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In re Jennifer R.

Family Court, Kings County

November 25, 2013

In the Matter of Jennifer R. A Child Under Eighteen Years of Age Alleged to be Neglected by Tanya M., Respondent.

MOTION DECISION

William C. Hoffman, Esq., Assigned Counsel, appeared for the Respondent Mother.

Laura M. Paley, Esq. Kings County Legal Aid Society - Juvenile Rights Division, appeared as Attorney for the Child.

ANN E. O'SHEA, J.

ACS brings this order to show cause asking the Court to issue a warrant for the arrest of either the subject child Jennifer R. ("Jennifer"), who will turn 17 years of age in less than two weeks, or the arrest of the Respondent Mother, Tanya M. ("Mother") with a direction that she produce Jennifer in court.

On March 8, 2013, Jennifer was removed from the Mother's custody and remanded to the custody of the Commissioner of ACS and Graham-Windham Services for Family and Children, an authorized foster care agency ("Agency"). She was placed in a nonkinship foster home. On September 27, 2013, Jennifer left the foster home and did not return. On October 8, 2013, following a hearing on inquest, this Court issued an order finding that the Mother neglected Jennifer as a result of her repeated misuse of marijuana, cocaine and alcohol and her involving Jennifer in the purchase of illicit substances. The Agency caseworker has had phone conversations or text message exchanges with the child since she left the foster home. Her last communication with Jennifer was on October 23, 2013. During one of the exchanges, Jennifer told the caseworker that she had gone to live with her mother, but would not give the Mother's new address. The Agency filed a missing persons report and the police are looking for Jennifer.

ACS asks the Court to issue a warrant for Jennifer's arrest. ACS relies on FCA §153 and §1037 as the basis of the Court's authority to issue a warrant for a child.

FCA§153 provides, in pertinent part, as follows:

"The family court may issue a subpoena or in a proper case a warrant or other process to secure or compel the attendance of an adult respondent or child or any other person whose testimony or presence at a hearing or proceeding is deemed by the court to be necessary...."

Section 153 provides a mechanism for a court to compel an adult or a child "at a hearing or proceeding. " There is no "hearing" or "proceeding" currently scheduled which requires Jennifer's presence or testimony in court.

ACS refers the Court to §205.80 of the Uniform Rules for the Family Court, which provides, in pertinent part, as follows:

"(a) When a child absconds from a shelter or holding facility to which the child was remanded... written notice of that fact, signed by an authorized representative of the facility, shall be sent within 48 hours to the clerk of the court from which the remand was made.... (b) Upon receipt of a written notice of absconding, the clerk shall cause the proceeding to be placed on the calendar for the next court day for such action as the court shall deem appropriate, and shall give notice of such court date to the petitioner and... counsel for the child."

Section 205.80 specifically applies only when a child absconds "from a shelter or holding facility." Jennifer did not leave a shelter or a holding facility; she left her foster home.

Moreover, even if ยง205.80 could be stretched to apply when a child leaves her foster home, which, in this Court's opinion it cannot, ACS's argument that a "proceeding" placed on the calendar in response to a notice that a child has absconded, provides a vehicle for issuance of a warrant under FCA 153 is rejected. The argument is disingenuous at best and reduces down the ACS's attempt to manufacture a "proceeding" to justify issuance of a warrant when one is otherwise not authorized or justified. ACS's stated reason for wanting the Court to issue a warrant for the child's arrest is to make sure she is ...


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