ACS alleged that Malika S. committed educational neglect under Family Court Act § 1012(f). After hearing the testimony at the fact-finding proceedings and reviewing the evidence the petition is dismissed.

Betthi S. [is now sixteen years old].

The child protective supervisor, Ms. Williams, and Ms. S., the respondent, testified at the [*2]fact-finding.

From approximately 1998 - 2011, Ms. S. resided outside New York State. Ms. S. claimed to have a PhD in Education Administration and Human Development.

Ms. S. stated she resided with her daughter in South Carolina between 2002-2010 Betthi took standardized tests in South Carolina from 2005-2010. After 2010 she said she moved back and forth between Tennessee and Maryland. Ms. S. was incarcerated in North Carolina, based on an identity fraud charge from New York, and from February 2011-June 2011 Betthi was in foster care in Madison County, North Carolina. Ms. S. also stated she enrolled Betthi in a summer 2011 program in Vermont. Ms. S. testified that she returned to New York in July 2011, after she waived extradition as a condition for Betthi's return to her in New York. Betthi arrived in New York at approximately the same time.

Though on probation in New York, Ms. S. was arrested, more than once in 2011, for not paying restitution, and was incarcerated from approximately December 2011 into early 2012. During that time, Betthi was living with Ms. S.' sister, in Westchester County. Despite testimony from Ms. Williams and Ms. S. the Court could not pinpoint exactly when Ms. S. was in New York in 2011, but not incarcerated, other than the December period.

Despite the fact Betthi resided with her, Ms. S.'s sister called in a November 30, 2011 ORT claiming Betthi was not enrolled in school. ACS did not introduce it into evidence.

On December 15, 2011, Betthi traveled on her own to Washington, D.C. The ORT was called-in by Kathy Ruffina, a caseworker with Washington D.C. Child and Family Services. Betthi resided with her aunt, Alice S., whose Westchester County address was listed as Betthis's residence in the ORT. She went to Washington to pick-up Betthi. According to the ORT, Ms. Ruffina did not understand how Betthi traveled to Washington on her own and that Betthi appeared developmentally delayed. She noted Betthi was [a famous person's granddaughter].

This is consistent with Ms. S.'s statements to Ms. Williams. She thought Betthi attended school while with her sister and did not understand how or why Betthi went to Washington.

Ms. Williams testified that Ms. S. showed her documents from the University of Colorado indicating Betthi was enrolled in a special program, but when she called the university, they wouldn't provide her any information because she was not Betthi's parent.

Ms. Williams discovered Ms. S. was incarcerated only because she read about it in a December 15, 2011 news report. This lead to a first video conference between them on December 19, 2011. She did not ask Ms. S. her own whereabouts when Betthi was in foster care from February 2011-June 2011.

Ms. S. mentioned the hostility among her family members that may have resulted in calls to ACS. Ms. S. claimed she had difficulty registering Betthi in private school during the school year. At a January 19, 2012 meeting with Ms. Williams she said she "needed time to figure things out." She complained that she was just released from jail and "everyone was in her face."

On February 11, 2012, Ms. Williams met Ms. S. at her probation officer's, Ms. Madera's office.

Ms. Williams checked with the Department of Education liaison, Mr. Romero, on February 22, 2012 and March 19, 2012, and obtained proof Betthi was not in an approved NYC Department of Education home schooling program. When she told this to Ms. S., she responded that she already sent a letter to Bonnie Brown, Superintendent of the home schooling program at the Department of Education stating her intent to home school her daughter. She showed the letter to Ms. Williams at Ms. Madera's office. It was in the body of an email between Ms. S. and [*3]her attorney. Ms. Wiiliams determined that Gail Baskerville was the correct person to contact at the Department of Education about home schooling and gave Ms. Madera and Ms. S. her phone number. Ms. Williams testified Ms. S. never contacted Ms. Baskerville. She also said that she believed Betthi was home-schooled, though she never saw proof.

ACS never asked for Betthi to take a standardized test to determine her grade level or knowledge base.

Ms. S. stated that from January 2012-March 2012 she took Betthi to the library and taught her math, history, science, and geography. She said she taught her vocabulary building, how to write essays, geometry and for science, taught her how to be a "green kid." While Betthi did not take regents exams, her mother reviewed previous exams with her. Ms. Williams testified that at she showed her a PSAT book and SAT book that said she used to home school.

Ms. S. testified that Betthi took courses at the University of Colorado-Boulder and high school courses at the same time. She also said she attended a program at University of South Carolina.

Betthi graduated from Pen Foster High School this past October. Betthi is now 16 years old.

Besides educational neglect, the petition alleged mental health as a basis for neglect. Ms. Williams said Betthi was diagnosed with PTSD and Ms. S. refused to medicate her. Ms. Williams stated that Ms. S. would not let her speak with Betthi alone and when she met Betthi she couldn't maintain eye contact with her, looked at her mother, and usually answered only questions that required "yes" or "no" answers. Ms. Ruffina also said she found Betthi was "developmentally delayed."

The petition also included a statement from Ms. S.'s sister to ACS that during 2005 the Surrogate's Court appointed a guardian-ad-litem for Ms. S. She also said her sister was paranoid and psychotic.

Ms. S. apparently led a nomadic life with Betthi. She's had trouble with the law, and Betthi was placed in foster care. When Betthi was supposedly staying with her aunt in Westchester County she ran away — apparently unobserved by her aunt — to Washington D.C.

Ms. Williams never visited the Westchester residence or spoke to Betthi's aunt. She never asked her where she enrolled Betthi for the 2011-1012 school year even though Betthi resided there when school started in September. Betthi's trip to Washington, D.C. didn't merit a personal visit by Ms. Williams to her aunt. Yet, Ms. Williams pursued the educational neglect claim against Ms. S. even while she was incarcerated.

Ms. S.'s sister was the source for the allegation she was paranoid and she required a guardian-ad-litem in a Westchester County Surrogate's case in 2005. Why were mere allegations by possibly hostile siblings in a petition? Ms. S. is [a famous person's daughter daughter]. Ms. Williams indicated the animosity in the family and Ms. Williams knew the source for the animosity. Though there was no direct testimony, it was intimated that Ms. S. caused difficulties settling [her father's] estate. That would explain the November call to ACS, especially in light of a sister's allegation about the Surrogate's proceeding and her sister's psychiatric condition. Nothing supported these allegations. ACS submitted no proof regarding Betthi's PTSD diagnosis. The petitioner did not prove Ms. S.'s behavior was bizarre, erratic, paranoid or psychotic or that it placed Betthi's mental health at risk.

The record indicates that Ms. S. led a "troubled" life and did her best under the circumstances. The hearing was adjourned because Ms. S.'s nephew was killed or committed [*4]suicide. Though not in the record, the Court takes judicial notice regarding a further family tragedy, involving this nephew that received heavy news coverage when it occurred. After the funeral, Ms. S. returned to court and continued to participate with counsel. She was alert and intelligent and never appeared as described in the petition.

Ms. S. may be a difficult person, but her life experience may provide more than enough justification for her to question authority — especially governmental authority. Her need for independence and individuality was evident throughout the case. Her criminal offense was only peripheral to these proceedings, and no facts other than the crime, her probation and need to pay restitution were elicited.

Family Court Act 1012(b) describes impairment of emotional health or mental or psychological or intellectual functioning with a list of factors as "failure to thrive...control of aggressive self-destructive impulses, ability to think and reason...or habitual truancy."

To find educational neglect, the Court must decide if the child's physical, mental or emotional condition is impaired or is in danger of becoming impaired. And if that condition exists, it must result from the parent's failure to exercise a "minimum" degree of care educating the child. (Matter of Hickey 124 Misc 2d 667, 689 [Family Ct, Suffolk Co, 1984])

In Hickey the petitioner proposed that the child could become disadvantaged later in life due to her failure to complete high-school. A rather tenuous connection.

The Court noted a finding of educational neglect under FCA § 1012(f)(i)(A) also required a finding the parent violated Article sixty-five of the Education Law, § 3205(i)(a) that requires children to attend school full-time from age six to sixteen.

The Court finds that Ms. S. did exercise a minimum degree of care in providing Betthi an education. ACS failed to prove educational neglect by a preponderance of the evidence.

Not once were authorizations sought regarding Betthi's schooling. Ms. Williams did not ask for test scores or proof that Betthi attended school in South Carolina from 2005-2010. Though remote in time, ACS had no trouble including facts from a Surrogate's Court case in 2005 in the petition. Since Betthi was in foster care in North Carolina from February 2011-June 2011, ACS could have sought her school records for that period. Though Ms. S. gave Ms. Williams records about the Colorado program Ms. Williams did not pursue asking for authorizations.

Those records might indicate if the events of 2011 were caused by unusual circumstances relating to Ms. S.'s move to New York, her incarceration, and Betthi's move to New York or to a pattern of educational neglect.

When released from prison, Ms. S. specifically told Ms. Williams she had trouble enrolling Betthi in private school during the school year. Ms. S. indicated her intent to home-school Betthi. She testified that when pressed by Ms. Williams she complained that from her release "everyone was in her face" and she "needed time to figure things out." Considering how Ms. Williams questioned Ms. S. during her incarceration, Ms. S.'s comments seem unremarkable.

In case after case, ACS helps respondents with all types of government red tape. They contact NYCHA for housing, they even help parents enroll children in school or transfer children if their caretaker is changed. Ms. Williams could at least have called Ms. Baskerville directly from Ms. Madera's office or offered other assistance.

Ms. Williams first spoke with Ms. Romero at the Department of Education during February 2012 and received certified records indicating Betthi was not registered for school or [*5]home schooling. ACS filed the petition just after the probation meeting and Ms. S. could not have even called Ms. Baskerville in enough time to head-off a filing.

To determine if a parent exercised a minimum degree of care the Court must evaluate parental behavior objectively. Would a reasonable prudent parent have so acted, or failed to act, under the circumstances then there existing. (Nicholson v. Scopetta 3 NY3d 357, 370 [2004]).

After hearing the testimony and reviewing the evidence the Court finds Ms. S. provided a minimum degree of care.

And, since Betthi, now age 16, graduated high-school diploma from Pen Foster High-School, it is impossible to claim Ms. S.'s actions impaired Betthi now, or even limited her future options.

ACS objected to the testimony about Betthi's graduation since it was post-petition and the Court granted its objection to exclude the diploma and high school transcript. But often in cases like Hickey (Id.) - involving a teenager in high-school- the real issue is whether the child could become disadvantaged later in life due to her failure to complete school.

This is the Court's decision and order.

Brooklyn, NY____________________________

Steven Z. Mostofsky, J.F.C.