PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ORDER & DECISION DECISION This order to show cause (“OTSC”) was filed against the Respondent mother, Ms. Y, by the Administration for Children’s Services (“ACS”), seeking either a violation of the adjournment in contemplation (“ACD”) order or an order extending the ACD until the end of the school year. The Respondent mother and Attorney for the Child (“AFC”) each filed opposition papers. All counsel and parties consented to the Court ruling on the papers. For the reasons below, ACS’s motion is denied. The only term and condition of the Respondent mother’s three-month ACD order dated December 16, 2020 that ACS alleges she failed to cooperate with is to “make best efforts to ensure her children attend school on time and regularly and attend any school conferences or meetings.” This condition did not relate to any allegation in the petition, which generally alleged that Ms. Y left the children unattended and faced some mental health challenges, and the mother complied with all of those related conditions. Petitioner’s motion did not include any affidavit of the caseworker but simply attached the court report dated 3/15/21 as evidence of the violation in that it notes the number of absences each child had to date but only minimally mentions the efforts the mother was making to improve their attendance, does not discuss how those efforts were inadequate, or how ACS was trying to assist her in improving the girls’ attendance except for suggesting Dior obtain a tutor. Respondent mother attached 12 pages of ACS case records to her written opposition to the motion along with her affidavit. The AFC also submitted opposition to the motion arguing that Ms. Y more than substantially complied with the conditions of the ACD and including a case record notation from March that “the family is considered low risk at this time.” See AFC Ex. A, attached to Affirmation in Opposition dated 3/31/21. First, the ACD has already been extended one month due to its tolling as of the filing of the motion; since the mother had been offered an ACD originally for 6 months prior to the pandemic occurring, she would have likely completed it long ago had the courthouse not closed down in March 2020 due to COVID. Second, Family Court Act §1039(e) states that a court MAY restore the case to the calendar if it finds a “substantial” failure to comply with the conditions of the ACD. Here, Petitioner did not provide sufficient basis that “a substantial failure” occurred. Given that the ACD order required Ms. Y to use her “best efforts” to ensure her four children, two of whom are teenagers, attend school regularly, the Court concludes that the children’s imperfect attendance in and of itself does not establish that Ms. Y did not, in fact, use her best efforts to facilitate and encourage them to attend. Thus, their imperfect attendance does not constitute a failure of this condition, much less a “substantial” one. Additionally, the affidavit and case records submitted by the Respondent mother are replete with the CONSIDERABLE efforts Ms. Y was making to ensure her children could participate effectively in remote schooling. These included: (1) obtaining the four different devices from each of the children’s four school, (2) using a family member’s Wi-Fi because of the poor internet connection on the devices and ultimately buying a new internet router on her own (as ACS provided no financial assistance for doing so, (3) requesting and picking up new devices from each school as each device eventually broke over the course of the year-long pandemic, (4) buying a new laptop for Damaria because the new school device was taking too long to become available, (5) calling and e-mailing each school on a regular basis about these various challenges, often without response, as well as replying to school inquiries, (6) asking for assistance in obtaining a reading tutoring for Damaria from both ACS and the school and securing the assistance of a family friend when no tutor was provided, and (7) waking the children up for school each and every morning, helping them log on, and remaining available and engaged to assist the children with their school work and help maintain their focus (assuming the device and internet were functioning properly). In fact, on February 22, 2021, two weeks before this motion was filed, the preventive services social worker Angela Hyland noted in the case records after making a home visit that “Ms. Y appears to be doing her best to continue to manage supporting each of the girls with their schoolwork.” Moreover, even if this was viewed as a “failure” of this one condition, the Court does NOT find it to be “substantial” given that this was only one of seven conditions, not related to the reason for filing, and there are absolutely no child safety concerns generally. Finally, as noted by both Respondent and the AFC, but noticeably absent from ACS’s papers, the challenges Ms. Y faced ensuring her children’s school attendance were during the unprecedented COVID-19 pandemic, where NYC was engaged in wholesale remote schooling for the first time in history, and the considerable difficulties faced by the Department of Education in creating this system are well known and documented in the media. See articles cited by Respondent in her Affirmation in Opposition dated 3/31/21, fns 1, 3, & 4. This remote education system forced parents to take on virtual home-schooling which meant managing the technological aspects of the devices and the internet as well as the practical and behavioral challenges of, in Ms. Y’s case, having four separate classrooms from four different schools taking place in her home, while trying to support her children both technologically and academically. It is for this reason that DOE states that “[b]efore calling in a report to the SCR, school staff must make every effort to confirm that the lack of access to technology is not the primary reason for a child’s failure to participate in remote learning,” and OCFS has stated “as it relates to excessive absences, a call to the SCR is an option of last resort.” See Child Abuse and Maltreatment Prevention and Intervention During Remote Learning and at the Regional Enrichment Centers, available at, https://www1.nyc.gov/assets/acs/pdf/covid19/maltreatmentprevention.pdf; Navigating K-12 Educational Challenges During the COVID-19 Pandemic: New York State Office of Children and Family Services and the NYS Education Department Joint Guidance for Educators and Child Welfare Workers, available at, http://www.nysed.gov/common/nysed/files/programs/coronavirus/navigating-k-12-educationalchallenges-covid-19-joint-guidance.pdf, cited by Respondent in her Affirmation in Opposition dated 3/31/21 at para 38-39. This is because assistance can be offered and provided without court ordered supervision; to that end, OCFS has issued suggestions to ACS entitled “strategies and resources to assist and support students and families” in remote learning. Id. It is also notable that Ms. Y was residing with the father of two of the children, and while he is a non-respondent, he also had an obligation to insure the children’s school attendance. However, the ACS court report and case records are silent on any efforts ACS made to hold the father responsible as well and engage the father’s assistance. The permissive language of the statute is a recognition of the Family Court’s ability to make an assessment as to whether ongoing supervision is necessary in the best interests of the children and family and on the entire record before it. In this case, the Court finds that it is not in the best of the interest of the children to order ongoing supervision and, in fact, is counterproductive to keep this family under the strain of court and ACS oversight as ACS has provided no meaningful assistance to Ms. Y beyond what she is already doing herself to manage remote schooling. In fact, part of the ACD order was that “ACS is to assist Ms. Y with obtaining functional devices for the children’s remote learning,” and yet despite the numerous issues documented in the case records and the mother’s affidavit, ACS only assisted with following up on the replacement of the teen Dior’s device in February 2021. Even if the Court were to restore the matter fully, there is no current need for court intervention in this family. The court’s intervention has served its purpose and the matter would, alternatively, be dismissed pursuant to Family Court Act §1051(c) based on the lengthy record before this Court which demonstrate a remediation of the issues which existed at the time of filing and the lack of any remaining child safety concerns. Dated: April 21, 2021
