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

However, the pleading and documentation mandate regarding truancy and other school-related problems 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. This has created a serious disparity in treatment of youth depending upon where in the State they reside, a disparity of constitutional magnitude. Compliance with the requirement for PINS petitioners to plead and to attach documentation from the lead diversion agency regarding diligent efforts to resolve PINS problems, including truancy, has been held to be a non-waivable jurisdictional defect requiring dismissal and, at the appellate stage, reversal. See In the Matter of Sage G., -A.D.3d-, 2014 WL 5350471 (2' Dept., Oct. 22, 2014); In the Matter of James L., 74 A.D.3d 1775 (4th Dept., 2010); In the Matter of Joseph C.E., 99 A.D.3d 1245 (4th Dept., 2012); In the Matter of Nicholas R.Y., 91 A.D.3d 1321 (4th Dept., 2012); In the Matter of Leslie H. v. Carol MD., 47 A.D.3d 716 (2nd Dept., 2008); In the Matter of Rajan35 A.D.3d 863 (2d Dept., 2006). Thus, PINS petitions containing identical truancy or school misbehavior allegations, but deficient regarding pleading and documentation of diversion efforts, are subject to dismissal if filed outside New York City but not if filed in New York City. Equally important, youth with alleged school-related problems outside New York City have the right to the involvement of the local school district or educational agency both in taking steps to prevent the filing of a PINS petition and, if those efforts have not proven successful, in working with the lead diversion agency on further diversion efforts deemed beneficial to the juveniles.

The lack of education officials to initiate PINS petitions in New York City has been long-standing and has had the side effect of increasing the filing of educational neglect proceedings against parents. 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 of New York City youth, working with the local PINS diversion agency, thus 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 file a PINS petition as suggested by a school official or whose attempts to resolve a school-related problem are unsuccessful all too often find themselves the subject of educational neglect petitions, as the filing of an educational neglect petition is often threatened as a consequence of parental failure to file a PINS petition against his or her child. 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 that will bring educators to the table as part of the solution, both pre- and post-petition, is warranted .

This measure would amend both Article 7 and Article 10 of the Family Court Act. With respect to PINS proceedings, the measure would remedy the geographic disparity by amending Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations. Since this would apply regardless of who is the potential petitioner, the 2005 statutory requirement would become applicable statewide. Second, again regardless of who is the potential petitioner, the measure requires the lead diversion agency to notify the local school district or educational agency of conferences, so that educators can provide assistance in resolving the problems, whether through school transfers, evaluations or other efforts. Moreover, Family Court Act § 736 would be amended to require that, where these efforts have proven unsuccessful and a PINS petition has been filed alleging truancy or other school-related problem, the school district or local educational agency must be notified of the court proceeding and may be 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." Significantly, flexibility may be afforded to school officials so that the assistance they provide to the lead diversion agency at the diversion stage, as well as their participation in court proceedings where warranted, would not unduly interfere with their schedules.

Further, in a provision affecting PINS proceedings statewide, the measure would amend Family Court Act § 742 to permit the Family Court to refer PINS proceedings to diversion agencies not simply upon the juvenile's initial court appearance but at any stage in the proceeding. Frequently, the potential for diversion of a PINS proceeding without adjudication appears subsequent to the juvenile's first appearance. Allowing flexibility for Family Court to refer a matter for diversion at any point will fulfill the statutory goal of the 2005 PINS diversion statute, that is, to avoid unnecessary PINS adjudications and costly placements.

In order to minimize the unnecessary filing of educational neglect petitions against parents, the measure would add similar provisions that, in effect, would establish a rebuttable presumption in favor of diversion. Child protective agencies would enlist the aid of education officials in resolving educational neglect problems without the need for court intervention and, if court intervention is nonetheless required, Family Court would be authorized to engage them in the process of resolving the petitions. First, 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," thus making the failure to resolve educational problems through diversion a prerequisite to filing. 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 may be enlisted in appropriate cases to provide necessary assistance, Family Court Act § 1035 would be amended to authorize the Family Court to join the school district or local educational agency as a necessary party "where the court determines that such participation and /or assistance would aid in the resolution of the petition."

Many schools already make efforts to resolve children's truancy and misbehavior without either PINS or educational neglect proceedings and for these schools the measure would simply require them to indicate what these efforts are in the increasingly rare cases in which such efforts fail. The 2009 Vera Institute report provides encouraging evidence of success in addressing school-related problems in jurisdictions in which the professional educational community takes an active role. Public School 55 in Bronx County was cited as an example where a comprehensive approach taken by a school principal has resulted in an impressive 94% attendance rate. Id. at pages 20-21. Likewise, where PINS, neglect and juvenile delinquency petitions have been filed, Erie County Family Court has a dedicated judge who, with a team comprised of representatives of the school system and the departments of probation, mental health and social services, as well as treatment providers, has had success in improving children's school attendance and grades, while sharply minimizing out-of-home placements. Id. at pages 14-15.

At the same time, the 2009 Vera Institute report, as well as the October, 2010 follow-up report, document the ineffectiveness of placing the burden solely upon child protective agencies and parents to address children's educational problems through Family Court. Child protective workers generally lack "specialized skills, relationships, or experience required to navigate the education system, diagnose learning needs, and advocate for the educational rights of youth." Further, "only a few counties have preventive services programs that focus on engaging teenagers in school; where these services exist, the need far exceeds the programs' capacities." Getting Teenagers Back to School, supra, p. 2.

While both the 2009 and 2010 Vera Institute reports suggest that the educational neglect statute should be repealed as it applies to youth 13 and older, our Advisory Committee counsels us that such a step would simply result in the youth being relabelled as PINS without necessarily providing professional assistance in resolving their educational problems. Far more effective - and consistent with other recommendations in the reports - would be approaches to both PINS and educational neglect cases that make educators partners in the resolution of the problems they identify, preferably without the need for court intervention. In recommending blended funding among social services and education agencies to address teen truancy, the 2010 Vera report suggests that the mechanism "should be flexible and avoid involving the family in the child protective or PINS systems." Id. at p.6. Concomitantly, as the tragic case of Nixzmary Brown demonstrated, educational problems reported to the State child abuse and maltreatment hotline sometimes reflect just the "tip of the iceberg," thus warranting investigation and possible intervention by the child protective system and, if necessary, the Family Court where the initial school-related complaint turns out to be only a hint of a much larger, more complex problem of child maltreatment.

This measure recognizes that a comprehensive approach that amends both the education-related PINS and educational neglect statutes is needed in order to avoid unnecessary court intervention and effectively resolve children's educational problems. 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 are filed in Family Court, education officials must be notified and, in appropriate cases, joined as parties so that they may be enlisted to participate in resolving education issues. The Committee's proposal, 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 in ensuring that professional educators become part of the solution for educational problems.

This measure, which would have no fiscal impact on the State, would take effect 90 days after it shall have become a law.

2011-12 LEGISLATIVE HISTORY :

OCA 2011-39 Senate 4301 (Sen. Savino) (ref to Children and Families)