Sheila Poole

Commissioner

Office of Children and Family Services

Capital View Office Park

52 Washington Street

Rensselaer, NY 12114-2834

sheila.poole@ocfs.ny.gov

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 gfreiman@bds.org. Thanks very much for considering this request.

Sincerely,

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