Opinion
01-04-2016
In the Matter of a Proceeding Under Article 7 of the Family Court Act HARLEY B., A Person Alleged to be a Person in Need of Supervision.
Kevin L. Peryer, Esq., Plattsburgh with and for Michael White, Middle School Assistant Principal, for Saranac Central School District. Cheryl Maxwell, Esq., Plattsburgh, with and for Harley B. Edward D. Meyer, Esq., Plattsburgh, with and for Norman B. and Renee B.
Kevin L. Peryer, Esq., Plattsburgh with and for Michael White, Middle School Assistant Principal, for Saranac Central School District.
Cheryl Maxwell, Esq., Plattsburgh, with and for Harley B.
Edward D. Meyer, Esq., Plattsburgh, with and for Norman B. and Renee B.
TIMOTHY J. LAWLISS, J.On October 7, 2015, the Assistant Principal of the Saranac Central School District filed a petition against Harley B. alleging that Harley B. was a person in need of supervision based upon her failure to attend school in accordance with the provisions of Part 1 of Article 65 of the Education Law during the 2012–2013 academic school year, 2013–2014 academic school year and 2014–2015 academic school year. The Court conducted a fact-finding hearing with respect to the petition on December 8, 2015.
Based upon the verified answer filed by respondent dated November 12, 2015 and the evidence submitted at the fact-finding hearing, the Court makes the following findings of fact which are substantially undisputed. Harley is a female, who at the time that the petition was filed, was fourteen years old. During the 2012–2013 academic school year, Harley failed to attend school without an excuse approximately sixty times. During the 2013–2014 academic school year, Harley failed to attend school without an excuse approximately fifteen times. During the 2014–2015 academic school year, Harley failed to attend school without an excuse over twenty times. There was no evidence offered during this hearing that Harley was in any way unable to attend school on any day she failed to attend without an excuse. Thus, the Court concludes that Harley was habitually truant and intentionally failed to attend school as required by Part 1 of Article 65 of the New York State Education Law during those three academic school years.
The Saranac Central School District took numerous steps in an effort to improve Harley's attendance prior to the filing of the instant petition. The school district repeatedly counseled Harley regarding the necessity for attendance; telephoned Harley's parents on multiple occasions; mailed correspondence and notices to Harley's parents on multiple occasions; conducted conferences at the school with Harley and her parents; made a referral to Preventive Services for Adolescents and Families (PSAF); provided home schooling for Harley; provided school counseling for Harley; referred Harley to Behavioral Health Services North (BHSN) for counseling; referred Harley to Peer Mentoring Academic Intervention Services and Homework Lab; referred Harley to the PINS Diversion Program; enrolled Harley in a " Check–In/Check–Out" program offered by the school district itself; and filed a report with the New York State Central Registry alleging educational neglect.
It is undisputed that the Saranac Central School District received notification from the Clinton County Department of Social Services dated June 23, 2015 advising the school district that adjustment attempts with respect to Harley were terminated on May 21, 2015 and granting the district permission to file a petition under Article 7 of the Family Court Act. On June 23, 2015, the school district also received a report from the Clinton County Department of Social Services detailing the efforts the Department made to divert the case from Family Court.
Notwithstanding the above, the Attorney for the Child contends that the petition must be dismissed because Petitioner failed to establish during the fact-finding hearing that Harley currently needs supervision or treatment. In support of this position, the Attorney for the Child admitted evidence (without objection) that establishes that from the start of the 2015–2016 academic school year until the date that the petition was filed (October 7, 2015), Harley attended school every day school was scheduled. In support of her position, the Attorney for the Child relies upon Family Court Act § 732(a)(iii) and Matter of Benjamin A., 33 Misc.3d 1232(A), 946 N.Y.S.2d 65 (Table), 2011 N.Y. Slip Op. 52217[U], 2011 WL 6153707 [Fam.Ct., Oswego County 2011]. The Court finds the Attorney for the Child's arguments unpersuasive for the following reasons.
Reliance upon FCA § 732(a)(iii) is misplaced. FCA § 732(a) specifies what must be alleged in a petition filed under Article 7, it does not define what must be proven during the fact-finding hearing. FCA § 712(e) defines a fact-finding hearing as "a hearing to determine whether respondent did the acts alleged to show that he violated a law or ...". The law allegedly violated in the instant case is Part 1 of Article 65 of the Education Law. See, FCA § 712(a). After reaching the conclusion that Harley failed to attend school in accordance with the Education Law, the Court's obligation with respect to fact-finding is concluded.After reaching that conclusion, the Court is obligated to schedule and conduct a dispositional hearing to determine, among other things, whether the respondent requires supervision or treatment. See, FCA § 712(f). If at the time of the dispositional hearing the petitioner fails to prove that Harley requires supervision or treatment, the Court must dismiss the petition; however, the Attorney for the Child's demand that the petition be dismissed at the conclusion of fact-finding for failure of such proof is premature.See, Matter of Kerri H., 193 Misc.2d 238, 748 N.Y.S.2d 236, 2002 N.Y. Slip Op. 22183 [Fam.Ct., Seneca County 2002].
In dictum, the Court in Benjamin A. did state that the question of the respondent's need for supervision or treatment was properly addressed at the time of the fact-finding hearing. In reaching this conclusion the Court relied upon FCA §§ 732 and 751. Matter of Benjamin A., 33 Misc.3d 1232(A), 946 N.Y.S.2d 65 (Table), 2011 N.Y. Slip Op. 52217[U], *4, n. 2, 2011 WL 6153707 [Fam.Ct., Oswego County 2011]. This Court respectfully disagrees. In this Court's opinion, FCA § 752 speaks merely of what should be done when the allegations of a petition are established to be true. Like FCA § 732, FCA § 752 does not specify the timing of when the issues presented must be addressed.
NOW, THEREFORE, upon the findings made above, it is hereby
ADJUDGED, that the above-named Respondent did not attend school in accordance with Article 65 of the Education Law; and it is further
ORDERED, that this matter is scheduled for a dispositional hearing to begin on: January 29, 2016 at 10:15 a.m.; and it is further
ORDERED, that David Marcoux, Director of Clinton County Department of Probation, shall ensure that the Clinton County Department of Probation files a pre-dispositional report in this action which fully complies with the requirements of 9 NYCRR 350.7 on or before January 22, 2016.