The opinion of the court was delivered by: Emily M. Olshansky, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
FACTUAL BACKGROUND and PROCEDURAL BACKGROUND
1. Procedural History of the Educational Neglect Petition
On October 2, 2007, New York City Children's Services (hereinafter, "NYCCS") filed a petition against respondent mother (hereinafter, "respondent") alleging that her son Jamol'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 Jamol 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, Jamol 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, Stephanie Thompson, a caseworker, on its direct case. Ms. Thompson 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. Two days later, however, she contacted Ms. Thompson to say that she would do anything she could to help improve Jamol's school attendance. Ms. Thompson described two services that were offered by NYCCS to assist Jamol, the Teen Enhancement Program, and Rise Up and Walk. Jamol, however, never agreed to participate in either program.
Ms. Thompson provided no testimony about Jamol's school performance or his absences. Her testimony was limited to a description of her initial contacts with respondent and Jamol.
The proof with respect to educational neglect consisted solely of the records that NYCCS introduced into evidence including the ORT dated June 14, 2007 (Petitioner's Exhibit "1" in evidence), Jamol's school records from the 2006 2007 and 2007 2008 school years (Petitioner's Exhibit "2" in evidence), the ORT dated September 18, 2008 (Petitioner's Exhibit "3" in evidence), the ORT dated November 21, 2008 (Petitioner's Exhibit "4" in evidence), and Jamol's school records from the 2007 2008 school year (Petitioner's Exhibit "5" in evidence).*fn1 Jamol's school records establish numerous unexcused absences during the period prior to the filing of the petition. For the 2006 - 2007 school year, Jamol attended P.S. 582 during September 2006. An attendance sheet from P.S. 582 indicates that Jamol was absent seven days that month (with a medical excuse having been provided for two of those days) and late five times.
After that he was enrolled in P.S. 71 from October 2006 to January 2007. An attendance sheet from P.S. 71 indicates that Jamol was absent eight days in October 2006 and late once and that he was absent eight days in November 2006. There is no indication in the records that he missed any school in December or the beginning of January, although the records indicate that he was late on January 18, 2007.
Thereafter Jamol was suspended for fighting.*fn2 After his suspension, Jamol attended P.S. 252 in February 2007. An attendance sheet from P.S. 252 indicates that Jamol was absent four days in February 2007.After that, he was transferred to a "suspension school," P.S. 607 or the Sankofa Academy, from February 2007 until January 2008. An attendance sheet from the Sankofa Academy indicates that he was absent from school 59 days from February 2007 until June 2007 and 72 days from September 2007 to January 2008.
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 Medgar Evans College where she is studying behavioral science. Although Jamol's father, Augusta F., does not live with respondent and Jamol, he is actively involved in the child's life. Mr. F. attended school conferences, brought the child to school when respondent was unavailable and, after the parents decided to file a Persons in Need of Supervision (hereinafter, "PINS") petition, he attended the first meeting at the Children's Aid Society.
Respondent testified that she first learned that Jamol was skipping school in 2006, when a friend saw him playing basketball on a school day. She described the efforts that she and Jamol'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 Jamol's father repeatedly met with school officials, at times more frequently than once per week.
Respondent spoke with Jamol 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 Play Station 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.
In addition, respondent woke Jamol up every morning. She stopped sending him to school by bus. She drove him to school. When she was unavailable to drive him, Jamol's father would pick him up and take him to school. After the parents drove him to school, they left him in the care of the principal or the school security guard.
Respondent also attempted to obtain home schooling for Jamol without success. She testified about the discussions she had with various individuals from the Board of Education. She testified that home schooling was not a viable option for Jamol since it would require that she be at home when the tutor was present, which would ultimately have resulted in her losing her job.
She also testified that she attempted to have Jamol transferred to a different school after he stopped attending the Sankofa Academy. She described the substance of her discussions with individuals from the Board of Education who informed her that the transfer options were limited since Jamol was already attending a suspension school. Respondent testified that there was only one suspension school in each borough and she therefore realized that this alternative was unworkable. According to respondent, "how was I going to get him to go to school in the Bronx when I couldn't even get him to go in Brooklyn." Ultimately she enrolled him in private school, the St. George H. Murphy Academy, for the 2008 2009 academic year. Respondent testified that Jamol started school there on September 3, 2008 and that he attended until October 16, 2008. On that date, he left school grounds without permission and was terminated. After that, respondent and Jamol's father tried for several months before they were able to enroll him in a different school.
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, Jamol 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 Jamol attended the second meeting at the Children's Aid Society. They were offered individual and family counseling. Jamol refused to participate. For that reason and because of the failure of their prior efforts, respondent and Jamol's father concluded that further discussions about counseling would be fruitless. Respondent testified ...