Last March, changes were made to Article 10 of the Family Court Act through the state legislature, sponsored by Senator Tony Avella. The changes require schools and ACS to work with parents to resolve educational issues related to a student’s excessive absences prior to filing a petition of educational neglect. ACS also has to provide reasons why the educational issue cannot be resolved without going to court.
Previously, schools had protocols for addressing absences before calling in an educational neglect report. Attendance investigations—called a 407 investigation—require school personnel to reach out to parents when their children are frequently absent. But the new law goes further to ensure that ACS and schools address absences without neglect charges whenever possible.
To understand the new law, we spoke with staff at the NYC child welfare agency, ACS: Rachel Natelson, Division of Family Permanency Services; Ian Sangenito, Division of Family Court Legal Services; Damaris Rosario, Office of Safety First; and Sandra Davidson, Division of Child Protection.
Q. What are some reasons that students have excessive absences? How should schools determine whether those absences are an indication of abuse or neglect that needs reporting?
Rachel Natelson: We generally see certain really predictable underlying causes when it comes to absences. Our office generally learns of absences that are due to transportation needs, kids not wanting to go to school, bullying and safety concerns. These are practical issues that could be resolved with appropriate interventions.
That’s really the idea behind the new law and the tiered response protocol [explained below]: To get a sense of underlying causes, to what degree parents are in some way responsible for those absences, or to find out that parents would like to be able to send their children to school but they are facing certain barriers and need services.
In cases where it really is a matter of families receiving additional transportation support, a safety transfer, or additional academic support, that does not constitute educational neglect. There is no will on the part of the parent to keep the child out of school. It’s only if those interventions are offered, and a parent refuses to accept them, that that constitutes neglect.
Damaris Rosario: In child protection, it’s very hard to define the reasons for a case. You might enter a home for educational neglect and find other underlying issues. Some of the issues that we could be alerted to while investigating educational neglect are a child lacking resources, or the child could be kept home because the parents don’t have care for younger children, or the children don’t have clothing. It’s very important to differentiate poverty and lack of resources from neglect. A child can be kept home for a multitude of reasons. If a child has marks or bruises, that child might be kept home. The parent might want to hide those marks, and choose to keep the child home. We really want to differentiate that from a child refusing to attend school.
Sandra Davidson: Mandated reporters have to have reasonable cause to suspect neglect to make a hotline call. They’re not responsible for finding out why. However, we would like the Department of Education to understand family dynamics and if a family is coming from the shelter system or dealing with poverty. But as mandated reporters, they’re not required to do so. They’re only required to have reasonable cause. The state central registry is responsible for making the decision if the case rises to a level that requires a child protective response.
Damaris Rosario: There are regulations the Department of Education has to follow. A-750 governs abuse and neglect broadly. A-210 of the chancellor’s regulations governs the attendance standard. But the Department of Education doesn’t act alone. They initiate the call [but do not decide whether or not there will be an investigation].
Q. The “tiered-response protocol” developed by ACS and the DOE in 2016 aims to reduce unnecessary repeat calls to the SCR from schools on families that are already system-involved. Why was it developed? How does it work?
Sandra Davidson: It was created to reinforce the partnership when a child had an active case with us, whether that’s foster care, prevention, or the division of child protection. It’s to make sure we have a coordinated effort to address any concerns about a child.
It was really to address repeat reports on families that had active cases already. It did not eliminate the need for the Department of Education to make a report when they had new safety concerns. It was to address the situation of families who consistently would be under a new investigation when there were no new concerns.
A scenario might be a 15-year-old child who is not attending school. The school reports the case and CPS gets involved. A determination is made for preventive services to address the concerns for why the child is not going to school. Let’s say that in this case there is no abuse or neglect, the case has to do with bullying. That youth, regardless of child protection and prevention being involved, is not going to immediately start going to school. Before we had the tiered response protocol, the school might call in a new report, even when there were no new concerns, while we were trying to engage the family and get the kid to school. The protocol put into effect a standard way of communicating without using the State Central Registry to deal with the issue when it’s not a case of neglect or maltreatment.
This interview has been condensed and edited for clarity. Rise also sought information from the NYC Department of Education, which did not respond to our questions.
Please see Rise’s interview with The Bronx Defenders for information about what parents need to know about school reports to CPS, communicating with the school, and advocating for your child. It also includes legal representation and education advocacy resources.