Matter of Tilar M. II

[*1] Matter of Tilar M. II 2013 NY Slip Op 23280 Decided on August 19, 2013 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 19, 2013
Family Court, Queens County

In the Matter of Tilar M. II, A Person Alleged to be a Juvenile Delinquent, Respondent.



D-26104-12/13A



Michael A. Cardozo, Corporation Counsel (Vanessa M. Facio-Lince Of Counsel), New York City, as Presentment Agency. Tamara A. Steckler and

Lisa E. Tuntigian, The Legal Aid Society, New York City, attorney for respondent.

Alan W. Sputz and Charles A. Lawson, New York City, for Commissioner of the

Administration for Children's Services. Lee Prochera and Vanessa R. Icolari,

Rensselaer, for Commissioner of New York State Office of Children and Family

Services.

John M. Hunt, J.

By order of disposition dated April 8, 2013 this Court adjudicated Tilar M.[FN1] to be a

juvenile delinquent and placed him in the custody of the Commissioner of the New York City

Administration for Children's Services ("ACS") for a non-secure placement under the ACS

Close to Home Initiative for a period of eleven months (Fam. Ct. Act §§351.2 [1]; 352.2 [1] [c]; [*2]

353.3 [1], [2-a]).[FN2]

The Commissioner has moved, pursuant to Family Court Act §355.1 (2), for an order

modifying the Court's order of disposition and for a transfer of the custody of the respondent to

the New York State Office of Children and Family Services. In support of the motion, ACS

alleges, in pertinent part, that since respondent's placement in the Close to Home Initiative

program:

To date, ACS has thus far been unable to consistently provide services and

supervision to the respondent pursuant to the order placing the respondent dated

April 8, 2013 due to his frequent AWOL'ing.

The respondent was initially placed on December 6, 2012 with New York

Foundling's non-secure placement facility located at 119 Tompkins Avenue,

Staten Island, NY 10304. On December 13, 2012, the respondent left his placement

without permission and while AWOL from placement was arrested on December

27, 2012.

The respondent also left his placement without permission on January 7, 2013 and

January 27, 2013, returning on February 4, 2013. On February 6, 2013 due to the

respondent's failure to remain in placement with New York Founding and at the

request of the respondent's mother . . . the respondent was transferred to Boys

Town non-secure placement facility located at 289 6th Avenue, Brooklyn, NY

11215.

On February 26, 2013, the respondent again left his placement without permission.

On April 9, 2013, due to the respondent's failure to remain in placement with Boys

Town, the respondent was transferred to Children's Village- Collins Cottage non-

secure placement facility located [at] 1 Echo Hill, Dobbs Ferry, NY 10522.

While at Children's Village, the respondent has gone AWOL on three separate

occasions: on May 21, 2013, returning May 24, 2013; July 2, 2013 and July 10, [*3]

2013, returning August 10, 2013.

ACS believes that there has been a substantial change of circumstances [and] that

placement of the respondent in a limited secure level of care is appropriate and

consistent with the need for protection of the community and the needs and best

interests of the respondent, and that respondent is therefore a person appropriate for

transfer of care and custody to [the] New York State Office of Children and Family

Services for placement in a limited secure setting.

On or about May 21, 2013 this Court was advised by ACS that respondent had

escaped from his placement at Children's Village (see, Social Services Law §404 [13] [d] [ii]),

and the Court issued an arrest warrant for the respondent the following day (Fam. Ct. Act §153).

Although the Court's warrant directed that respondent be taken into custody and that he be

produced before this Court forthwith, he was merely returned to Children's Village by ACS

personnel on July 6, 2013 when he returned from being AWOL.

The Court was informed of respondent's return to Children's Village subsequent to July

6, 2013, and on July 12, 2013 the Court issued an order to show cause pursuant to Family Court

Act §353.3 (6) and §355.1, directing that respondent, his attorney, ACS, and the Presentment

Agency appear so that the Court could conduct an inquiry as to whether there has been a

substantial change of circumstances since his placement on April 8, 2013 as well as the need

for continuing the order of disposition which places respondent with ACS for the Close to Home

Initiative.

The Commissioner filed this motion prior to any hearing upon the Court's own motion,

and a hearing upon the ACS motion was conducted before the Court on August 14, 2013.[FN3] ACS,

the Presentment Agency, and the New York State Office of Children and Family Services [*4]

("OCFS") appeared by counsel, and respondent and his attorney were present at the hearing.

Respondent and OCFS opposed the motion, and the Presentment Agency took no position as to

the relief sought by ACS.[FN4]

A

ACS called Chad Collins, the Program Director for the Boys Town "non-secure

placement" or "NSP" program as a witness in support of the motion. Mr. Collins has known

Tilar M. during the period during which he had been placed at the Boys Town NSP program,

which was from "February 7, 2013 through February 25, 2013". Mr. Collins was a "family home

consultant" for Boys Town during the period that respondent was placed with that agency, and in

that capacity, he had regular interaction with the respondent. Collins explained that as a family

home consultant, he works directly with the resident staff who manage the group or family

home, he is responsible for ensuring that the juvenile delinquents placed in the group home

receive mandated or necessary services, and he also serves as a liaison between Boys Town and

ACS.

Mr. Collins explained that the Boys Town Close to Home Initiative NSP program houses

juvenile delinquents in non-secure group home facilities located in neighborhoods in New York

City. Respondent was placed in a group home in Park Slope, Brooklyn, by Boys Town. This

residence is staffed by a resident "married couple" who lived on the first floor of the house, and [*5]

respondent and five other juvenile delinquents placed in the Close to Home Initiative reside in

bedrooms located on the second floor of the group home. Common areas of the house are shared

by agency staff and the juveniles placed in the home.

ACS had notified Boys Town that the respondent had psychological issues, a history of

running away from placement, and a history of refusing to comply with prescribed psychotropic

medication, at the time that he was transferred to the care of the agency. During the time that

respondent was at Boys Town, he received regular counseling from Mr. Collins, as well as a

social worker employed by the agency, and from a consulting therapist who is an independent

service provider. Mr. Collins indicated that respondent engaged in 2 to 3 therapy sessions during

the 18 days he was at Boys Town, and that he had been diagnosed with "ADHD, Oppositional-

Defiant Disorder, and Conduct Disorder". Respondent arrived at the agency with prescribed

psychotropic medication which he refused to take, and he was examined by a Boys Town

consulting psychiatrist on February 19, 2013 who prescribed two psychotropic medications, but

respondent refused to take these medications.

According to Mr. Collins, the respondent was in the custody of Boys Town from

February 7, 2013 until February 25, 2013, and that he ran away from agency staff who were

transporting him from an appearance in the Family Court in Queens County on February 25,

2013. The respondent never returned to the custody of Boys Town and according to Mr. Collins,

he is aware that respondent was transferred to Children's Village, another authorized agency

which is under contract to provide Close to Home Initiative services, when he was captured by

ACS some 31 after he had run away from Boys Town staff on February 25th.

According to Mr. Collins, respondent's brief stay at the Boys Town group home was [*6]

somewhat turbulent. He recalled that on February 11, 2013 he was advised by agency staff that

respondent was not cooperating with them and that he attempted to leave the group home. Boys

Town personnel placed the respondent in a "safety hold", which appears to involve physical

restraint short of a full body or face-down prone restraint, in order to control him and to prevent

him from leaving the home. After this incident, Mr. Collins met with respondent to ascertain

what caused him to act out and in order to devise a "safety plan" which would ensure that he

remained at the group home and that he cooperated with services.

Subsequently, on February 23, 2013, the respondent "became aggressive" while at the

school located at Boys Town and he "overturned a cabinet" which nearly fell onto an agency staff

member. Respondent was again placed in a "safety hold" by staff in order to control his behavior

and Mr. Collins and a Licensed Master Social Worker ("LMSW") on the Boys town staff met

with respondent following this incident in order to ascertain what was causing him to act out and

to devise a plan to address any need for additional services or treatment. Both Mr. Collins and the

agency's LMSW engaged the respondent in counseling following the second incident and he was

"cooperative" with this counseling. Mr. Collins noted that both he and the other professionals

treating the respondent had access to background information concerning the respondent,

including a mental status evaluation which had been provided by ACS at the time of respondent's

placement.

Boys Town staff were aware of respondent's psychological condition, his refusal to take

prescribed medication, and his history of running away from agency facilities where he had been

placed based upon a prior adjudication as a Person in Need of Supervision ("PINS"), and Boys [*7]

Town attempted to devise a service plan to address these issues. The plan ultimately proved

insufficient as the respondent finally succeeded in running away from Boys Town on February

25, 2013.

B

Ajish Nair, who has been respondent's caseworker during the time he has been placed at

Children's Village, also testified in support of the motion to modify respondent's placement. Mr.

Nair testified that respondent arrived at Children's Village on April 9, 2013 and that he is still

placed there by ACS pursuant to the Family Court orders of disposition, the most recent of which

is the subject of these proceedings.

Mr. Nair explained that Children's Village, which is located in Dobbs Ferry, Westchester

County, is a multi-purpose social services agency, and that the agency campus has facilities such

as a Residential Treatment Center which is a facility for the in-patient treatment of persons less

than 21 years old (see, Mental Hygiene Law §1.03 [33]), as well as facilities for children with

specific behavioral problems such as fire starting, substance, and sexual offenders. Respondent

was placed in a facility ("cottage") designated for the treatment of juvenile delinquents who have

serious emotional disturbance when he arrived at Children's Village. Several of the agency

programs have been designated specifically for juvenile delinquents who are placed there by

ACS under the Close to Home Initiative program.

Mr. Nair explained that respondent was placed in one particular facility (Collins Cottage)

based upon his diagnosed emotional disturbance, as this was his most prominent and pressing

issue. Nevertheless, respondent received a variety of services which extended beyond treating his

mental health condition, including interpersonal and psychological counseling, education at the [*8]

agency's on-campus school, individual and group counseling, and treatment for substance abuse.

Children's Village received a file containing background information on respondent at

the time he was placed with the agency, and the file contained information concerning Tilar's

most recent Close to Home Initiative placement at Boys Town, as well as reports from other

agencies who had custody of the respondent during his placement as a PINS.[FN5]

Mr. Nair indicated that respondent was exhibiting symptoms of psychological disorder

at the time he arrived at Children's Village and a psychiatric evaluation was conducted. A

psychiatrist diagnosed respondent with Bipolar Disorder and Schizoaffective Disorder- N.O.S.

and Abilify was prescribed for him. Mr. Nair usually met with respondent at least once each

week for social work therapy and case planning, but it is unclear whether the respondent

was compliant with taking his prescribed medication while at the agency.

On May 10, 2013 the respondent was admitted to a local hospital for psychiatric

evaluation and treatment due to his acting out over when he learned that his mother could not

come to visit him at Children's Village on Mother's Day, leading to a "suicidal gesture" which

involved wrapping a bed sheet around his neck. Respondent was released from the hospital to

Children's Village on May 20, 2013 and on May 21st he ran into the woods and did not return

to Children's Village. The agency notified ACS that respondent had run away and Mr. Nair

indicated that respondent did not have his prescribed medication with him when he left the

agency campus. Although Children's Village personnel searched for respondent in the Dobbs [*9]

Ferry area, they were not able to locate him, and he was not seen again for 3 days. Mr. Nair

contacted respondent's mother to advise her that her son had run away, but she reported that

she did not see Tilar during his absence from Children's Village.

Mr. Nair testified that respondent and another juvenile delinquent who had run away

from Children's Village returned to the agency on May 24, 2013 in a taxi cab which presumably

brought them from the train station at Dobbs Ferry. When the cab arrived at the agency, the

juveniles ran out of the cab, apparently unable to pay their fare. According to Mr. Nair, he

learned that while respondent was missing from the agency he had spent his time in an

abandoned house in the Bronx, which respondent called a "Crack House", and that people were

using, selling, and buying narcotics at that location. Nair later became aware that respondent

was smoking marijuana and drinking alcohol during the period he was AWOL.

Respondent remained at the agency from his return on May 24th until June 17, 2013,

although Mr. Nair stated that respondent "was not motivated to stay in the program", and he ran

away again on June 17th. On July 6, 2013 respondent again returned to Dobbs Ferry by train and

he went back to Children's Village. Mr. Nair again spoke with the respondent and continued to

find him unmotivated to participate in Close to Home Initiative services. Nair also noted that the

respondent was not taking his prescribed psychiatric medication during the period he was

missing from the Children's Village campus. Mr. Nair indicated that he believed that the

respondent was abusing alcohol and marijuana during the period of his second escape from the

agency as well.

Respondent ran away from Children's Village again on July 10th and he was not seen

again by agency staff until August 10, 2013 when his mother returned him to the campus. [*10]

During the period of respondent's third escape, July 6, 2013 to August 10, 2013, agency

personnel searched for him in and around his former neighborhood in Jamaica, Queens, and

they distributed missing person flyers for him in locations where he was known to frequent.

Mr. Nair and another staff member visited two local police precincts and Nair also contacted

Detective Dennis Seger, who has responsibility for executing warrants for juvenile delinquents in

Queens, as well as respondent's mother who had recently relocated to Brooklyn. According to

Mr. Nair, he provided a copy of the ACS-issued warrant and the Court's bench warrant for

respondent and a copy of the respondent's picture to the two police precincts he visited. Nair

recalled that he was told that officers would conduct a search for the respondent. In Mr. Nair's

view, the ACS-issued warrants were "not universally accepted" by the police and they appeared

to give them little weight.

Mr. Nair concluded that Children's Village was unable to address respondent's

problems during the time he has been placed with the agency due to the fact that the respondent

"was gone more days than he was there" since his placement on April 9, 2013. While respondent

was generally compliant while at the agency campus, his anger control issues, substance abuse

issues, and psychological issues went largely untreated because the respondent refused to stay at

Children's Village. The agency offered services and therapy, and they infrequently provided

close supervision to keep respondent from running away when staffing permitted, the agency had

no way of restraining respondent so as to keep him on the campus. Mr. Nair also stated that the

agency was unable to maintain constant close supervision of the respondent as there are not

sufficient staff to do so.

Prior to the conclusion of the hearing, counsel for ACS introduced copies of all of the [*11]

warrants issued by the agency for the respondent during his placement with the Close to Home

Initiative program, and the Court then rendered its decision.

II

"Family Court Act §352.2 authorizes five dispositions of a youth who has been

adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS,

placement in a mental hygiene facility and, in the case of a juvenile who has committed a

designated felony, restrictive placement pursuant to Family Court Act §353.5" (Matter of

Robert J., 2 NY3d 339, 343 [2004]). Additionally, Family Court Act §352.2 authorizes the

Family Court to place an adjudicated juvenile delinquent in the custody of a Commissioner of

Social Services (Fam. Ct. Act §§352.2 [1] [c]; 353.3 [1]).

In 2012 the Legislature amended the dispositional provisions of the juvenile delinquency

statute (L 2012, ch 57, part G) when it authorized the New York City to "implement a close to

home initiative to provide juvenile justice services to all adjudicated juvenile delinquents

determined by a family court in such district as needing placement other than in a secure facility

and to enter into contracts with any authorized agency . . . to operate and maintain non-secure

and limited secure facilities" (Social Services Law §404 [1]). OCFS approved New York City's

plan to operate a Close to Home Initiative program for juvenile delinquents placed in non-secure

settings in July of 2012 (see, Social Services Law §404 [5]), and ACS began to accept juvenile

delinquents for non-secure Close to Home Initiative placements as of September 1, 2012 (Close

to Home: The First Six Months, City of New York, Administration for Children's Services at 1

(March 2013), available at www.nyc.gov/html/acs/downloads/pdf/Close_to_Home_12.pdf [last

accessed August 16, 2013]). [*12]

In authorizing the Close to Home Initiative, the 2012 legislation modified the

dispositional provisions of the juvenile delinquency statute. Specifically, the 2012 amendments

eliminated the authority to place a juvenile delinquent in the legal custody of OCFS or the

Department of Social Services, while ordering that physical custody of the juvenile be with

a specific authorized agency or class of authorized agencies (Fam. Ct. Act former §353.3 [2], [3],

[4] [repealed by L 2012, ch 58, part G, §6]; see, Sobie, Supp Prac Commentaries, McKinney's

Cons Laws of NY, Book 29A, 2013 Cum Pocket Part, Family Court Act §353.3 at 100).

The current provisions of the placement section, Family Court Act §353.3 (2-a), read as

follows:

Notwithstanding any inconsistent provision of law to the contrary, and pursuant to

subdivision two of this section in a district operating an approved juvenile justice

services close to home initiative pursuant to section [404] of the social services

law:

(a) beginning on the effective date of the district's approved plan that only covers

juvenile delinquents placed in non-secure settings, the court may only place the

respondent:

(i) in the custody of the commissioner of the local social services district for

placement in a non-secure level of care; or

(ii) in the custody of the commissioner of the office of children and family

services for placement in a limited secure or secure level of care.[FN6]

Although court-ordered placements of adjudicated juvenile delinquents with a local

Commissioner of Social Services were permissible prior to the 2012 amendments to the [*13]

Family Court Act and Social Services Law, once ACS plan began operating its juvenile justice

close to home initiative program for juvenile delinquents, ACS essentially assumed the duties of

the state OCFS with respect to all children from New York City ordered to be placed in a non-

secure setting by the Family Court (Social Services Law §404 [13]).

Under the Close to Home Initiative statute, ACS is now responsible for entering into

contracts with authorized agencies, such as Boys Town and Children's Village, for the operation

of non-secure and eventually limited secure facilities (Social Services Law §404 [13] [a]); to

determine where a particular juvenile delinquent is to be specifically placed, and to transfer

juvenile delinquents between facilities (Social Services Law §404 [13] [b], [c]); to apprehend

juvenile delinquents who run away from a Close to Home Initiative placement (Social Services

Law §404 [13] [d]); to notify the Family Court when a juvenile delinquent escapes from a Close

to Home Initiative placement (id.); to issue warrants for the apprehension and return of a juvenile

delinquent who escapes from a Close to Home Initiative placement (Social Services Law

§404 [13] [e]); and to provide education and necessary services to juvenile delinquents placed

in ACS custody (Social Services Law §404 [13] [i], [j]; [15]).

A

The implementation of the Close to Home Initiative had no impact on the Family Court's

continuing jurisdiction over a juvenile delinquent during the period of placement, nor did it

affect the Court's authority under Family Court Act §353.3 (6) to "at any time conduct a hearing

in accordance with section 355.1 of this part concerning the need for continuing a placement".

Indeed, the Court invoked this provision once the Court became aware that respondent had [*14]

escaped from Children's Village for the purpose of the issuance of a bench warrant for his arrest.[FN7]

However, the Close to Home Initiative legislation substantially amended Family Court

Act §355.1, a section which was traditionally viewed as "reflect[ing] the court's continuing

jurisdiction and interest in a juvenile delinquency proceeding" (Sobie, Practice Commentaries,

McKinney's Cons Laws of NY, Book 29A, Family Court Act §355.1 at 414 [West 2010];

see e.g., Matter of Delfin A., 123 AD2d 318, 320 [1986]; Matter of Miguel P., 25 Misc 3d 805,

810 [2008]), and which allows for the granting of a new hearing, or for a stay, modification,

termination, or vacatur of any order issued in the course of a juvenile delinquency proceeding

"[u]pon a showing of a substantial change of circumstances" (Fam. Ct. Act §355.1 [1] [a], [b];

see, Matter of Eugene S., 200 AD2d 574, 575 [1994]; Matter of Chaz H., 298 AD2d 983, 984

[2002]; Matter of Barry H., 309 AD2d 1147 [2003], lv denied 1 NY3d 503 [2003]; Matter of

Eric S.D., 37 AD3d 1045, 1046 [2007]).

While subdivision one of section 355.1 remains unchanged, a new subdivision two was

inserted into §355.1 to account for the implementation of the Close to Home Initiative. Thus,

under current Family Court Act §355.1 (2), an order of placement issued under Family Court

Act §353.3 "may, upon a showing of a substantial change of circumstances, be set aside,

modified, vacated or terminated upon motion of the commissioner of social services or the office

of children and family services with whom the respondent has been placed." [*15]

While courts have utilized Family Court Act §355.1 to modify existing orders of

disposition based upon a substantial change of circumstances (Matter of Lorenzo A., 58 AD3d

441 [2009]; Matter of Shatique B., 70 AD3d 1036, 1036-1037 [2010]), it has been made clear

that continuing jurisdiction over a juvenile delinquency proceeding "does not vest the Family

Court with the power to take actions not authorized by article 3" (Matter of Jazmin A., 15 NY3d

439, 444 [2010]). It appears from a closer examination of amended Family Court Act §355.1 that

modifications of juvenile delinquency placements from the non-secure Close to Home Initiative

to a limited secure placement with OCFS are to be accomplished by the filing of a petition for

that relief by ACS. This conclusion is compelled by the language of the statute which provides

that "[a]n order issued under section 353.3, may . . . be set aside, modified, vacated or terminated

upon motion of the commissioner of social services" (Fam. Ct. Act §355.1 [2] [emphasis added]),

as well as that "if the district determines that placement in a limited secure facility is appropriate

. . . the social services district shall file a petitionto transfer the custody of the respondent to

[OCFS]" (Fam. Ct. Act §355.1 [2] [a] [i] [emphasis added]). The Legislature has thus prescribed

a specific procedure for the modification of Close to Home Initiative placements, and the Court

is not free to disregard that procedure (Jazmin A., 15 NY3d at 444; Matter of Rayshawn P., 103

AD3d 31, 41-42 [2012]; Matter of Kareem W., 100 AD3d 565 [2012]).[FN8] [*16]

B

In this case the Court was presented with a petition which was properly filed by the

Commissioner of ACS in accordance with Family Court Act §355.1 (2). Proper notice was

provided to the Presentment Agency, OCFS, and the attorney for the respondent. Having heard

the testimony of the two witnesses, both of whom had direct contact and responsibility for Tilar

during his placement under the Close to Home Initiative, and having considered the additional

evidence and the prior proceedings conducted before this Court, the following constitutes the

Court's decision as required by Family Court Act §355.1 (2) (a) (i).

The evidence establishes that Tilar M. has failed to cooperate with the non-secure Close

to Home Initiative placement ordered by this Court on April 8, 2013.[FN9] ACS placed the

respondent in the custody of Children's Village, an authorized agency located in Dobbs Ferry,

Westchester County, which has a contract with ACS to provide services under the Close to Home

Initiative in a non-secure placement setting. Respondent arrived at Children's Village on April 9,

2013 with an extensive history of running away from other non-secure agencies where he had

been placed by ACS based upon adjudications as a Person in Need of Supervision and as a

Juvenile Delinquent in proceedings which preceded the juvenile delinquency case adjudicated

by this Court.

Documents introduced by ACS at the hearing conducted pursuant to Family Court Act

§355.1 (2) (a) (i), reflect that during the period of his placement with the Close to Home [*17]

Initiative, five escape incidents have been reported to the ACS Movement Control and

Communications Unit.[FN10] More specifically, respondent was placed at a non-secure Close to

Home Initiative agency on Staten Island on December 6, 2012, and he ran away from the agency

on January 7, 2013. Respondent was subsequently transferred to Boys Town and he ran away

from that agency on February 25, 2013. Following the conclusion of the juvenile delinquency

case before this Court respondent was transferred to Children's Village by ACS, as the

Close to Home Initiative program at Boys Town was unable to treat respondent or to keep him

on its campus as testified to by Chad Collins.

Respondent's behavior and compliance with the program continued to decline after his

transfer to Children's Village. While respondent was placed in a cottage specifically intended to

house emotionally disturbed juvenile delinquents, respondent's participation in services and

counseling was marginal at best. As Mr. Nair noted, by July 10, 2013 when respondent ran

away from Children's Village for the final time, he had been absent from the Children's Village

campus more days than he had been present.

While the agency attempted to treat respondent's psychological condition and provide

him with counseling and other services, and he had a ten day admission for psychiatric evaluation

and treatment while at Children's Village, he continually refused to take the medication which

had been prescribed by a psychiatrist. The biggest obstacle to respondent's treatment by

Children's Village was his utter refusal to remain at the agency campus and to engage in the

services offered by the agency. [*18]

Respondent ran away from Children's Village on May 21, 2013, and he returned on May

24, 2013 under bizarre circumstances involving another escaped delinquent and a trip to campus

by taxicab. During this period of absence, respondent apparently stayed in a "Crack House"

which was an abandoned building in the Bronx where people were using, selling, and purchasing

drugs. Respondent admitted to smoking marijuana and drinking alcohol during this absence from

the agency. Respondent ran away again on July 2, 2013 and he was missing until July 6, 2013, he

stayed four days and then ran away again on July 10, 2013 and was missing for a month.

Given respondent's refusal to remain at the three non-secure agency facilities where

he was placed by ACS under the Close to Home Initiative, his history of running away when he

was placed as a Person in Need of Supervision, his refusal to cooperate with treatment for his

psychological conditions, his continued use of drugs and alcohol, and his aggressive behavior

while at the Boys Town non-secure facility, leads to the inescapable conclusion that the needs

and best interests of Tilar and the need to protect the community from him require that he be

placed in a limited secure setting with OCFS.

Both OCFS and respondent's attorney urged that this Court deny the petition and that

respondent be permitted to remain in the Close to Home Initiative program. The objections

stated by OCFS and the attorney for the child primarily concern whether ACS has demonstrated

the existence of a substantial change of circumstances within the meaning of Family Court Act

§355.1 (2). Upon this record, the Court finds that ACS has indeed established a substantial

change of circumstances since this Court placed the respondent in a non-secure setting with the

ACS Close to Home Initiative.

Continuation of the respondent in the Close to Home Initiative is not feasible as he is [*19]

beyond the control of the agencies with which he has been placed, and his continuation in a

non-secure setting will lead to further unauthorized absences with concomitant disruptions in

his treatment program. Most notably, ACS which is responsible for the administration of the

Close to Home Initiative, has filed this motion requesting that the respondent be removed from

the Close to Home Initiative program precisely because he poses a danger to himself and to the

community, and he is in need of intensive treatment and supervision which, given his history of

running away, requires that he be placed in a more secure and more structured setting.[FN11]

As noted by Professor Sobie, "[t]he close to home' remedy does not fit all cases [and]

for at least a few children away from home' may be a preferable alternative" (Sobie, 2012 Supp

Prac Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act §353.3, 2013

Ann Pocket Part at 103). This is such a case.

It is therefore,

ORDERED, that the motion filed by the Commissioner of the Administration for

Children's Services pursuant to Family Court Act §355.1 (2) (a) (i) is granted for the reasons

stated herein.

This constitutes the decision, opinion, and order of the Court.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

August ____, 2013 Footnotes

Footnote 1:Tilar M. is also known by the alias, "Brandon Flowers", a name he apparently provided to police when he was arrested on the charge underlying this case. Brandon Flowers is a football player who has played cornerback for the Kansas City Chiefs of the National Football League since 2008.

Footnote 2:Respondent's placement by this Court was based upon a determination that he possessed a toy or imitation pistol, a misdemeanor under the New York City Administrative Code. At the time that respondent was placed by this Court, he was already subject to an order of placement with the ACS Close to Home Initiative issued by another Family Court Judge in a prior juvenile

delinquency proceeding.

Footnote 3:The Court's motion was withdrawn upon the conclusion of the proceedings upon the

motion filed by ACS.

Footnote 4:When the respondent was initially produced upon the Court's bench warrant, he was ordered "held in custody" by the ACS Division of Youth and Family Justice pursuant to Social Services Law §404 (13) (d) (iii). Once ACS filed it motion pursuant to Family Court Act §355.1 (2), the Court directed respondent's detention "in a local secure detention facility on an interim

basis pending its final ruling" on the motion (Fam. Ct. Act §355.1 [2] [a] [iii]).

Footnote 5:According to Mr. Nair, the file provided to Children's Village contained reports from Geller House, New York Foundling, and Graham Windham, each of which had custody of Tilar

M. at some point during his placement as a Person in Need of Supervision.

Footnote 6:Other portions of Family Court Act §353.3 (2-a) provide for the placement of juvenile

delinquents at such time as ACS is authorized to implement programs for youth placed in limited

secure settings (Fam. Ct. Act §353.3 [2] [b]). As of the date of this decision, the ACS plan to

operate programs for juvenile delinquents ordered to be placed in limited secure settings has not

been granted approval.

Footnote 7:The Court acted in this case, as well as other similar cases, because the Court has been

made aware that some law enforcement officers do not accord the "warrants" issued by the Commissioner of ACS the same respect as a bench warrant issued by a judge. While the ACS warrants are lawfully issued (Social Services Law §404 [13] [e]), they do not constitute a judicial mandate which directs the arrest of an individual and his or her production before a court (see, People v. Briggs, 19 NY2d 37, 42 [1966]).

Footnote 8:A motion filed by the Court pursuant to Family Court Act §355.3 (6) does not authorize

the issuance of a detention order (Jazmin A., 15 NY3d at 444; Rayshawn P., 103 AD3d at 43), although a juvenile who may be the subject of such a motion is already placed, which distinguishes that juvenile from a juvenile delinquent who is alleged to have violated the conditions of his or her probation. However, it should be noted that Family Court Act §355.1 (2) specifically authorizes the issuance of an order directing that a juvenile delinquent be held in "a local secure detention facility on an interim basis pending its ruling on the petition filed pursuant to this paragraph" (Fam. Ct. Act §355.1 [2] [b] [iii]). Thus, the filing of a petition by ACS is the event which triggers the Family Court's authority to remand a juvenile delinquent to a local secure detention facility, pending disposition of petition to modify placement to limited secure.

Footnote 9:This Court expresses no opinion as to whether respondent has failed to comply with the

order of disposition issued by its colleague on November 21, 2012 which places the respondent

with the ACS Close to Home Initiative. This Court is advised that ACS has filed a motion with

respect to the November 21, 2012 order of disposition, and it has been referred to the judge who issued that order for further proceedings (Fam. Ct. Act §340.2 [2]).

Footnote 10:Because a motion made pursuant to Family Court Act §355.1 (2) is a post-dispositional

application, the evidentiary rules set forth in Family Court Act §350.3 (1) are applicable.

Footnote 11:Under the procedure set forth in Family Court Act §355.1 (2) (a) (i), the Court either grants or denies the ACS motion to modify placement. If the motion is granted, the juvenile

delinquent must be placed in the custody of OCFS for placement in a limited secure placement.

While other placement alternatives could possibly be considered upon a motion made under

Family Court Act §355.1 (1), in this case, the attorney for the child's affirmation in opposition

strenuously objected to the Court's motion filed under subdivision one. In any event, it is noted

that respondent's attorney identified no other realistic dispositional alternative for the Court to consider (see, Matter of Michael RR., 266 AD2d 709, 711 [1999]).