As an New York ACS Defense Attorney for the past twenty years I have represented a number of clients in Educational Neglect matters. If you are accused of this because of a child’s excessive absence from school you will have to give a reason for these absences to avoid a finding against you.
What is Educational Neglect?
Family Court Act § 1012(f) defines a neglected child as one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent … to exercise a minimum degree of care, in supplying the child with adequate … education in accordance with the provisions of part one of article sixty-five of the education law” (Family Ct Act § 1012[f][i][A]), or “in providing the child with proper supervision or guardianship” (Family Ct Act § 1012[f][i][B]). In a neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected.
The Family Court presides over all cases involving violations of Article 65 of the Education Law. Education Law § 3205(1)(a) requires that all children between the ages of six and sixteen attend school. For children 16 to 17 years of age the Education Law has the power to require them to go to school if they are not employed. In New York City, full-time attendance is mandatory for unemployed minors through age 17.
As shown by the cases below if a child is repeatedly absent from school without the parent knowing, it may constitute truancy and not justify a neglect finding unless the attitudes or actions of the parents contributed to the truancy.
In a situation where a child is repeatedly absent from school with the knowledge of the parents and no actions were taken by the parents to remedy the situation, a finding of neglect may be found. If the child refuses to attend school the parents have a responsibility to file a PINS petition (see below) in Family Court on the child. Article 65 does not hold liable parents whose child is beyond their ability to control.
The law requires proof of habitual truancy not just unexcused absences to support a neglect finding. An inference of impairment to the child may be drawn if the absences are excessive and there is no remedial parental action on regards to these absences. The word “excessive” is important here, and only a finding of excessive absences will lead to an inference of impairment or harm to the child. Even when the child’s absences are not excused there must be proof that child’s education was harmed in some way.
The Law requires the Administration for Children’s Services (ACS) to show that the child was harmed by his or her not attending school. Even if a child is harmed or impaired by his or her not attending school, the law requires proof of some sort of parental failure to make a finding. Thus parental misconduct and harm has to be proven by ACS. Just because a child is absent from school does not necessarily mean that the parent was neglectful. Thus, since the Law is fault based, without the proof of some negligence or fault on the parent’s part, no matter how serious the harm may be to the child, a neglect finding cannot be made.
Proof that the child is not attending public or parochial school by ACS in a Family Court Article 10 proceeding for neglect forces the parent to submit proof that the minor is indeed attending school and receiving the required education elsewhere.
As stated above, the filing of a PINS petition by the parent when their child is a truant may help that parent avoid a neglect finding. Family Court Act § 712 defines a PINS as:
“a person less than eighteen years of age who does not attend school in accordance with part one of Article 65 of the education law or who is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child care or other lawful authority, or who violates sections 221.05,230.00 or 240.37 of the penal law.”
Family Court Act § 716 states that the Court may substitute a neglect petition under Article 10 of the Family Court Act for a petition to determine whether a person is in need of supervision. Matter of fact, if a Court fails to substitute a neglect petition with a PINS petition when there is evidence that the child is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child care or other lawful authority, it could be appealed as an abuse of discretion of that Court.
After extensive research and significant Court room experience (20 years) as a New York Educational Neglect attorney I have seen cases where educational neglect has been found and cases where it has not. They all have very interesting fact patterns.
Examples of Educational Neglect
Case #1
Here, the child was absent 30 days and tardy 89 days during the school year. The parents failed to take an action to remedy the situation. They failed to return 38 of the 40 phone calls made by the school attendance officer to them and they refused numerous offers for help from the school. Here a finding of educational neglect was made.
Case #2
Here a child named Bushara was absent 101 of 166 days during school year, and the child was not going to school elsewhere. Despite getting permission to home school the child the parent failed to provide documentation regarding home schooling to the Department of Education as required. The parent failed to provide proof to rebut the presumption that because of the excessive absences the child was impaired. A finding was made against the parent.
Case #3
Here a child named Renaissance had 38 unexcused absences and was late another 38 times. During this school year the child had a significant decrease in her grade point average to below passing. The parent claimed that her poor attendance was because of harassment by other students in the school or by the child being to sick or too violent to attend. The Family Court did not believe this excuse and made a finding against the parent because the parent did not present enough evidence to back up these claims. The child’s behavior at home began before the alleged harassment at school, and the parent never told the child’s mental health provider of the child’s problems nor did not communicate it to the school in writing until well after the problem developing. Furthermore despite the case worker’s recommendation for the parent to file a PINS petition, it was never done. Finally despite the parent’s contention that home schooling was given to the child, no approved plan or other documents were submitted to the Court to prove this fact, therefore the Court found that the child did not receive the required schooling.
Case #4
The Court takes a special concern concerning missed school when it comes to special needs children. In a case involving special needs children the parent argued that a finding of neglect could not be made because there was no proof of impairment to the parent’s child. The parent argued that the child, age 17, voluntarily choose not to go to school. This child was diagnosed as learning disabled. Over a three year period this student missed 37, 87 and 61 days of school. The parent claimed because the child was pregnant she could not go to school. No medical or other justification was offered by the parent for any of child’s absences from school except for the child’s pregnancy. The Court found that the parent did not submit any proof that the child was unable to go to school.
As far as the harm that occurred to the child the Court noted that the child’s learning needs required individualized instruction and use of special techniques. The child lost this because of not going to school. Furthermore, children in special education that excessively miss school lose behavior modification and reinforcements necessary for their learning. Finally, the child was enrolled in a special school program for teenage mothers and the Court held the instruction she could have had would have benefited her as a mother. A finding was made against this parent.
Cases where Educational Neglect was not proven
Case #1
A child named Khalil was a 14 year old truant and generally ungovernable. He voluntarily refused to go to school. The father had requested ACS’s help in putting the child in foster care but this didn’t pan out. The child was drug addicted but refused to go into treatment. The parents pursued a PINS petition against the child and the child was adjudicated a PINS and put on probation. In an effort to enforce the terms of the PINS resulted in a physical alteration between the child and parent. Here the Court found that despite the child’s excessive absences from school, the parent’s took action to remediate the problem and the case for neglect against them was dismissed.
Case #2
In case where a child named Jennifer had excessive absences from school the case was dismissed against the parent because the child was under a Doctor’s care and returned to school when the Doctor gave her permission to do so.
Case #3
In a case where a child named Jamol had excessive absences from school over many years the Court dismissed the case against the parent because the parent was actively involved in the child’s life by attending school conferences, bringing the child to school and filing a PINS petition against the child. When the parent learned that the child was skipping school the parent made attempts to have the child attend school everyday. The parent immediately notified the school officials of what was going on. The parent maintained ongoing contact with the school personnel to track the child’s attendance. The parent frequently met with school officials to attempt to remedy the problem. The parent repeatedly spoke with Jamol about the importance of completing his education. She removed his Play Station from his room and cut his cable television and his internet connection. She stopped giving him an allowance and took away his keys so he wouldn’t go back home during the school day. The parent woke up the child everyday for school and drove him to school. The parent attempted to obtain home schooling for the child to no success. The Court dismissed the Petition against the parent because it was not the parent’s fault the child was not attending school.
Case #4
In a case where a child missed an excessive amount of school the Court dismissed the case of educational neglect against the parent because she faced formidable obstacles, including a language barrier and the child’s violent and destructive behavior that made it nearly impossible for the child to attend school.
The moral of the story here is if your child is missing school excessively it is wise to call a New York Educational Neglect attorney like myself so you can be advised on what actions to take to avoid having ACS file an Article 10 Petition for neglect being filed against you. Please call me at 718-864-2011 for a free phone consultation.