Relates to truancy allegations in persons in need of supervision and child protective proceedings in family court

The enactment of a statutory presumption for diversion of Persons in Need of Supervision (PINS) proceedings in 2005 has succeeded in linking troubled youth and their families to services without the need for court intervention in many cases statewide. In cases alleging truancy and school misbehavior, the legislation contained an important requirement for the designated lead county PINS diversion agency to "review the steps taken by the school district or local educational agency to improve the youth's attendance and/or conduct in school and attempt to engage the school district or local educational agency in further diversion attempts, if it appears from review that such attempts will be beneficial to the youth." [Family Court Act § 735(e)(iii)]. This requirement has had the salutary effect of engaging school officials in the process of resolving school problems, thus obviating unnecessary court involvement. Neither diversion agencies nor ultimately the Family Court can be expected to resolve educational problems without the involvement of educators.

However, the mandate only applies to cases in which the potential petitioner is a school district or local educational agency and thus has had no applicability in New York City, where parents, not school officials, initiate PINS proceedings. As the Vera Institute noted, in its report, Rethinking Educational Neglect for Teenagers: New Strategies for New York State (Nov., 2009) at p. 20, "Only 405 attendance officers and 3,004 guidance counselors serve more than one million school children in the city." See also, Getting Teenagers Back to School: Rethinking New York State's response to Chronic Absence (Vera Inst.,Oct., 2010) at p. 6. Parents, working with the local PINS diversion agency, bear the burden of addressing their children's truancy or school misbehavior without any responsibility on the part of professional educators to make prior efforts to alleviate the problems. Parents who fail to act or whose attempts are unsuccessful all too often find themselves the subject of educational neglect petitions. The Vera Institute report, in fact, documented that educational neglect petitions are more prevalent in New York City. Nineteen percent of children reported to the state child abuse and maltreatment hotline in New York City in 2008 included an allegation of educational neglect, compared to ten percent statewide. Rethinking

Educational Neglect for Teenagers, supra, p. 4. Child protective agencies, like PINS diversion agencies, cannot resolve school-related problems without the engagement of educators. Clearly, a comprehensive response to both education-related PINS and educational neglect cases statewide is warranted that will bring educators to the table as part of the solution.

This measure would amend Articles 7 and 10 of the Family Court Act. With respect to PINS proceedings, it amends Family Court Act §735 to require designated lead PINS diversion agencies to review efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations. Since this would apply regardless of the potential petitioner, the 2005 statutory requirement would become applicable statewide. Second, again regardless of the potential petitioner, the measure requires the diversion agency to notify the local school district or educational agency of conferences, so that educators can assist in resolving problems, whether through school transfers, evaluations or other efforts. Third, just as diversion agencies must include documentation of their efforts to avoid court involvement as a prerequisite to the filing of PINS petitions generally, the measure would include a similar requirement specifically addressing efforts in the education area where educational problems are alleged. The measure would further amend Family Court Act §742 to permit Family Court to refer PINS proceedings to diversion agencies not simply upon the initial court appearance but at any stage in the proceeding. Finally, Family Court Act §736 would be amended to require that, where a PINS petition is filed that alleges truancy or another school-related problem, the school district or local educational agency must be notified of the proceeding, joined as a necessary party and enlisted to provide assistance "where the court determines that such participation and/or assistance would aid in the resolution of the petition."

Similar provisions would be added with respect to educational neglect proceedings in Article 10 of the Family Court Act in order to engage education officials in resolving educational neglect problems without the need of court intervention and, if court intervention is nonetheless required, to engage them in the process of resolving the petitions. First, a presumption in favor of out-of-court diversion of educational neglect cases - or at least educational neglect allegations - would be added. The definition of educational neglect in Family Court Act § 1012(f) would be amended to require proof of parental failure to provide educational services to the child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition." Second, Family Court Act § 1031 would require that these efforts be recited in the petition, along with "the grounds for concluding that the educational problems could not be resolved absent the filing of a petition." As allegations in the petition, they would, therefore, need to be proven by a preponderance of the evidence in accordance

with Family Court Act § 1046(b). Finally, a notice of pendency of the petition in accordance with Family Court Act § 1035 would have to be sent to the local educational agency or school district identified by the child protective agency. As in proposed Family Court Act §736, in order that the education agency or school district would be enlisted to provide necessary assistance, Family Court Act § 1035 would be amended to require that the school district or local educational agency be joined as a necessary party "where the court determines that such participation and/or assistance would aid in the resolution of the petition."

In sum, a far more comprehensive approach amending both the education PINS and educational neglect statutes is needed. Educators must play a vital role in both the PINS and child protective processes, and must be available to be called upon to assist in diverting both categories of cases from the court system where possible. Where petitions ale filed in Family Court, education officials must be notified and made parties so that they may be enlisted to participate in resolving education issues in the cases. This measure, which would enhance both the diversion and the Family Court processes on a statewide basis for education-related PINS and educational neglect proceedings, would be enormously helpful ensuring that professional educators become part of the solution for educational problems.

This measure would have no fiscal impact upon the State, and would take effect on the ninetieth day after it shall have become a law.

Legislative history

None. New proposal.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law.