Matter of Tilar M.

[*1] Matter of Tilar M. 2013 NY Slip Op 51280(U) Decided on August 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2013
Family Court, Queens County

In the Matters of Tilar M., CHRISTOPHER L. and TENZIN G., Persons Alleged to be Juvenile Delinquents.



D-26104/12



Appearances of Counsel: Michael A. Cardozo, Corporation Counsel (Jessica LaTour of counsel), New York City, for Presentment Agency in all three proceedings.

Alan W. Sputz and Charles A. Lawson for New York City Administration for Children's

Services in all three proceedings.

The Legal Aid Society (Tamara A. Steckler and Lynda Augente) attorney for Tilar M.

Ronna Gordon-Galchus, Bayside, attorney for Christopher L.

The Legal Aid Society (Tamara A. Steckler and Lisa E. Tuntigian) attorney for Tenzin G.

John M. Hunt, J.

Tilar M., Christopher L. and Tenzin G. committed one or more criminal acts, they were

subsequently adjudicated to be juvenile delinquents in separate Family Court proceedings, and

each was placed in the Close to Home Initiative with the New York City Administration for

Children's Services ("ACS"). While the cases of these three juveniles were unrelated, they each

have run away from their placement with the Close to Home Initiative, a distinction they share

with many other juvenile delinquents who have similarly been placed in ACS custody. Although

warrants have been issued for these three juvenile delinquents, their whereabouts are unknown,

they are at large in the community, and thus far have evaded apprehension.[FN1] [*2]

On April 8, 2013 this Court found that Tilar M. had possessed a toy or imitation firearm,

an unclassified misdemeanor, in violation of New York City Administrative Code §10-131 (g).

At the time that Tilar M. committed the act charged in this petition, he had already been

adjudicated to be a juvenile delinquent and placed in the custody of ACS for the Close to Home

Initiative program on November 12, 2012 by another Family Court Judge following a finding that

he had committed an act constituting the crime of Criminal Trespass in the Second Degree. Both

of Tilar's juvenile delinquency cases were preceded by another proceeding in April 2012 in

which yet another Family Court Judge found him to be a Person in Need of Supervision and

ordered his placement in the custody of ACS with the direction that he be sent to a residential

treatment center (Mental Hygiene Law §1.03 [33]).

In the juvenile delinquency proceeding before this Court, it was determined that Tilar M.

required treatment, supervision, and confinement as he had previously been adjudicated a Person

in Need of Supervision, he had run away from the Close to Home Initiative placement made in

the first juvenile delinquency case, and he had been AWOL from that placement at the time he

committed the crime charged in this case.[FN2] At the conclusion of the dispositional hearing, this

Court concluded that the needs and best interests of the respondent and the need to protect the

community required that he be placed in accordance with Family Court Act §353.3. The Court

further concluded that the least restrictive available alternative for Tilar (Fam. Ct. Act §352.2

[2] [a]; e.g., Matter of Julian O., 80 AD3d 525 [2011]; Matter of Alberto R., 84 AD3d 593 [*3]

[2011]) was a further non-secure placement with ACS for the Close to Home Initiative for 12

months.[FN3]

Christopher L. was found to have committed an act which, were he an adult, would

constitute the felony of Attempted Robbery in the Third Degree (P.L. §§110.00/160.05). After an

an adjudication of juvenile delinquency based upon a determination that he required supervision

and treatment (Fam. Ct. Act §352.1 [1]), he was placed on probation under the supervision of

the New York City Department of Probation for a period of two years (Fam. Ct. Act §§352.2 [1]

[b]; 353.2). The Department of Probation subsequently filed a petition alleging that Christopher

violated the conditions of probation imposed by this Court, and following an adjudication of

violation (Fam. Ct. Act §360.3), the Court revoked the order of probation and entered an order on

January 24, 2013 which placed him in the custody of ACS for placement in the non-secure Close

to Home Initiative program for a period of 18 months (Fam. Ct. Act §360.3 [6]; see also, Fam.

Ct. Act §352.2 [2] [a]).[FN4] [*4]

Tenzin G. entered an admission to having committed an act which, were he an adult,

would constitute the felony of Attempted Assault in the Second Degree (P.L. §§110.00/120.05

[2]). At the conclusion of a dispositional hearing, the Court found that Tenzin was a juvenile

delinquent who required supervision and treatment and that his best interests and the need for

protection of the community required that he be placed under the supervision of the New York

City Department of Probation for a period of 18 months (Fam. Ct. Act §§352.1 [1]; 352.2 [1] [b];

353.2). On September 18, 2012 the Department of Probation filed a petition pursuant to Family

Court Act §360.2, alleging that Tenzin had violated one or more of the court-imposed conditions

of probation. Following a hearing in accordance with Family Court Act §360.3, the Court found

that Tenzin G. had violated the conditions of probation, and the Court proceeded to conduct a

further dispositional hearing.

During the continued dispositional hearing a further juvenile delinquency petition was

filed against Tenzin G. and it was referred to this Court. With respect to this second juvenile

delinquency petition, Tenzin entered an admission that he had committed an act which, were he

an adult, would constitute the felony of Robbery in the Second Degree (P.L. §160.10 [1]). With

the consent of the parties, the second juvenile delinquency petition was then consolidated with

the continued dispositional hearing in the first case in which the Court found that Tenzin had

violated probation. At the conclusion of this dispositional hearing the Court revoked the order of

probation issued in the first delinquency case and Tenzin was adjudicated to be a juvenile

delinquent in need of treatment, supervision, and placement with respect to the second juvenile [*5]

delinquency proceeding.

Upon consideration of the best interests of the respondent and the need for protection of

the community, the Court determined that with respect to both cases, the least restrictive

dispositional alternative was an order placing Tenzin G. in the custody of ACS for the Close to

Home Initiative for a period of 18 months.

ACS and the authorized agencies (Social Services Law §371 [10]) with which Tilar,

Christopher and Tenzin had been placed by ACS subsequently informed the Court that they each

had run away from their Close to Home Initiative placement and were AWOL (see, Social

Services Law §404 [13] [d]). While the Court was further advised that ACS had issued warrants

directing the apprehension of the three juveniles (Social Services Law §404 [13] [e]), because it

was reported that the three juveniles could not be located and apprehended, the Court issued its

own bench warrants for all three (Fam. Ct. Act §153; Social Services Law §404 [13] [d] [iii]).[FN5]

Thereafter, the Court invoked the authority granted by Family Court Act §353.3 (6) with

respect to the three juveniles, and issued orders directing that the juveniles, their attorneys, the

Presentment Agency, and the Commissioner of ACS, show cause why the Court should not

conduct a hearing in accordance with Family Court Act §355.1 to inquire into the need for [*6]

continuing the placement of each respondent in the Close to Home Initiative.[FN6]

When the post-dispositional motions for Tilar M. and Christopher L. came before the

Court on July 16, 2013, neither juvenile delinquent appeared. The Court was advised that both

were still missing from their Close to Home Initiative non-secure placements, that both remained

at large, and that efforts to locate and apprehend them has not succeeded.[FN7]

While the actual inquiry into the need for continuing the placements of Tilar M. and

Christopher L. were stayed pending their voluntary appearance or their arrest and production, the

Court proceeded to inquire into the circumstances surrounding their escape from the custody of

the authorized agencies with which they had been placed by ACS, the efforts made to apprehend

the juveniles, why they could not be found, and whether any additional action should be taken by

the Court to secure the presence of the respondents.

Roy Reynolds is a social worker employed by Children's Village, an authorized agency

located in Dobbs Ferry, Westchester County. According to Mr. Reynolds, Christopher L. arrived

at Children's Village for placement as a juvenile delinquent in the Close to Home Initiative on

March 29, 2013, and he worked with Christopher during his very brief stay at the agency. Mr.

Reynolds recalled that Christopher was "very angry and upset" when he arrived at Children's

Village and that he engaged in "physical altercations" with other juvenile delinquents placed in [*7]

the Close to Home Initiative program. On April 9, 2013, a mere 10 days after he arrived,

Christopher simply walked off the campus at Children's Village, telling Mr. Reynolds that he

"was not going to school", which is located on the campus, and that "he was leaving." Mr.

Reynolds and another agency staff member followed Christopher off the grounds and tried to

persuade him to return with them. Once Christopher reached an intersection in the road, "he ran

away into the woods".

Children's Village reported Christopher L. as "AWOL" to ACS and a missing persons

report was filed with the police department.[FN8] The ACS "Movement Control and Communications

Unit" ("MCCU") notified Reynolds that ACS had issued a warrant for Christopher and

Children's Village proceeded to make further unsuccessful attempts to locate him through

contact with both his mother and Detective Dennis Seger of the New York City Police

Department. The agency also prepared "missing child" flyers for distribution near Dobbs Ferry

and in respondent's home neighborhood in Queens County. After a six day absence, Christopher

returned to the Children's Village campus on April 15, 2013. He met with Ron Reynolds and told

him that he "doesn't want to be there" and he simply walked off the campus again. No force was

applied by Children's Village personnel to prevent Christopher from leaving the campus again.

Unbeknownst to Mr. Reynolds, prior to the sudden reappearance of Christopher L. at

Children's Village on April 15th, this Court had issued its arrest warrant for him on April 10,

2013. Had Mr. Reynolds known of the issuance of the bench warrant, he perhaps could have [*8]

called the Dobbs Ferry police to take Christopher into custody which would theoretically have

led to his production before this Court.

Edith James,[FN9] the mother of Christopher L., testified that she became aware that her

son had escaped from the custody of Children's Village when she received telephone calls from

Mr. Reynolds and Detective Seger advising her to be on the lookout for her son. According to

Ms. James, since April 9, 2013 she has seen Christopher at her home for very brief moments

when he was coming or going, as well as "on the streets around Jamaica", and that she sees him

"every three days or so" and usually early in the morning. Ms. James would telephone Detective

Seger to report these sightings of her son, but he would disappear before police could arrive to

take him into custody. At some point, Ms. James became aware that Christopher had

occasionally been sleeping in an abandoned car which is located in the backyard of her house.

Ajish Nair, a social worker employed by Children's Village, testified about the placement

of Tilar M. with the agency. According to Mr. Nair, Tilar has escaped from Children's Village on

three occasions, the most recent of which occurred on July 10, 2013. According to Nair, the first

escape by Tilar M. occurred on May 21, 2013 and lasted for "two days" and he returned

voluntarily. Tilar's second escape from Children's Village occurred on June 17, 2013 and it

ended when he returned on his own on June 26, 2013. Tilar's last and most recent escape from

custody occurred July 10, 2013. When agency staff discovered Tilar's most recent absence, they

conducted a search in the Village of Dobbs Ferry and they reported him missing to the Dobbs

Ferry Police Department and to ACS, which issued yet another warrant for his apprehension and

return to ACS custody. [*9]

A few days later, Mr. Nair and a staff security officer from Children's Village traveled to

Queens County to search for Tilar. They searched his neighborhood but they did not find him.

They also visited the 113th and the 103rd police precincts in Queens County where they provided

the desk officers at both precincts with a copy of the Family Court bench warrant which they had

in their possession, and they requested police assistance in locating Tilar. Mr. Nair and the

agency security officer also searched for Tilar at locations in Queens which his mother had told then that he frequented, but they were unable to locate him.

Detective Dennis Seger of the New York City Police Department Queens Juvenile

Warrant Squad has been a member of the police service for more than 20 years. He has been

investigating the whereabouts of both adult and juvenile fugitives for the past 12 or 13 years in

connection with their apprehension upon warrants issued out of various courts in New York

City. According to Detective Seger, he is one of only "five" police detectives assigned to

investigate and execute juvenile warrants in the entire City of New York. He stated that he is

presently the only detective assigned to investigate and execute juvenile (i.e. Family Court)

warrants in Queens County, and that there is one detective assigned to Brooklyn, two detectives

assigned in the Bronx, and one detective assigned to Manhattan. The detectives are supervised by

a Sergeant who is responsible for the entire City and who moves from borough to borough.

Detective Seger indicated that prior to the placement of adjudicated juvenile delinquents

with ACS under the Close to Home Initiative, he was responsible for investigating the numerous

bench warrants issued by Family Court for juveniles who have failed to appear for pending

juvenile delinquency cases (see, Fam. Ct. Act §312.2). However, since the inception of the Close

to Home Initiative, Detective Seger and his fellow detectives now have the additional [*10]

responsibility to locate and apprehend adjudicated juvenile delinquents who have run away from

ACS Close to Home Initiative placements. According to Seger, he is usually searching for 15 to

20 Close to Home Initiative escapees whose juvenile delinquency cases were initiated in Queens

County at any give time.

Detective Seger observed that occasionally, the detective assigned to one county will

assist the detective assigned to another county in locating and apprehending a Close to Home

Initiative escapee or a juvenile with a pending delinquency case who is the subject of a Family

Court warrant. This necessarily removes the assisting detective from his or her own home county

and impedes the investigation of the ACS and bench warrants issued juveniles in that county.

Where an arrest is made, the detectives are required to hold the apprehended juvenile until the

Family Court convenes that day, or they must transport the juvenile to the Horizon Detention

Center in the Bronx, if it a weekend or holiday. In either event, this process adds hours to the

detectives' absence from their other duties.

Detective Seger indicated that the volume of juveniles escaping from agency custody

since the inception of Close to Home Initiative on September 1, 2012 has significantly increased

his work load. He further stated that there has been no corresponding increase in police officers

assigned to investigate and execute juvenile warrants since Close to Home began.[FN10] According to [*11]

Detective Seger, prior to the inception of the Close to Home Initiative, he rarely if ever became

involved in searching for and arresting juvenile delinquents who were placed in the custody of

the state Office of Children and Family Services.[FN11]

At the Court's request, Detective Seger proceeded to describe his efforts to locate Tilar

M., Christopher L. and Tenzin G. pursuant to the warrants issued by ACS and this Court. With

respect to Christopher L., Detective Seger maintains regular telephone contact with the juvenile's

mother and she provides him with updates as to her sightings of Christopher at home or in the

neighborhood. Because he previously apprehended Christopher at home on two prior occasions

when he had run away from Close to Home, Detective Seger occasionally stops by the family's

home to try to catch Christopher coming or going. According to Detective Seger, he most

recently saw Christopher at his mother's house on May 14, 2013. When Seger attempted to

apprehend Christopher, he jumped out of a side window, yelled "suck my d**k" at Seger, and [*12]

then proceeded to run down the street and out of sight.

As for Tilar M., Detective Seger stated that he has "never seen" him although he is

actively searching for him. Detective Seger has not invested time into searching for Tenzin G.

as he has information that Tenzin relocated with his family to the City of Utica in Oneida

County, New York. There is no information as to whether anyone is actively searching for

Tenzin G. at this time.[FN12]

Given the recently documented potential for danger to the community posed by juvenile

delinquents who escape from a Close to Home Initiative placement (see, Matter of Arnold P., 39

Misc 3d 1219[A], 2013 NY Slip Op 50669[U] [2013]; O. Yaniv, New York teen who escaped

nonsecure' group home arrested on murder charge, New York Daily News, June 30, 2013), and

the alarmingly large number of escapes by juveniles placed in the ACS Juvenile Justice Initiative

program, common sense would seem to dictate that additional resources be allocated to locate

and apprehend these youth. However, since September of 2012 there appears to have been no

additional law enforcement or social services resources committed to locating juvenile

delinquents who go AWOL, nor any effective solution to stop the torrent of juvenile delinquents

who escape from Close to Home Initiative placements.[FN13] [*13]

The Close to Home Initiative was presented as a plan to provide troubled juvenile

delinquents with needed services in facilities near their homes (Sobie, Supp Prac Commentaries,

McKinney's Cons Laws of NY, Book 29A, 2013 Cum Ann Pocket Part, Family Court Act

§353.3 at 101-102). However, a juvenile who simply walks away from a Close to Home Initiative

placement is receiving no services nor any adult supervision, thereby creating a potential for self-

harm or harm to others. The possibility that juvenile delinquents might escape from community-

based Close to Home Initiative placements was certainly considered when the program was

enacted, and the Legislature has required that ACS report annually as to the number of juvenile

delinquents who escape from Close to Home Initiative placements (Social Services Law §404

[11] [g]).[FN14]

Accordingly, the warrant is continued for each respondent and their cases are continued

pending their involuntary return upon the warrant or their voluntary appearance before the Court.

E N T E R:

___________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

August 6, 2013 Footnotes

Footnote 1:New York City was authorized to operate an approved juvenile justice services Close to

Home Initiative pursuant to Social Services Law §404 in 2012 (L 2012, ch 57, part G), and

ACS began to accept non-secure Close to Home Initiative placements as of September 1, 2012

(see, Close to Home: The First Six Months, City of New York, Administration for Children's

Services at 1 [March 2013], available on www.nyc.gov).

Footnote 2:In accordance with New York State Office of Children and Family Services regulations,

a youth placed in custody by the Family Court is considered to be "AWOL" when the youth, inter alia, "leaves a Division for Youth [OCFS] program or facility or authorized agency program or facility without permission" (9 NYCRR §181.1 [a]).

Footnote 3:The dispositional provisions of the juvenile delinquency statute were amended at the time that the Close to Home Initiative legislation was enacted. The current version of Family Court Act §353.3 (2-a) provides, in pertinent part, that: (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 commissioner of the office of children and family services for placement in a limited secure or secure level of care" (emphasis added). Where the Court fails to order the

least restrictive dispositional alternative, the order of disposition may be reversed by an appellate court (e.g., Matter of David F., 69 AD3d 720 [2010]; Matter of Genny J., 78 AD3d 1181, 1182 [2010]; Matter of Jonnevin B., 89 AD3d 572 [2012]).

Footnote 4:In connection with the placement of Christopher L. with the Close to Home Initiative, the Court directed that ACS and any authorized agency with which he might be placed provide the juvenile with all services recommended in the report of the Family Court Mental Health Services Clinic and the report submitted by Elmhurst Hospital Center (Fam. Ct. Act §353.3 [2]). As Christopher has substance abuse and mental health issues requiring treatment, the Court further directed that he not be placed in a non-secure program which utilizes the "Missouri Model".

Footnote 5:The Court's authority to issue warrants for juvenile delinquents who abscond from a

Close to Home Initiative placement is delineated by both Family Court Act §153 and the

Close to Home Initiative statute itself (Social Services Law §404 [13] [d] [iii]; Fam. Ct. Act

§151). While ACS is authorized to issue "warrants" for juvenile delinquents who run away from

placement, such an "administrative warrant" differs from a judicial arrest or bench warrant which

constitutes a judicial mandate directing the arrest and production of a person before a particular court (People v. Briggs, 19 NY2d 37, 42 [1966]).

Footnote 6:Family Court Act §353.3 (6) provides that "[t]he court may at any time conduct a hearing in accordance with section 355.1 of this part concerning the need for continuing a placement."

Footnote 7:Tenzin Gawa reportedly escaped from his Close to Home Initiative non-secure placement on or about June 15, 2013. The order to show cause in his case was not issued until

July 25, 2013 and in Mr. Gawa's absence, limited proceedings were conducted concerning his case on August 1 and 2, 2013. The Court's inquiry as to the need for the continued placement

of Mr. Gawa are stayed until such time as he appears or is returned upon the bench warrant.

Footnote 8:Where a youth is AWOL from OCFS or authorized agency custody, "[a] warrant must be requested or issued no later than 24 hours after a youth is considered AWOL" (9 NYCRR §181.3 [a]), and the Family Court which placed the juvenile must be notified of the youth's AWOL status "no later than three business days" after the youth is AWOL (9 NYCRR §181.3 [b]).

Footnote 9:Pseudonym.

Footnote 10:The Court observed that the warrants issued by the ACS Movement Control and

Communications Unit (MCCU) bear a legend which states "WARRANT # (if applicable)"

followed by a number and what appears to be the year. For example, a warrant for the return of

Christopher L. on February 15, 2013 after his escape from St Vincent's Services in Bayside

under his initial placement bears the warrant number "148-2013". A warrant issued for Tilar M. on February 25, 2013 following an escape from a facility identified as "BT-6 Ave" (possibly referring to Boys Town, an authorized agency), bears the warrant number of "216-2013", and a warrant issued by ACS on May 21, 2013 following Tilar's escape from Children's Village bears the warrant number "598-2013". Similarly, the warrant issued by MCCU for Tenzin G. after his escape from "240 St. John's Place, Brooklyn, NY 11217"on June 23, 2013, bears warrant number "726-2013", and a warrant issued by ACS MCCU for another juvenile delinquent not the subject of this decision relates to an escape from "MDP Elmhurst" on July 31, 2013 and this warrant bears the number "838-2013". When the Court inquired whether the warrant numbers corresponded to the actual number of warrants issued by ACS since January 1, 2013, counsel for ACS could only report that the warrant numbers correspond to the number of warrant "requests" received by MCCU from Close to Home Initiative facilities (see, Social Services Law §404 [13] [d] [ii]). Thus, while each warrant number apparently represents an AWOL incident, a warrant may not have been issued under a particular sequential number as, for example, a juvenile might return to the facility after a brief reported period of unauthorized absence. Although ACS indicated that "[w]e track all of the warrants. We have documentation as to every warrant that has been issued on every case from New York City", the total number of Close to Home Initiative warrants which were actually issued by MCCU under Social Services Law §404 (13) (e) was not divulged, despite the Court's request for that information.

Footnote 11:The Office of Children and Family Services ("OCFS") has its own "Warrant Unit" which locates and apprehends juvenile delinquents who escape from OCFS custody (Executive

Law §504-b).

Footnote 12:While the Court was advised that peace officers of the New York City Sheriff's Department (see, Criminal Procedure Law §2.10 [2]) are also responsible for locating and apprehending escapees from the Close to Home Initiative, Detective Seger stated that he has never had occasion to observe any Deputy Sheriffs assist in the apprehension of juveniles wanted on Family Court or ACS warrants.

Footnote 13:ACS can hardly claim to be surprised by the fact that juvenile delinquents run away from Close to Home Initiative non-secure placements. As reported in one newspaper article, "ACS spokesman Michael Fagan said the agency expected some AWOL incidents when the program launched in September" (Yaniv, Paddock, McShane, Exclusive: Close to Home juvenile reform program creating threat to public safety': judge, New York Daily News, May 2, 2013).

Footnote 14:July 31st was the 212th day of 2013 and it appears that there have been 838 escapes or AWOL incidents reported to ACS since January 1, 2013. While the actual number of issued warrants appears to be a lesser number, there appears to be an average of 3.95 AWOL incidents per day. Based upon the average and assuming that it remains steady, with 153 days following July 31, 2013, it is possible that there would be an additional 604 reported escapes or AWOLs between August 31, 2013 and December 31, 2013, for a total number of 1,442 incidents.