Letter to New York Office of Children and Family Services on the Need for OCFS to Issues Guidance Concerning Educational Neglect Calls During COVID-19 Crisis
Office of Children and Family Services
Capital View Office Park
52 Washington Street
Rensselaer, NY 12114-2834
Re: Need for OCFS To Issue Guidance Concerning Educational Neglect Calls During the COVID-19 Crisis
Dear Commissioner Poole:
Our offices work with low-income parents and children across New York City in child welfare and educational matters. Many of these families have struggled with the challenges of remote learning, while also living in the communities that have been most severely affected by the novel coronavirus crisis. We write to request that, before the start of the coming school year, the Office of Children and Family Services issue formal guidance that would direct the New York State Central Register not to accept allegations of child maltreatment based solely on school absences during the COVID-19 state of emergency. Given the well-known challenges of remote learning, particularly for low-income families, school absences should not alone suffice to provide reasonable cause to justify abuse or neglect investigations under New York’s Social Services Law.
New York City has experienced widespread problems with remote learning. Of particular concern to our offices is that school staff have sometimes responded to student absences from remote learning programs by contacting the SCR. These referrals are inappropriate and harmful. They unnecessarily expose families to ACS involvement and undermine families’ trust in their children’s schools, while also diverting resources away from legitimate child protective investigations. Throughout the COVID-19 crisis, we have seen families struggle to connect their children to remote learning for a litany of reasons, including inadequate technological devices, a lack of internet access, technical issues regarding remote learning devices, a school’s failure to provide written information about how to access remote learning, the general difficulty of learning at home for students (and particularly for students with disabilities), housing instability or food insecurity, students lacking appropriate quiet space within which to engage in remote learning, essential workers struggling with childcare obligations, and families and students being prevented from engaging with online learning due to language access issues. And in some cases, a child’s parent or guardian became sick with COVID-19.
This is a matter of racial and economic justice. In New York City, Black families are many times more likely than white families to face investigations. Child welfare investigations are extremely stressful for both parents and children, even when they are unfounded. We should not be putting families through these investigations unnecessarily, and we should not be diverting resources away from the situations that need them.
OCFS guidance clarifying that failure to participate in remote learning alone does not meet the required threshold to be investigated would avoid unnecessary investigations and reinforce that school districts must make individualized efforts to resolve educational access issues. Issuing this guidance would not require statutory change. The Social Services law requires reporting only when there is “reasonable cause to suspect” child abuse or neglect, which is defined as “imminent danger” to a child’s “physical, mental or emotional condition,” and requires investigation only of calls that “could reasonably constitute a report of child abuse or maltreatment.” SSL §§ 413, 422(2)(a); FCA § 1012(f). In fact, the Legislature has explicitly required that, before a child can be considered to be educationally neglected, the school district must itself undertake proactive efforts to ameliorate the situation. FCA § 1012(f)(i)(A). And New York law already makes clear that absences alone do not suffice to justify a finding of child abuse or maltreatment. See SSL § 412, FCA § 1012(f).
OCFS need only train and demand SCR operators to do what the law already requires them to do. The SCR operator should ask whether school absences are the only reason for a call and what efforts, if any, the school has itself pursued on behalf of the family requiring assistance. If there are no other issues reported or significant efforts have not yet been made, the call should not be accepted for investigation. Instead, the school making the report should be reminded of the applicable guidance. It is particularly important that the operator assess what non-digital, individualized outreach to a family the school has made, given that so many low-income families do not have access to the digital forms of communication that schools use, or may also lack consistent cell phone access.
If OCFS has already issued this guidance, it should be released publicly. Clear and public OCFS guidance would permit a broader public education campaign to reduce unnecessary calls to the SCR. Given the unprecedented challenges during the pandemic facing low-income families, and particularly low-income families of color, we must ensure that schools – who are the ones best positioned to address remote learning issues – do the required outreach to families and problem solve rather than to sweep families unnecessarily into the child welfare system through unjustified reporting.
If you have any questions regarding this letter, or wish to speak further, we can be reached through Gabriel Freiman, Attorney-in-Charge, Education and Employment Practice, Brooklyn Defender Services by phone at 347-592-2546 or email at firstname.lastname@example.org. Thanks very much for considering this request.
Advocates for Children of New York
The Bronx Defenders
Brooklyn Defender Services
Center for Family Representation
The Legal Aid Society Legal Services
NYC Neighborhood Defender Service of Harlem
NYU Family Defense Clinic Rise
Testimony: The New York Senate Standing Committee on Judiciary & New York State Senate Standing Committee on Children & FamiliesBrooklyn Defender Services (BDS), along with the other Article 10 Family Defense Organizations in New York City testified before The New York Senate Standing Committee on Judiciary & the New York State Senate Standing Committee on Children & Families regarding New York State Family Court.Letters & TestimoniesEarly Defense for Parents Facing ACS Investigations
Times-Union: Advocates concerned as AI monitors the communications of [incarcerated people]“Since 2014, they have been sued year after year, in jurisdiction after jurisdiction, for this same problem and the same practice and they’re not doing anything to effectively end the issue,” said Elizabeth Daniel Vasquez, a counsel at Brooklyn Defender Services.In The NewsCorrectional Visits and Phone Calls
Testimony: The New York City Council Committees on Education, General Welfare and Criminal Justice - Oversight Hearing on Educational Programming in Detention Facilities.Anna Arkin-Gallagher, Supervising Attorney and Policy Counsel in the Education Practice at Brooklyn Defender Services (BDS) testified before the New York City Council Committees on Education, General Welfare and Criminal Justice during a recent Oversight Hearing on Educational Programming in Detention Facilities.Letters & TestimoniesEducation Rights
BDS partners with Simpson Thacher to assist parents impacted by the family regulation system.BDS’ Pro Bono unit held their first clinic of Fall 2023, partnering with Simpson Thacher & Bartlett LLP to assist parents impacted by the family regulation system.Pro BonoEarly Defense for Parents Facing ACS Investigations
Testimony: The New York State Assembly Standing Committee on Children & Families - The Child Welfare System and the Mandatory Reporting of Child Abuse or Maltreatment in New York StateBrooklyn Defender Services, alongside other Article 10 Family Defense Organizations in New York City: Bronx Defenders, Center for Family Representation, and Neighborhood Defender Service of Harlem, presented before The New York State Assembly Standing Committee on Children & Families regarding The Child Welfare System and the Mandatory Reporting of Child Abuse or Maltreatment in New York StateLetters & TestimoniesEarly Defense for Parents Facing ACS Investigations
Lisa Schreibersdorf, Executive Director, Brooklyn Defender Services (BDS) named to City & State's 2023 Nonprofit Power 100 List.BDS Founder & Executive Director Lisa Schreibersdorf was once again honored in City & State's prominent Nonprofit Power 100 List, which recognizes the leaders of New York’s top social services providers, legal aid organizations, foundations, and more.In The News
Testimony: The New York City Council Committee on Criminal Justice - Oversight Hearing on Department of Correction and Department of Probation’s Programming and Reentry ServicesRebecca Kinsella, Associate Director of Social Work at Brooklyn Defender Services (BDS) testified before The New York City Council Committee on Criminal Justice on the Department of Correction and Department of Probation’s Programming and Reentry ServicesLetters & TestimoniesCorrectional Visits and Phone Calls
Testimony: The New York City Council Committee on Health Oversight - Protecting New Yorkers from Heat and Air Quality EmergenciesMichael Klinger, Jail Services Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS), testified before The New York City Council Committee on Health Oversight on Protecting New Yorkers from Heat and Air Quality EmergenciesLetters & TestimoniesBail & Pre-Trial Incarceration
Ahead of State Assembly Hearing, Families, Advocates, and Mandated Reporters Call for an End to New York’s Harmful Mandatory Reporting PoliciesFamilies, survivors of domestic violence, children’s rights leaders, reproductive justice advocates, public defenders, and mandated reporters called for an end to the practice of mandatory reporting at a community rally before the New York State Assembly’s Standing Committee on Children and Families and Subcommittee on Foster Care’s Wednesday hearing on “The Child Welfare System and the Mandatory Reporting of Child Abuse or Maltreatment in New York State.”Press Releases
Testimony: The New York City Council Committee on General Welfare Oversight Hearing - Public Benefits Processing Delays at HRATopacio Nunez, Senior Paralegal in the Civil Justice Practice at Brooklyn Defender Services (BDS) testified before The New York City Council Committee on General Welfare Oversight Hearing regarding Public Benefits Processing Delays at HRALetters & TestimoniesBenefits & the Social Safety Net