appeal, issued a statement.

“The health and safety of children is a top priority for ACS, and arrest warrants were sought from the Family Court only in emergency circumstances where significant mental illness or urgent medical needs rendered both children's health or safety at imminent risk,” Law Department spokesman Nick Paolucci said. ”The Appellate Division recognized that Family Court judges, the NYPD 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. We are considering all of our legal options, including further appeal and the corrective legislation urged by the Appellate Division.”

In the panel's opinion—which has precedential affect in the First Department but which some experts believe could have broader influence—Tom set out many of the facts regarding both the cases of Serenity R.L. and Zavion O. And, in doing so, he explained that while certain circumstances differed, both children had run away repeatedly. Moreover, he noted that both had “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.”

Tom also wrote that “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.” He also said that each child has “complicated family situations.”

But in analyzing Family Court Act Section 153 and the reach of the authority it provides, he wrote that “the question presented to us is whether under these compelling circumstances the court could avail itself of Section 153 to achieve the intended protective goal [of arresting the children]. We conclude that the statute does not authorize the arrest of a nonrespondent child who is not needed as a witness in a Family Court hearing or proceeding under these circumstances regardless of the seriousness of the concerns.”

He also explained that “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. 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.”

Therefore, Tom and the panel added, “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.”

The First Department's decision overturned a Manhattan Family Court order, entered on or about June 29, 2018, which determined that Zavion O.'s presence was required before the court and issued a warrant directing he be produced. It also overturned an order by the same court, entered on or about July 23, 2018, which ordered that a warrant for the arrest of Serenity R.L.