The March 28th edition of our OnBoard publication contained an article authored by the New York State Association of School Attorneys entitled: "What should school district officials do when Child Protective Services shows up?"
This article discussed a decision which had been handed down on August 19, 2015 from the United States District Court for the Southern District of New York entitled Phillips v. County of Orange. In this case, the Court had ruled that a school district which had permitted CPS workers to conduct an in-school interview of a student suspected of being a victim of domestic child abuse could possibly be liable for violating the student's constitutional privacy interests because such interview had taken place in the absence of a court order or parental permission. The Court's decision was based, in part, upon a finding that no existing law or regulation permitted school districts to take actions that ultimately jeopardized the Fourth Amendment rights of students in such circumstances. Accordingly, the article advised school districts that in the absence of a court order or warrant, the most conservative and safest approach to take would be to refuse to permit CPS access to the child unless CPS provides the school district with a signed letter from the County Attorney's office stating that an investigation into whether there is a reasonable basis for believing that abuse and imminent danger exists has been conducted and concluded in the affirmative.
Publication of this article lead to a series of productive conversations between NYSSBA’s Office of Counsel, Officers of the New York State Association of School Attorneys along with attorneys for the State's Office of Children and Family Services and the Governor's office. These productive conversations resulted in adoption of emergency regulations, effective immediately on May 23, 2016 which explicitly set forth school district obligations to permit representatives of the child protective service to access students suspected of being victims of domestic child abuse for purposes of conducting in-school interviews. “Passage of this regulation is critical to ensure that children are properly protected and, at the same time, school districts do not risk becoming embroiled in costly civil rights litigation” said Joseph Shields, President of the New York Association of School Attorneys, who, along with Past NYSASA President, Michael Lambert were principally involved in securing passage of this regulation. “School districts have never wished to take any action which would bar representatives of the child protective service from conducting necessary interviews with children suspected of being victims of acts of child abuse, and we believe that adoption of this new regulation strikes the appropriate balance, which protects everyone’s legal interests” said NYSSBA’s Executive Director Timothy G. Kremer. “We are pleased that the Governor’s Office facilitated this important dialogue and resolution of this critical issue.”
Section 425 of the Social Services Law contains a requirement that school districts “assist” the New York State Office of Children and Family Services (OCFS) and local child protective services and this new regulation now provides the necessary definition of what is actually required in providing such assistance.
The regulation as adopted sets forth:
Existing subdivision (i) of Section 432.3 of Title 18 of the NYCRR is amended to read as follows:
(i) (1) Commencing or causing the appropriate society for the prevention of cruelty to children to commence within 24 hours an appropriate investigation or family assessment response on all reports of suspected child abuse and maltreatment in accordance with the provisions of sections 432.2(b)(3) and section 432.13 of this Part.
(2) Request and receive, as provided for in subdivision 1 of Section 425 of the Social Services Law, when applicable, from departments, boards, bureaus, or other agencies of the state, or any of its political subdivisions including school districts (as that term is defined in subdivision 2 of Section 1980 of the Education Law), and charter schools operated pursuant to Article 56 of the Education Law, or any duly authorized agency, or any other agency providing services under the local child protective services plan, such assistance and data as will enable the local child protective service to fulfill its responsibilities properly, including providing such assistance and data to members of a multi-disciplinary team established pursuant to subdivision 6 of Section 423 of the Social Services Law when such members accompany a representative of the child protective service. Such assistance and data includes, but is not limited to:
(i) access to records relevant to the investigation of suspected abuse or maltreatment; and
(ii) access to any child named as a victim in a report of suspected abuse or maltreatment or any sibling or other child residing in the same home as the named victim. Such access includes conducting an interview of such child without a court order or the consent of the parent, guardian or other person legally responsible for the child when the child protective service encounters circumstances that warrant interviewing the child apart from family or other household members or the home or household where child abuse or maltreatment allegedly occurred. The representative of the child protective service and other members of a multi-disciplinary team accompanying a representative of the child protective service may be asked to provide identification and to identify the child or children to be interviewed, but may not be asked for or required to provide any other information or documentation as a condition of having access to a child or children. Nothing contained herein shall preclude a school, school district or other program or facility operated by a department, board, bureau, or other agency of the state or any of its political subdivisions, or by a duly authorized agency or other agency providing services under the local child protective services plan from authorizing a staff member of the school or other such program or facility to observe the interview of the child, either from the same or another room, at the discretion of the school, school district or other such program or facility. Nothing contained herein shall preclude a school, school district or other such program or facility from requiring that representatives of the child protective service or other members of a multi-disciplinary team accompanying a representative of the child protective service comply with the reasonable visitor policies or procedures of the school, school district or other such program or facility, unless such policies or procedures are contrary to the requirements of this paragraph.