Opinion
No. XXXXX.
2011-09-26
In the Matter of BENJAMIN A., A Person Alleged to be a Person In Need of Supervision, Respondent.
Family Court Attorney Stephen Greene. Wallace Van C. Auser, III, Attorney for the Child.
Family Court Attorney Stephen Greene. Wallace Van C. Auser, III, Attorney for the Child.
KIMBERLY M. SEAGER, J.
On February 14, 2011, Sue Anderson, Principal of Emerson J. Dillion Middle School (hereinafter, “EJD”), filed a petition alleging that Benjamin A. is a person in need of supervision (hereinafter, “PINS”), based upon his failure to attend school in accordance with the provisions of part one of article 65 of the Education Law. A hearing was held on August 16, 2011 at which the respondent, Benjamin A. and his parents, Donald and June A., had notice and were present.
The Family Court Attorney called School Counselor Andrew Quirk and School Psychologist Jillian Lunn as witnesses. The respondent called Psychologist Tanya Gesek, PhD and Caseworker Dion Brown.
The Court received and considered two (2) exhibits offered by petitioner, namely a letter from Andrew Quirk to Donald A. dated July 15, 2011 (petitioner's exhibit # 1), and a hand drawn diagram by Dr. Gesek showing a child's sphere of influence (petitioner's exhibit # 2).
Findings of Fact
During the 2009–2010 school year, Benjamin was in 7th grade and attended EJD. That year he missed 78 school days, the majority of which were unexcused. During the 2010–2011 school year, also while at EJD, Benjamin missed 111 days out of a possible 178 school days. Benjamin was also registered to attend summer school during the summer of 2011, but did not attend.
As a result of such poor attendance, Benjamin had failing grades in math, social studies, English and science. It is undisputed that Benjamin is highly intelligent with tremendous capabilities, and that he is brighter than most students at his school. Benjamin will be socially promoted to the 9th grade as it is believed that, given his cognitive ability, high school may be beneficial, as it is a credit based program.
In an effort to help fulfill their obligation to provide a proper education to Benjamin, the school has made phone calls to Benjamin's home to urge his parents to send him to school. They have provided him with special accommodations, including a modified school schedule with an alternate lunch location, and an “anytime pass” to use when upset or anxious. These passes allow Benjamin to leave class to see Mr. Quirk or Ms. Lunn whenever necessary. Benjamin was also referred to a Farnham counselor. Although this counselor normally provides substance abuse services, which is not an issue for Benjamin, it was felt that it might give him someone to talk to.
In 7th grade Benjamin was enrolled in a social skills class, but he was taken out of it because he didn't like it. When Benjamin was in the 7th grade, school personnel went to Benjamin's home to bring him to school on 5 occasions. One time Benjamin got physical with them, although the nature of this is unclear. The school has also referred Benjamin and his family for PINS diversion services through the Oswego County Department of Social Services.
In addition to casework counseling by Dion Brown, the family participated in Focus on Families (hereinafter, “FOF”) counseling about one year ago. That service was stopped when the therapist left employment, as Donald did not want to start with a new therapist and he also felt it was not working. It is unclear whether the FOF therapist was aware that Benjamin has a diagnosis of Asperger's Syndrome.
Benjamin was also taught by a remote academic computer based program called Nova Net during the 2009–2010 school year. It was not considered to be an alternative to the 2010–2011 school year, as it was thought that simply getting Benjamin to school was the best alternative. If Benjamin attended regularly, the use Nova Net may again be a possibility.
During phone calls to Benjamin's home, school personnel have asked Benjamin's father, Donald, to put Benjamin on the school bus or drive him to school. The school feels that if they take “stuff” away from Benjamin it would motivate him. They have also encouraged Donald to remove or limit Benjamin's use of computers while at home, as these create an enabling environment that allow Benjamin to want to stay home. The school has also offered to store Benjamin's home computer. The school district feels that Donald is not making Benjamin go to school, and that he is not working with them on their plan to take away the home computers. Donald is having a difficult time following through with the school's recommendations. Despite Donald being very receptive to voluntary services, he was recently indicated for educational neglect.
The school acknowledges that they have focused their efforts to educate Benjamin by attempting to find ways to get him to school, because they believe that he can do well if he were just in school. When he attends school he is both academically and socially appropriate. However, the school also recognizes that Benjamin feels more comfortable when he is alone. Benjamin does not socialize independently with his peers.
Benjamin's attendance was better when his mother, June A., lived in the home with Donald and Benjamin. The school believes that issues at home have negatively impacted Benjamin.
Benjamin is in regular classes that range in size between 15 and 23 students. He does not have a one-on-one assistant. There is no 504 Plan or IEP. A Committee on Special Education (hereinafter, “CSE”) was convened subsequent to the filing of the PINS petition. The Committee determined that Benjamin did not qualify based upon his intelligence, speech, and occupational testing. The full report from Dr. Gesek was not available at the time of the meeting, although the school paid for the evaluation. Home tutoring was not considered because of the one physical act in 7th grade.
Dr. Gesek met with Benjamin on three occasions; once in 2009 and, just recently, in June and July of 2011. She determined that Benjamin meets the criteria for Asperger's Syndrome (hereinafter, “Asperger's”) which is considered to be a neurobiological condition and is contained within the Autism Spectrum. Benjamin has well developed language with no identified learning difficulties. He does, however, have delays and weakness in socialization and difficulty with same aged peers. While not a criteria of the Syndrome, because of anxiety it is not unusual for school to be a problem for Asperger's students. Dr. Gesek believes that traditional modes of dealing with Benjamin are not sufficient. Benjamin needs incentives to motivate him. He has a habit of doing things a certain way. When Benjamin is not challenged he is less likely to become engaged.
Dr. Gesek believes that not going to school is a problem for Benjamin. She recommends, in addition to the modified schedule and passes, that there be supports outside the school, such as providing him with a skill builder, parenting plans, rewards and positive reinforcement for good behavior, incentives, more advanced placements in school, and building in a computer component. There also needs to be supports put in place for Donald, such as an evidence-based program like Multi–Systemic Therapy (“MST”) or a Functional Family Therapy (“FFT”). While FFT is an available service through the Department of Social Services Preventive/Diversion Services, it has not yet been tried, but would be considered. Dr. Gesek also believes that those around Benjamin, his family and his school, need to push him. However, it is not enough to say to Benjamin “try harder.” This is not a problem Benjamin can correct on his own.
The school is aware that Benjamin has been diagnosed with Asperger's, and that any student with Asperger's may have social anxiety. They do not however believe that his unwillingness to attend school is a result of Asperger's, because attendance is not an issue for other Autism Spectrum students. Although the school district filed a PINS petition, they believe that it is an issue with Donald.
It is quite significant that prior to the 6th grade, Benjamin was home schooled.
Conclusions of Law
Section 712 (a) of the Family Court Act defines a person in need of supervision, in pertinent part, as a person less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law. Section 3210 of Educational Law requires regular attendance at school with absences only for those causes allowed by the general rules and practices of the school district. The quantum of proof required under Family Court Act section 744 is beyond a reasonable doubt.
Uncontroverted and credible testimony was presented at trial that Benjamin is a person under 18 years of age and that he was a student in the Phoenix Central School District during the 2009–2010 and 2010–2011 school years. It is also uncontroverted that Benjamin missed 78 school days in 2009–2010 school year, the majority of which were unexecused and that he missed 111 days out of a possible 178 school days during the 2010–2011 school year.
Benjamin also did not attend summer school during the summer of 2011 as required, however this is outside the scope of the petition as it occurred subsequent to its filing.
“Before a child may be declared as a person in need of supervision, based on the child's failure to attend school regularly, there must be proof beyond a reasonable doubt that the child willfully and intentionally failed to attend school, in violation of the state's compulsory education laws, or that such absence was impermissible or inexcusable” (19D Carmody–Wait 2d § 119A:515, citing Matter of Andrew R., 115 Misc.2d 937, 454 N.Y.S.2d 820 [Richmond County Fam Ct, 1982] [wherein the court held that “(i)n order to sustain a PINS finding on the basis of truancy, there must be a substantial and intentional failure to attend school”], also citing Ossant v. Millard, 72 Misc.2d 384, 339 N.Y.S.2d 163 [Yates County Fam Ct, 1982] [wherein the court held that “(i)t is therefore, fundamental that the respondent (defendant) absentee pupil must be found to have a conscious underlying intent (animo remanendi) to violate the clear provisions of the Compulsory Education Law before such sanctions may be invoked. In a word, the child must be deemed a truant, i.e., absent by virtue of his own will and personal intent”]; see also Simon v. Doe, 165 Misc.2d 379, 629 N.Y.S.2d 681 [Seneca County Fam Ct, 1995] [holding that “a truancy PINS case is not one of strict liability. It remains rather upon the petitioner to prove beyond a reasonable doubt that the respondent acted intentionally”] citing Andrew R., 115 Misc.2d 937, 454 N.Y.S.2d 820;Matter of Barbara M., 130 Misc.2d 20, 494 N.Y.S.2d 968;Ossant, 72 Misc.2d 384] ).
In addition to evidence showing willful and intentional behavior on the part of the respondent, Family Court Act § 732 requires that the petition allege that “the respondent requires supervision or treatment.” In the absence of proof of all allegations, including the need for supervision or treatment, the petition must be dismissed ( seeFamily Court Act § 751; see also Sobie, Prac Commentaries, Fam Ct Act § 712). Therefore, a child who is habitually truant does not satisfy the definition of a person in need of supervision unless it is proven that his truancy is willful, intentional, impermissible or inexcusable AND that he requires supervision or treatment ( see id. [emphasis added] ).
But see Matter of Kerri H., where the court found that whether or not treatment or supervision is required is to be addressed only at dispositional stage (193 Misc.2d 238, 748 N.Y.S.2d 236 [Seneca County Fam Ct, 2002], citing Family Court Act § 712[f] ). With due deference to my colleague from Seneca County, this Court cannot agree based upon the plain reading of sections 732 and 751, wherein petition must include an allegation that the child require supervision and treatment, and if all allegations in the petition are not established the petition must be dismissed. The matter could not reach disposition unless the court made findings pursuant to section 752 that the allegations of the petition have been established. Family Court Act § 746 requires that the dispositional hearing may commence only after completion of the fact-finding hearing and after the required section 752 findings are made.
In addition to consideration of the respondent's behavior, Family Court Act § 735(d)(iii) requires, in pertinent part, that “where the entity seeking to file a petition is a school district ..., the designated lead agency shall review the steps taken by the school district ... to improve the youth's attendance ... and attempt to engage the school district ... in further diversion attempts, if it appears from review that such attempts will be beneficial to the youth.” In Oswego County, the Department of Social Services, as designated lead agency, must review steps taken by the school to improve attendance and, where appropriate, engage the school district in further diversionary attempts ( seeFamily Court Act § 735[f] ). Further, a PINS petition can only be filed where the designated lead agency states that it has determined that there is no substantial likelihood that the youth and his or her family will benefit from further diversion attempts, and that the case has not been successfully diverted ( seeFamily Court Act § 735[g][ii][B] ).
.Section 735 has been consistently interpreted as establishing a non-waivable jurisdictional requirement ( see Matter of Leslie H. v. Carol M.D., 47 A.D.3d 716, 849 N.Y.S.2d 612 [2d Dept 2008] ).
Thus, in order to find that Benjamin A. is a person in need of supervision based upon his failure to regularly attend school, the Court must first find beyond a reasonable doubt that, in addition to the excessive absences, his failure to attend school was willful, intentional, impermissible or inexcusable, and also that he requires supervision or treatment and he and his family would no longer benefit from further diversion services.
Respondent contends that a finding that he is a person in need of supervision cannot be reached in light of the undisputed proof that he has Asperger's Syndrome which effects his decision making abilities. Respondent's position is that the school's frustration in getting Benjamin to school doesn't equal willfulness, as it is clear from Dr. Gesek's testimony that Benjamin cannot deal with his condition on his own. Essentially, the respondent asks the Court to find that his failure to attend school is an excusable and unintentional consequence of his delays and weakness in socialization and difficulties with same aged peers.
The Court finds merit in the respondent's position. This is not simply because Benjamin's failure to attend school is unintentional or excusable, but also because the evidence at the hearing establishes that Benjamin and his family could benefit from further diversion services and additional steps can be taken by the school district to improve Benjamin's attendance. It seems apparent to the Court that the first step would be to establish and implement an IEP.
To quote Dr. Gesek, “Asperger's is not a bad habit.” Family Court is generally intended to correct bad habits.
As Dr. Gesek testified, in addition to the modified schedule and passes, Benjamin and his family need the supports that both the school and the Department can provide, such as a skill builder, MST or FFT, parenting plans, rewards and positive reinforcement for good behavior, incentives, more advanced placements in school and a computer component.
The Court of Appeals has noted that the Legislature expressly contemplated some overlap between the Family Court and the committee on special education ( see Matter of Beau II, 95 N.Y.2d 234, 738 N.E.2d 1167, 715 N.Y.S.2d 686 [2000], citing Education Law § 4005[1] [PINS petition not barred by IDEA, wherein no change in educational placement was contemplated] ). Despite this overlap, this Court recognizes that it has no authority to order the school district to implement an IEP under IDEA.
In order to be classified as a child with a disability under IDEA, the student must not only have a specific disability as set forth in the Act, but the disability also must adversely affect the student's educational performance such that the child requires special services and programs ( see Board of Educ. of City School Dist. of City of Fulton, SRO Dec 07–042, citing Application of the Board of Educ., Appeal No. 06–120; Application of a Child Suspected of Having a Disability, Appeal No. 05–090; Application of a Child Suspected of Having a Disability, Appeal No. 01–107; Application of a Child Suspected of Having a Disability, Appeal No. 94–42; Application of a Child Suspected of Having a Disability, Appeal No. 94–36; see also 3 Americans with Disabilities: Prac & Compliance Manual § 11:6, citing A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F Supp 2d 221, 237 Ed Law Rep 324 [D Conn 2008]; Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1, 217 Ed Law Rep 60 [1st Cir2007] ). In determining whether a student is eligible under IDEA, the student must: (1) have a disability which falls within at least one of the delineated classifications under IDEA; (2) the disability must have had an adverse effect on the student's educational performance; and (3) as a result of the adverse impact on the student's education, he or she needs special education and related services ( see A.J. v. Board of Educ., E. Islip Union Free School Dist., 679 F Supp 2d 299, 254 Ed Law Rep 826 [ED N.Y.2010] ).
The IDEA can be found at 20 USCA. §§ 1400 to 1482.
Under IDEA, the term “child with a disability” means a child with a variety of impairments, including autism, who, by reason of such impairment, needs special education and related services ( see20 USCA § 1401; 34 CFR 300.8 [a][1] ). Part 300 of the Code of Federal Regulations, as authorized by IDEA, defines “autism” as a developmental disability significantly affecting verbal and nonverbal communication and social interaction that adversely affects a child's educational performance ( see34 CFR 300.8[c][1][i]; see also8 NYCRR 200.1[zz][1] ). Some characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences ( see id ). “Asperger's disorder is a developmental disability on the autism spectrum that is associated with significant misperceptions of otherwise routine elements of daily life. It is a permanent condition that is not treatable with medication” ( see Mr. I v. Maine School Admin. Dist. No. 55, 480 F.3d 1 [1st Cir2007] citing Greenland School Dist. v. Amy N., 358 F.3d 150, 162 [1st Cir2004] ).
Although Ms. Lunn testified that fear or reluctance to go to school is not directly a causality of Asperger's and that school refusal is not a criteria of Asperger's per DSM IV, New York's State Review Office (“SRO”), on at least two occasions, has determined that for the purposes of classifying a child for special education services, the New York statutory definition of Autism rather than the DSM–IV definition should be used ( see N.Y. State Educ. Dept, SRO 91–28 [Sept. 5, 1991], available at http:// www.sro.nysed.gov/decisionindex; NY State Educ. Dept, SRO 99–3 [Dec. 17, 1999], available at http://www.sro.nysed.gov/decisionindex). Additionally, Dr. Gesek testified that it is not unusual for school to be a problem for Asperger's students because of anxiety.
“Whether an impairment adversely affects educational performance must be determined on a case by case basis, depending on the unique needs of a particular child. The requirement that student's disability adversely affect' his or her educational performance in order to be eligible for special education benefits under IDEA does not require that disability's effect be severe or significant” (3 Americans with Disabilities: Prac & Compliance Manual § 11:7, citing Individuals with Disabilities Education Act, 20 USCA. §§ 1400 [d][1][A], 1401[3][A]; 34 CFR § 300.8[c][1][i]; and A.J., 679 F Supp 2d at 299).
In this case it is clear to the Court that Benjamin qualifies for an IEP. He is a student with a disability which falls within the delineated classifications under IDEA; his disability has clearly had an adverse effect on the his educational performance as the testimony established that Benjamin's failing grades were a direct result of his failure to attend; and as a result he needs special education and related services. Each autism spectrum student must be considered for his or her unique needs and for Benjamin, it is significant that he did not attend public school until sixth grade. It is therefore not surprising that he is resistant to the changes of a public school environment. In addition to a skill builder and family supports it may be necessary to tutor Benjamin at home until such time as he can comfortably attend in a public educational setting.
Asperger's as a identified disability makes it difficult for Benjamin to go to school, this failure to attend school has had an adverse effect on his grades, as a result he requires special education services. Ergo Benjamin is entitled to an IEP which has not been properly identified by the CSE.
The Phoenix Central School District generally does a great job of doing what is necessary to educate its students. They rarely look to the Court system for assistance.
Respondent's other contention is that the petition and evidence in support thereof shows that the responsibility lies with Donald A., as he is not making Benjamin attend school and he is not giving him any consequences for refusing to attend. Essentially it is Respondent's position that this matter sounds more in the nature of educational neglect.
In order to support a finding of neglect both parental misconduct and harm or potential harm to the child must be proven ( see Matter of Amoni P., 60 A.D.3d 1408, 875 N.Y.S.2d 405 [4th Dept 2009] citing Matter of Kenneth V. [appeal No. 2], 307 A.D.2d 767, 761 N.Y.S.2d 422).
Proof that the child is not attending a public or parochial school in the district where the parent resides is sufficient to make out a prima facie case of educational neglect ( see Matter of Nicole A., 305 A.D.2d 1039, 758 N.Y.S.2d 884 [4th Dept 2003] citing Matter of Christa H., 127 A.D.2d 997, 513 N.Y.S.2d 65 [4th Dept 1987]; Matter of Chad V., 265 A.D.2d 607, 695 N.Y.S.2d 764 [3d Dept 1999], lv denied94 N.Y.2d 757, 704 N.Y.S.2d 532, 725 N.E.2d 1094). However, this may be rebutted by evidence that the child is attending school or receiving the required instruction in another place or by establishing a reasonable justification for the child's absences or by evidence that the parent has exercised a minimum degree of care such as being actively engaged with school authorities in securing appropriate special education services ( see Jamol F., at 772, 878 N.Y.S.2d 581 son's excessive unexcused absences from school and failure to consistently attend alternate school or receive home schooling did not constitute educational neglect, and mother's decision not to participate in additional diversion services that she believed in good faith would not be helpful to her son did not constitute educational neglect).
A neglect petition may be the appropriate recourse where the non-attendance by the child can be traced to the attitudes or actions of the parent or where the failure to attend school is with the parent's knowledge and without appropriate parental action, or if a parent interferes with a child's efforts to attend school ( see Matter of Jamol F., 24 Misc.3d 772, 878 N.Y.S.2d 581[ Kings County Fam Ct, 2009] [citations omitted] ). The statute requires proof of a causal connection between the parental failure and the impairment or risk of impairment to the child ( see id. at 783, 878 N.Y.S.2d 581, citing Matter of Coleen P., 148 A.D.2d 782, 538 N.Y.S.2d 361 [3d Dept 1989] ). “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' “ ( id., citing Family Court Act § 1012[h]; Matter of Jennifer N., 173 A.D.2d 971, 569 N.Y.S.2d 480 [3d Dept 1991]; Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004] ).
See Matter of Jeremy “VV ” (202 A.D.2d 738, 608 N.Y.S.2d 575 [3d Dept 1994] ), wherein the Father's consistent refusal to cooperate with child's teachers and administrators in their efforts to help child succeed at school by failing to attend parent-teacher conferences regarding child's behavior, by failing to arrange recommended private tutoring, and by refusing to permit child to be placed in special education program, did not constitute educational neglect as parent was only required to comply with legal mandate that child attend educational institution, but parent was not required to adequately assist school personnel in educating child (citations omitted).
In this case, it is unclear whether Donald could be found to be neglecting his son's education, as it cannot be determined under the facts presented that Benjamin's failure to attend school is clearly attributable to any unwillingness on Donald's part. Additionally, Dr. Gesek's testimony indicates that traditional modes of dealing with Benjamin are not sufficient. Benjamin needs incentives to motivate him. He has a habit of doing things a certain way and some of that habit is a result of having been educated at home. Rather than taking away the computer and other things from Benjamin as a way to motivate him, Dr. Gesek's suggestion of rewards and positive reinforcement for good behavior should be tried.
Based upon the forgoing it is suggested that the recommendations of Dr. Gesek be included as part of an IEP or as further diversion services. This Court concurs with the respondent's attorney that some other approach short of a PINS petition should be explored before Benjamin is subjected to a Family Court proceeding. While this Court has no authority to directly review the school's procedures and the decision of the Committee on Special Education, it is not bound to accept the school's decision without question. The mandate of the Family Court is to act in the best interest of the child when exercising its role as parens patriae. In the event that this Court could find that Benjamin's actions were intentional, and thus declare him a PINS, it might inevitably doom him to placement, as without further efforts on the part of the school, the family and the community, it would only be a matter of time until Benjamin would be before this Court on a violation petition, which could then precipitate placement.
The Court realizes that home tutoring is not what is best for Benjamin in the long term.
While public school is ultimately the best environment for Benjamin to learn and be socialized, it cannot benefit him if he doesn't attend. It seems necessary to start with a home tutor and gradually add in the social components that are lacking so that in the future he may be comfortable attending public schools. A skill builder would be beneficial for this.
However, this Court finds that option preferable to entertaining a court proceeding which could ultimately result in placing him outside his home. As long as Benjamin's father is willing to cooperate with services that can help him at home, and as long is there is an academic setting in which this child can learn, even though it may not be the ideal setting, the Court's intervention is unnecessary.
Benjamin is a child with unique challenges and special abilities who is in need of services both at school and at home. With home tutoring and family counseling for himself and his parents, Benjamin may be able to re-enter a regular classroom setting in the future. That future could be a lot sooner if the school and the Department of Social Services recognized its responsibility to teach Benjamin in an environment he is comfortable with along with the recommended interventions at home.
It is the decision of this Court that the petition be dismissed for failure to establish beyond a reasonable doubt that Benjamin is a person in need of supervision. It is the opinion of this Court that it is appropriate for the school district and the Department of Social Services to first attempt to fashion, from its many resources, a reasonable and appropriate learning environment for a child before commencing judicial proceedings. The Court further finds that it would be most unjust to adjudicate Benjamin as a PINS and subject him to probable destructive placements until after the proper services, such as Multi Systemic Therapy or Functional Family Therapy, have been at least attempted to address the problem.
Even if the Court could find otherwise, a PINS label is not going to get Benjamin to school. All the services he needs to be successful are available to him through the school district and diversion services. If those services do not to work and Benjamin does not attend school, what could this Court do but removed him from his family and place him into an ill-prepared and overworked juvenile justice system to be educated.
Further, this Court places Benjamin's parents on notice that they must take steps to insure their son's well-being. The family needs supportive counseling. Their failure to cooperate with family counseling, once instituted, may yet form the basis for a neglect petition against them.