State Office of Children and Family Services Issues Emergency Regulations to Clarify Amendment Relating to School Cooperation with CPS

Wednesday, June 8, 2016

Following the issuance of an oral order by the U.S. District Court for the Southern District of New York on August 19, 2015 pertaining to Phillips et al. v. County of Orange, et al., holding that the county engaged in the unconstitutional seizure of a child when the child was questioned in a public school without parent consent, significant confusion and anxiety surfaced in both school districts and Child Protective Services (CPS) agencies. These concerns arose despite the fact that the order was not part of a published court decision, held no precedential value and was in conflict with existing case law. In response to that order, some districts began to deny access to CPS staff or required them to take additional actions prior to allowing access to children in school without parental consent.

On May 23, 2016, the New York State Office of Children and Family Services (OCFS) adopted emergency regulations amending existing 18 NYCRR 432.2 to explicitly spell out school district obligations to permit representatives of the child protective service to access students suspected of being victims of domestic child abuse in order to conduct in-school interviews. The state Social Services Law contains a requirement that school districts “assist” the state OCFS and local child protective services. The regulation requires schools to give CPS access to “any child named as victim in a report of suspected abuse or maltreatment” as well as “any sibling or other child residing in the same home as the named victim.” The regulations further permit school staff to observe any interviews conducted by CPS on school grounds.

The emergency justification filed by OCFS states that “the position of OCFS and SED was and remains that children who are alleged to have been abused or maltreated can be interviewed by CPS at school without parental permission or a court order in appropriate circumstances”, especially in a situation where it is a parent who is alleged to have abused or maltreated a child and there is concern over the immediate health or safety of the child.

Further information regarding the OCFS’s issuance of emergency regulations can be found at: http://ocfs.ny.gov/main/legal/Regulatory/er/

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