BILL NUMBER:  S5714

 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 his Family
Court Advisory and Rules Committee.

This measure would amend Articles seven and ten of the Family Court
Act to remedy the unwelcome consequences of geographic diversity in
PINS and child protective proceedings involving truancy allegations.

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 need for court
intervention in thousands of cases statewide. In cases alleging
truancy and school misbehavior brought by a school district or local
educational agency, 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 Family Court can be expected to resolve educational
problems without the involvement of educators.

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 at all in New York City, where
parents, not school officials, initiate PINS proceedings. This has
created a serious disparity in the 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., 121 A.D.3d 985 (2nd Dept., Oct. 22, 2014); 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
James L., 74 A.D.3d 1775 (4th Dept., 2010); In the Matter of Leslie H.
v. Carol MD., 47 A.D.3d 716 (2nd Dept., 2008); In the Matter of Rajan
M, 35 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 unavailability 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 subject to educational
neglect petitions, as the filing of such a 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 is an effort to redress this problem. With respect to
PINS proceedings, the measure would remedy the geographic disparity by
amending section 735 of the Family Court Act 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 the potential petitioner, the 2005 statutory requirement
would become applicable statewide. Second, again regardless of the
potential petitioner, the measure would require the lead diversion
agency to notify the local school district or educational agency of
conferences, so that educators can provide assistance in resolving
problems, whether through school transfers, evaluations or other
efforts. Moreover, where these efforts have proven unsuccessful and a
PINS petition has been filed alleging truancy or other school-related
problems, section 736 would be amended to require that the school
district or local educational agency be notified of the court
proceeding and be allowed to participate and provide assistance where
the court determines that such participation and for assistance would
aid in the resolution of the petition.

Further, in a provision affecting PINS proceedings statewide, this
measure would amend section 742 of the Family Court Act to permit the
court to refer PINS proceedings to diversion agencies not simply upon
a juvenile's initial court appearance but at any stage in the
proceeding. Frequently, the appropriateness of 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.

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. If court intervention is nonetheless required,
Family Court would be authorized to notify them if their assistance
would be helpful in resolving the petitions. First, the definition of
educational neglect in section 1012(f) of the Family Court Act would
be amended to require proof of parental failure to provide educational
services to a 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 failure to resolve educational problems through diversion
a prerequisite to filing. Second, section 1031 would require that
these efforts be recited in the petition, along with "the grounds for
concluding that the education-related allegations 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 section 1046(b). Finally, a notice
of pendency of the petition in accordance with section 1035 would have
to be sent to the local educational agency or school district
identified by the child protective agency. As in proposed section 736,
in order that the education agency or school district may be enlisted
in appropriate cases to provide necessary assistance, section 1035
would be amended to authorize Family Court to notify the school
district or local educational agency and to allow their participation
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, the report noted that Erie County Family Court had 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, demonstrated 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, we are concerned that such a step would simply result in
youth being re-labelled 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 and more recent child abuse
fatalities have demonstrated, educational problems reported to the
State child abuse and maltreatment hotline sometimes reflect just the
"tip of the iceberg." Investigation and possible intervention by the
child protective system may be necessary, and, if indicated,
intervention by Family Court as well in the frequent situations where
the initial school-related complaint reflects 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 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,
given an opportunity to be heard so that they may be enlisted to
participate in resolving education issues. 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 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.

 2016 LEGISLATIVE HISTORY :

Senate 7846 (Sen. Avella) (committed to Rules)
Assembly 9941 (M. of A. Davila) (PASSED)

 2011-12 LEGISLATIVE HISTORY :

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