Bill S4301-2011

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

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.

Details

Actions

  • Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
  • Jun 24, 2011: COMMITTED TO RULES
  • Jun 6, 2011: ADVANCED TO THIRD READING
  • Jun 2, 2011: 2ND REPORT CAL.
  • Jun 1, 2011: 1ST REPORT CAL.924
  • Mar 28, 2011: REFERRED TO CHILDREN AND FAMILIES

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Children and Families - Jun 1, 2011
Ayes (2): Savino, Montgomery
Ayes W/R (3): Johnson, Young, Duane
Nays (1): Saland

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 4301 2011-2012 Regular Sessions IN SENATE 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:
(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 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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