BILL NUMBER:  S7846

 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 and Rules Advisory 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 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 the 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 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)