senate Bill S4301

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 28 / Mar / 2011
    • REFERRED TO CHILDREN AND FAMILIES
  • 01 / Jun / 2011
    • 1ST REPORT CAL.924
  • 02 / Jun / 2011
    • 2ND REPORT CAL.
  • 06 / Jun / 2011
    • ADVANCED TO THIRD READING
  • 24 / Jun / 2011
    • COMMITTED TO RULES
  • 04 / Jan / 2012
    • REFERRED TO CHILDREN AND FAMILIES

Summary

Relates to truancy allegations in persons in need of supervision and child protective proceedings in family court; requires notification of the school district or local educational agency when such district or agency is not the potential petitioner and where the petition includes allegations of truancy and/or school misbehavior.

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Bill Details

Versions:
S4301
Legislative Cycle:
2011-2012
Current Committee:
Senate Children And Families
Law Section:
Family Court Act
Laws Affected:
Amd §§735, 736, 742, 1012, 1031 & 1035, Fam Ct Act

Votes

2
1
2
Aye
1
Nay
3
aye with reservations
0
absent
0
excused
0
abstained
show Children and Families committee vote details
aye (2)
nay (1)
aye wr (3)

Sponsor Memo

BILL NUMBER:S4301

TITLE OF BILL:
An act
to amend the family court act, in relation to truancy allegations in
persons in need of supervision and child protective proceedings in
family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4301

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 28, 2011
                               ___________

Introduced by Sen. SAVINO -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Children and Families

AN ACT to amend the family court act, in relation to truancy allegations
  in persons in need of supervision and child protective proceedings  in
  family court

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (iii)  of  subdivision  (d),  paragraph  (ii)  of
subdivision  (g)  and subdivision (h) of section 735 of the family court
act, as amended by section 7 of part E of chapter  57  of  the  laws  of
2005, are amended to read as follows:
  (iii) where the entity seeking to file a petition is a school district
or local educational agency OR WHERE THE PARENT OR OTHER POTENTIAL PETI-
TIONER  INDICATES THAT THE PROPOSED PETITION WILL INCLUDE TRUANCY AND/OR
CONDUCT IN SCHOOL AS AN ALLEGATION, the  designated  lead  agency  shall
review the steps taken by the school district or local educational agen-
cy  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.   WHERE THE SCHOOL DISTRICT OR LOCAL
EDUCATIONAL AGENCY IS NOT THE POTENTIAL PETITIONER, THE DESIGNATED  LEAD
AGENCY SHALL PROVIDE NOTICE TO SUCH DISTRICT OR AGENCY OF ANY CONFERENCE
WITH  THE POTENTIAL PETITIONER IN ORDER FOR THE SCHOOL DISTRICT OR LOCAL
EDUCATIONAL AGENCY TO WORK WITH THE DESIGNATED LEAD  AGENCY  TO  RESOLVE
THE  TRUANCY OR SCHOOL BEHAVIORAL PROBLEMS OF THE YOUTH SO AS TO OBVIATE
THE NEED TO FILE A PETITION OR, AT MINIMUM, TO RESOLVE THE EDUCATION-RE-
LATED ALLEGATIONS OF THE PROPOSED PETITION.
  (ii) The clerk of the court shall accept a petition for filing only if
it has attached thereto the following:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10143-01-1

S. 4301                             2

  (A) if the potential petitioner is the parent or other person  legally
responsible  for  the  youth,  a  notice from the designated lead agency
indicating there is no bar to the filing of the petition as  the  poten-
tial  petitioner  consented  to  and  actively participated in diversion
services; and
  (B)  a  notice  from  the  designated  lead agency stating that it has
terminated diversion services because it has determined that there is no
substantial likelihood that the youth and his or her family will benefit
from further attempts, and that  the  case  has  not  been  successfully
diverted[.]; AND
  (C) WHERE THE PROPOSED PETITION CONTAINS ALLEGATIONS OF TRUANCY AND/OR
SCHOOL  MISBEHAVIOR,  WHETHER OR NOT THE SCHOOL DISTRICT OR LOCAL EDUCA-
TION AGENCY IS THE PROPOSED PETITIONER, A  NOTICE  FROM  THE  DESIGNATED
LEAD  AGENCY  REGARDING THE DIVERSION EFFORTS UNDERTAKEN AND/OR SERVICES
PROVIDED BY THE DESIGNATED LEAD AGENCY AND/OR BY THE SCHOOL DISTRICT  OR
LOCAL  EDUCATIONAL  AGENCY  TO THE YOUTH AND GROUNDS FOR CONCLUDING THAT
THE EDUCATIONAL PROBLEMS COULD NOT BE RESOLVED ABSENT THE  FILING  OF  A
PETITION UNDER THIS ARTICLE.
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, may be admitted into evidence at  a  fact-finding
hearing or, if the proceeding is transferred to a criminal court, at any
time prior to a conviction.
  S  2.  Section  736 of the family court act is amended by adding a new
subdivision 4 to read as follows:
  (4) WHERE THE PETITION CONTAINS ALLEGATIONS OF TRUANCY  AND/OR  SCHOOL
MISBEHAVIOR AND WHERE THE SCHOOL DISTRICT OR LOCAL EDUCATIONAL AGENCY IS
NOT  THE  PETITIONER,  THE  COURT SHALL CAUSE A COPY OF THE PETITION AND
NOTICE OF THE TIME AND PLACE TO BE  HEARD  TO  BE  SENT  TO  THE  SCHOOL
DISTRICT  OR  LOCAL EDUCATIONAL AGENCY IDENTIFIED BY THE DESIGNATED LEAD
AGENCY IN ITS NOTICE PURSUANT TO SUBPARAGRAPH (C) OF PARAGRAPH  (II)  OF
SUBDIVISION  (G)  OF  SECTION SEVEN HUNDRED THIRTY-FIVE OF THIS ARTICLE.
SUCH SCHOOL DISTRICT OR LOCAL EDUCATIONAL AGENCY SHALL BE JOINED BY  THE
COURT  AS  A  NECESSARY  PARTY AND MAY BE ASKED TO PROVIDE ASSISTANCE IN
ACCORDANCE WITH SECTION TWO HUNDRED FIFTY-FIVE OF  THIS  ACT  WHERE  THE
COURT  DETERMINES THAT SUCH PARTICIPATION AND/OR ASSISTANCE WOULD AID IN
THE RESOLUTION OF THE PETITION.
  S 3. Subdivision (b) of section  742  of  the  family  court  act,  as
amended  by  section  9  of part E of chapter 57 of the laws of 2005, is
amended to read as follows:
  (b) At the initial appearance  of  the  respondent,  the  court  shall
review  any  termination of diversion services pursuant to such section,
and the  documentation  of  diligent  attempts  to  provide  appropriate
services  and  determine  whether  such efforts or services provided are
sufficient [and]. THE COURT may, AT ANY TIME, subject to the  provisions
of  section  seven hundred forty-eight of this article, order that addi-
tional diversion attempts be undertaken by the designated  lead  agency.
The  court  may  order  the youth and the parent or other person legally
responsible for the youth to participate in diversion services.  If  the
designated  lead agency thereafter determines that [the] A case REFERRED
FOR DIVERSION EFFORTS UNDER THIS SECTION has been successfully resolved,
it shall so notify the court, and the court shall dismiss the petition.

S. 4301                             3

  S 4. Subparagraph (A) of paragraph (i) of subdivision (f)  of  section
1012  of  the family court act, as amended by chapter 469 of the laws of
1971, is amended to read as follows:
  (A)  in  supplying  the child with adequate food, clothing, shelter or
education in accordance with the  provisions  of  part  one  of  article
sixty-five  of  the  education  law, or medical, dental, optometrical or
surgical care, though financially able to do so or offered financial  or
other  reasonable  means to do so, OR, IN THE CASE OF AN ALLEGED FAILURE
OF THE RESPONDENT TO PROVIDE EDUCATION 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; or
  S  5.  Section 1031 of the family court act is amended by adding a new
subdivision (g) to read as follows:
  (G) WHERE A PETITION UNDER THIS ARTICLE CONTAINS AN  ALLEGATION  OF  A
FAILURE  BY  THE RESPONDENT TO PROVIDE EDUCATION TO THE CHILD IN ACCORD-
ANCE WITH ARTICLE SIXTY-FIVE OF THE EDUCATION LAW, REGARDLESS OF WHETHER
SUCH ALLEGATION IS THE SOLE ALLEGATION OF  THE  PETITION,  THE  PETITION
SHALL  RECITE  THE  EFFORTS  UNDERTAKEN BY THE PETITIONER AND THE SCHOOL
DISTRICT OR LOCAL EDUCATIONAL AGENCY TO AMELIORATE SUCH ALLEGED  FAILURE
PRIOR  TO THE FILING OF THE PETITION AND THE GROUNDS FOR CONCLUDING THAT
THE EDUCATIONAL PROBLEMS COULD NOT BE RESOLVED ABSENT THE  FILING  OF  A
PETITION UNDER THIS ARTICLE.
  S  6.  Section 1035 of the family court act is amended by adding a new
subdivision (g) to read as follows:
  (G) WHERE THE PETITION FILED UNDER THIS ARTICLE CONTAINS AN ALLEGATION
OF A FAILURE BY THE RESPONDENT TO PROVIDE  EDUCATION  TO  THE  CHILD  IN
ACCORDANCE WITH ARTICLE SIXTY-FIVE OF THE EDUCATION LAW, THE COURT SHALL
CAUSE  A  COPY  OF  THE  PETITION AND NOTICE OF THE TIME AND PLACE TO BE
HEARD TO BE SENT TO THE SCHOOL  DISTRICT  OR  LOCAL  EDUCATIONAL  AGENCY
IDENTIFIED BY THE PETITIONER IN THE PETITION IN ACCORDANCE WITH SUBDIVI-
SION (G) OF SECTION ONE THOUSAND THIRTY-ONE OF THIS ARTICLE. SUCH SCHOOL
DISTRICT  OR  LOCAL EDUCATIONAL AGENCY SHALL BE JOINED BY THE COURT AS A
NECESSARY PARTY AND MAY BE ASKED TO  PROVIDE  ASSISTANCE  IN  ACCORDANCE
WITH  SECTION  TWO HUNDRED FIFTY-FIVE OF THIS ACT WHERE THE COURT DETER-
MINES THAT SUCH PARTICIPATION AND/OR ASSISTANCE WOULD AID IN THE  RESOL-
UTION OF THE PETITION.
  S  7.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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