New York Family Law Blog
A New York Family Lawyer said that, New York City Children’s Services (hereinafter NYCCS) filed a petition against respondent mother alleging that her son’s physical, mental or emotional condition had been impaired or was in imminent danger of becoming impaired, as a result of her failure to exercise a minimum degree of care in supplying him with an adequate education in accordance with the provisions of part I of article 65 of the Education Law. Specifically, the petition alleges that the boy missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.
A New York Child Custody Lawyer said that, on the day the petition was filed, the boy was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. The fact-finding hearing was conducted on July 29, 2008, November 17, 2008 and January 7, 2009. NYCCS called one witness, a caseworker, on its direct case. She testified that the original oral report transmission (hereinafter ORT) was received from the Children’s Aid Society on June 14, 2007. That day, NYCCS convened a case conference.
The proof with respect to educational neglect consisted solely of the records that NYCCS introduced into evidence including the ORT, the boy’s school records from the 2006-2007 and 2007-2008 school years, the ORT dated September 18, 2008, the ORT dated November 21, 2008, and his school records from the 2007-2008 school year. His school records establish numerous unexcused absences during the period prior to the filing of the petition. For the 2006-2007 school year, he attended P.S. 582 during September 2006. An attendance sheet from P.S. 582 indicates that he was absent seven days that month and late five times. Thereafter he was suspended for fighting.2 after his suspension, he attended P.S. 252 in February 2007. An attendance sheet from P.S. 252 indicates that he was absent four days in February 2007. After that, he was transferred to a “suspension school,” P.S. 607 or the Academy, from February 2007 until January 2008.
A Nassau County Family Lawyer said the respondent mother testified on her own behalf. She works for the Department of Health where she “writes decisions, defaults or whatever things the judges send to her office.” Respondent testified that she first learned that her son was skipping school in 2006, when a friend saw him playing basketball on a school day. She described the efforts that she and her son’s father then made in an attempt to ensure that their son attended school every day. She testified that she immediately contacted school authorities to inquire about the extent of the problem. After that, she maintained ongoing contact with school personnel to monitor his attendance. She and her son’s father repeatedly met with school officials, at times more frequently than once per week.
Respondent spoke with her son repeatedly about the importance of completing his education. She tried to set an example for him by attending college herself. She took away his privileges. She removed his PlayStation from his room as well as other games, his DVD player, his cable television and Internet connection. She discontinued his allowance and, in an effort to ensure that he did not return to the house after she went to work, she took away his keys. During their many meetings with school personnel, school officials had little concrete advice for the parents although they eventually suggested that they file a PINS petition. When respondent went to Family Court to file the petition, the case was diverted and respondent was referred to the Children’s Aid Society.
A Nassau County Child Custody Lawyer said that, on its rebuttal case, NYCCS called the Children’s Aid Society. She testified that non-respondent father first brought the boy to the Children’s Aid Society on April 10, 2007, seeking help because the parents were unable to get their son to go to school. The father indicated that he was seeking to pursue a PINS case. According to her, she next had a session on April 26, 2007 with respondent and the boy at which she offered them individual and family counseling. She scheduled a follow-up visit for May 8, 2007. That visit was cancelled, as was the rescheduled visit on May 22, 2007. On June 14, 2007, she called in an ORT. Thereafter, on June 19, 2007, she attempted, without success, to make a home visit. She then closed the case.
A Kings Abuse and Neglect Lawyer said that, at the conclusion of the fact-finding hearing, respondent mother and the attorney for the child moved to dismiss the petition asserting that NYCCS failed to prove neglect pursuant to Family Court Act § 1012 (f) (i) (A) and that, in any event, the aid of the court is not required pursuant to Family Court Act § 1051 (c).
The issue in this case is whether the neglect proceedings should prosper against the boy’s parents.
In the instant case, NYCCS presented a prima facie case of educational neglect by introducing certified and delegated school records documenting excessive unexcused absences. The burden of going forward shifted to respondent to rebut NYCCS’s prima facie case. The parties differ on whether respondent has satisfied that burden.
NYCCS argues that she did not. NYCCS asserts that the documentary evidence establishes a prima facie case and that the burden of going forward thereafter shifted to respondent to demonstrate that the child was either attending school or receiving the required instruction in another place. NYCCS suggests that once the educational records were introduced and respondent failed to establish that the child was receiving the required instruction, the court was required to presume parental failure and harm or potential harm to the child. In any event, NYCCS asserts that even if a prima facie case can be rebutted by evidence that the parent exercised a minimum degree of care, respondent in this case failed to submit sufficient evidence. Finally, NYCCS asserts that absent a PINS adjudication, the court is precluded from finding that the child is beyond respondent’s ability to control. Since here, it is undisputed that the boy missed an excessive number of school days and that he did not consistently attend an alternate school or receive home instruction, NYCCS asserts that a finding of educational neglect is required.
Respondent and the attorney for the child disagree. They assert that educational neglect is not a strict liability offense. They contend that proof of a prima facie case creates only a permissible inference of parental failure and impairment or imminent risk of impairment. They assert that proof of educational neglect also requires a showing of harm or imminent risk of harm that is clearly attributable to the parent’s failure to exercise a minimum degree of care. Accordingly, they contend that a prima facie case can be rebutted by evidence that the parent exercised reasonable care and that the child is beyond the parent’s ability to control. They assert that in the instant case, the child’s failure to attend school is not attributable to any unwillingness on respondent’s part to exercise reasonable care. Indeed, they assert that respondent has done everything possible to ensure that the child attended school but that her efforts were unsuccessful since he is beyond her ability to control. Finally, they emphasize that the boy was promoted at the end of each academic year and that, therefore, there is no evidence of actual impairment.
Family Court has Jurisdiction over all Cases Involving Alleged Violations of Article 65 of the Education Law. Article 65, part I of the Education Law, specifically section 3205 (1) (a), requires that all children between the ages of 6 and 16 attend school on a full-time basis. Education Law § 3205 (3) grants to cities of a certain size the power to require minors from 16 to 17 years of age who are not employed to attend full-time day instruction. In New York City, the Chancellor of the Board of Education has promulgated a rule making full-time attendance compulsory for unemployed minors through age 17. Thus, in New York City, children from ages 6 to 17 are required to attend school on a full-time basis.
Upon a violation of part I of article 65, the Family Court is granted subject matter jurisdiction, whether the violation is caused by the child. If the child is repeatedly absent without the knowledge of his or her parents, it may constitute truancy and generally is not a basis for a neglect finding, unless the nonattendance can be traced to the attitudes or actions of the parents. Nonattendance, in which the child is repeatedly absent from school with the parent’s knowledge and without appropriate action on his/her part, may be a basis for a neglect finding. In other words, if a child refuses to attend school, a PINS petition may be filed. If a parent interferes with a child’s efforts to attend school, a neglect petition may be the appropriate recourse. Although the statute requires every parent to send his/her school-age child to school, it specifically exempts from compliance any parent whose child is beyond his/her ability to control.
Proof that a minor child is not attending public or parochial school in the district in which the parent resides makes out a prima facie case of educational neglect. Proof of a prima facie case does not, however, create a conclusive presumption of parental culpability or risk of impairment. It simply creates a permissible inference that the finder of fact may choose to draw upon all the evidence in the record. It does not compel a finding in accordance with that inference. The Family Court is always required to weigh all the evidence in the record before making a determination regarding neglect. Indeed, the statute specifically requires proof of “habitual truancy.” Therefore, isolated instances of unexcused absences will not support a neglect finding. It is only when the number of absences reaches the extreme and continues for an extended period of time without parental action that an inference of impairment may be drawn.
Once NYCCS has established a prima facie case, the burden of going forward or the burden of explanation shifts to respondent to present proof challenging the prima facie evidence of neglect. The burden of going forward does not shift the burden of proof, which always rests with NYCCS to prove neglect by a preponderance of the evidence. In order to rebut a prima facie case, respondent may come forward with evidence that the child is attending school or receiving the required instruction in another place. Respondent may also rebut a prima facie case by establishing “a reasonable justification for the child’s absences”.
In the instant case, NYCCS presented a prima facie case by introducing the boy’s school records. The burden of going forward then shifted to respondent to rebut the prima facie case. Based on the evidence adduced, the court finds that respondent successfully rebutted the prima facie evidence by establishing that she exercised a minimum degree of care and that the child was beyond her ability to control. The court rejects the assertion of Children’s Aid Society that a prima facie case can only be rebutted by evidence that the child is attending school or receiving the required instruction elsewhere.
This decision has been made only after a painstaking consideration of the facts, the law and common sense. It should not be read as condoning the boy’s short-sighted and ill-considered decision not to attend school. Nor should it be interpreted as an endorsement of the parent’s decision to decline PINS diversion services. It is simply a determination that NYCCS has failed to prove the required elements of educational neglect and that a neglect finding against respondent will not serve any remedial purpose.
Accordingly, the petition is dismissed since respondent rebutted the prima facie evidence of neglect. In addition, the petition is dismissed since a workable dispositional order simply cannot be fashioned in this case. Accordingly, it is ordered, that the motion to dismiss the petition is granted.
If a child is being subjected to abuse and neglect, seek the assistance of Kings Order of Protection Attorney and Kings Abuse and Neglect Attorney at Stephen Bilkis and Associates in order to divest the custody of the child on the abusers.