June 30, 2016 Emergency Regulations Regarding CPS Student Interviews at School
KEEPING YOU INFORMED…
The New York State Office of Children and Family Services (“OCFS”) recently adopted regulations, on an emergency basis, making it clear that, in appropriate circumstances, children who are alleged to have been abused or maltreated can be interviewed by Child Protective Services (“CPS”) workers at school without parental permission or a court order. The regulations amending 18 NYCRR § 432.3 became effective on May 23, 2016.
The regulations became necessary after an order issued by the United States District Court for the Southern District of New York on August 19, 2015 in the case of Phillips, et al. v. County of Orange, et al. Phillips held that the county had engaged in an unconstitutional seizure of a child when CPS workers questioned the child in a public school without parental consent. In response, some school districts began denying access or creating obstructions to CPS in the school setting unless the school districts had received parental consent.
OCFS asserts that the confusion caused by the Phillips case is creating a danger to the health, safety and welfare of children. The emergency regulations seek to clarify the confusion and provide as follows:
(1) A school district[1] must provide CPS with “access to records relevant to the investigation of suspected abuse or maltreatment.”
(2) A school district must provide CPS with “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.”
(3) “The representative of the child protective service and other members of a multi-disciplinary team accompanying [the CPS representative] 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.”
(4) A school district may authorize a school staff member to observe the interview of the child, either from the same room or another room, at the discretion of the school district. CPS does not have the right to keep a school staff member from observing the interview.
(5) A school district may require that CPS representatives, and members of the multi-disciplinary team accompanying CPS representatives, comply with the school district’s reasonable visitor policies or procedures, unless they are contrary to the school district’s obligations set forth above.
If you have any questions about these regulations or questions about your school’s policies or procedures regarding CPS, please contact one of our attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2016
[1] For the purpose of this memo, the term “school district” refers to any common, union free, central, central high or city school district, or board of cooperative educational services, or charter school operating pursuant to Article 56 of the Education Law.