James J. Spann for petitioner.
Daniel Stapleton for respondent.
Julie B. Hewitt, Law Guardian.
Judith S. Claire, J.
This matter is before the court upon a writ of habeas corpus filed by the custodial father, Mark N., for the return of his daughter, Natalie N. Natalie is 13 years old, born February 2, 1988. The child is currently staying in the Runaway Homeless Youth Shelter, which is commonly (and hereafter) referred to as the " Safehouse." The child went to the Safehouse on or about September 10, 2001. The father attempted to contact the child and ultimately to have the child return home and was refused access to the child.
Notice was given to the Attorney General who declined to appear. Each attorney was given the opportunity to make submissions. It appears that the only case on point since the law was passed in 1978 is Matter of Curran (128 Misc.2d 306).
The article covered by Executive Law § 532 is known as the " Runaway and Homeless Youth Act of 1978." The Safehouse is an " approved runaway program" as defined by Executive Law § 532-a (3). Counsel for the Safehouse and the Law Guardian contend that under Executive Law § 532-b (2) the child may reside in the Safehouse for a period of 30 days with no remedies or action allowed by the parents for the return of the child. The law states in pertinent part as follows: " The runaway youth may remain in the program on a voluntary basis for a period not to exceed thirty days from the date of admission where the filing of a petition pursuant to article ten of the family court act is not contemplated, in order that arrangements can be made for the runaway youth's return home, alternative residential placement pursuant to section three hundred ninety-eight of the social services law, or any other suitable plan." (Executive Law § 532-b .)
A complete review of the entire article does not contain any specific prohibitions against a parent filing a writ of habeas corpus. The implication is that the " may" remain language in section 532-b (2) prohibits this action. Counsel relies almost exclusively on the case of Matter of Curran (supra) in reaching their conclusion. This is a 1985 Oneida County Family Court decision that was never brought before a higher, binding court.
This court has reviewed the Oneida County Family Court decision. The Oneida County Court states that the parent has a right to commence a habeas corpus proceeding under Family Court Act article 6. That court concluded that the parent was not provided with a specific right under this Act, thus they
were prohibited from filing the writ of habeas corpus for the first 30 days.T his court disagrees with that assumption. However, if this court were going to agree that the parents were prohibited from filing for the return of the child, then ...