On October 2, 2007, 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 son missed 44 days of school during the 2006-2007 school year and 18 days during the 2007-2008 school year.
On the day the petition was filed, the son was paroled to respondent under NYCCS supervision on the condition that she ensure that he attend school daily absent a medical excuse. Issue was joined on October 19, 2007.
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. Respondent attended that conference and initially rejected NYCCS’s offer of services since she did not believe that they would be effective.
The caseworker provided no testimony about the child’s school performance or his absences. Her testimony was limited to a description of her initial contacts with respondent.
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.” In addition, she attends a school where she is studying behavioral science. Although her father does not live with respondent and the child, he is actively involved in the child’s life.
Respondent testified that she first learned that the child was skipping school in 2006, when a friend saw him playing basketball on a school day. She described the efforts that she and the 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.
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.
On April 10, 2007, the child and his father attended the first meeting at the Children’s Aid Society. They were told about the PINS diversion process and were offered mediation and counseling.
On April 26, 2007, respondent and the child attended the second meeting at the Children’s Aid Society. They were offered individual and family counseling. The child refused to participate. For that reason and because of the failure of their prior efforts, respondent and the child’s father concluded that further discussions about counseling would be fruitless. Respondent testified that despite the child’s attendance problems, he was promoted in June of 2007 and in June of 2008.
On December 9, 2008, a delinquency case was filed against the child alleging that he committed acts which, if committed by an adult, would constitute criminal mischief in the fourth degree. According to the petition, on October 18, 2008, the child and another boy approached a store at Brooklyn and the owner closed the front door. One of the boys then kicked the front glass door causing it to shatter.
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.
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.
After careful consideration of counsel’s oral arguments, current case and statutory law, and all of the evidence and other papers submitted, the court finds that respondent has rebutted NYCCS’s prima facie case.
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 (Chancellor’s Regulation A-101 [I] [B]). Thus, in New York City, children from ages 6 to 17 are required to attend school on a full-time basis.
The Family Court Act defines an educationally neglected child as a child less than 18 years of age, whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, as a result of the failure of the parent to exercise a minimum degree of care in supplying the child with an adequate education in accordance with the provisions of part I of article 65 of the Education Law.
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.
The statute also requires proof of a causal connection between the parental failure and the impairment or risk of impairment. In fact, the harm or risk of harm to the child must be “clearly attributable to the unwillingness or inability of the [parent] to exercise a minimum degree of care”
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.
The statute defines child neglect as harm or a risk of harm to a child that is clearly attributable to a respondent’s failure to exercise a minimum degree of care. The statute is fault-based. Accordingly, a prima facie case can always be rebutted by evidence that respondent exercised a reasonable degree of care and that the harm or risk of harm is not clearly attributable to any acts or omissions on her part. There is no educational neglect exception to this general rule and if the Legislature had intended to create such an exception, it would have done so explicitly.
In this regard, respondent’s efforts included attempting to correct her son’s behavior by talking to him and setting an example. In addition, she maintained ongoing contact with school officials and met with them repeatedly.
In the instant case, the alleged risk of impairment is to the child’s emotional or mental condition. Because the source of such risk may be uncertain and because of the Legislature’s determination that it is unjust to fault parents too readily, such risk must be “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care”. No such showing has been made here. Indeed, here, there is no showing that respondent has failed to exercise reasonable care.
Imposing liability without fault has no precedent under the Family Court Act or relevant case law. The purpose of article 10 is “remedial, not punitive” in nature. Its goal is to protect the physical, mental and emotional well-being of the child, not punish the parent.
In the instant case, the entry of a finding of neglect against respondent will serve no remedial purpose. Since the commencement of this proceeding, the court has entered numerous orders against respondent directing that she ensure that the child attend school on a daily basis absent a medical excuse. Although she has repeatedly attempted to comply with those orders, her efforts have been unsuccessful. Additional orders directed against respondent will be equally ineffective since, in the view of this court, respondent is demonstrably unable to control her son’s actions. There is no suggestion that there are other children in the home or that respondent requires services for any other reason. Although NYCCS and the court have been involved with the family for 17 months, the child’s attendance has not improved. Where, as here, the processes of the Family Court cannot help in achieving the remedial purpose of the statute, court intervention becomes unnecessary, perhaps counterproductive and even punitive.
Finally, the court rejects the assertion that respondent’s failure to participate in additional sessions at the Children’s Aid Society supports a finding of neglect. Respondent was under no obligation to participate in services which she and the child’s father, in good faith, believed would not be helpful to their son. Unless that decision constituted a failure to exercise a minimum degree of care which resulted in the child’s physical, mental or emotional condition being impaired or being placed in imminent danger of becoming impaired, it does not support a finding of neglect.
In this regard, it is significant that NYCCS did not plead that respondent’s actions constituted a failure to exercise a minimum degree of care. Further, although they have had 17 months to do so, NYCCS never sought to amend the petition to include that allegation. Nor did NYCCS prove that respondent’s actions constituted a failure to exercise a reasonable degree of care. They were never told that failure to comply would result in the filing of a report of suspected child maltreatment—let alone a child protective proceeding. The parents apparently believed that they had the authority to reject recommendations for services that they believed would not be helpful to their family. They were not required to do otherwise.
By the time the parents concluded that further discussions about therapy and mediation would be futile, the child had already refused to participate. He had already been involved in a number of fights in school. He had already been suspended from school for fighting. He had already refused to attend the suspension school. Efforts to enroll him in a different suspension school or obtain home schooling had been unsuccessful. Efforts to modify his behavior by speaking with him, denying him privileges and delivering him directly to school authorities had been ineffective.
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 child’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.
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