“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.