166 Misc. 359 | N.Y. Fam. Ct. | 1938
The truant officer of Central School District No. 1, Oxford, N. Y., the petitioner in this proceeding, has filed a petition with this court in which it is alleged that Alice Richards, a child eight years of age, is a neglected child, as she is unlawfully kept out of school. The child resides with her mother, who has a divorce from a former husband and has remarried, her name now being E. Florence Klose. The family resides in the town of Smith-ville, Chenango county, and is within the central school district mentioned above.
At the hearing in the proceeding the petitioner testified that the child was not nor had she been in school during the past fall and that the mother refused to send her to school. In answer to a question by Mrs. Klose, he admitted that, at the time of the mother’s refusal, she told him she had purchased the daughter’s books “ and was anxious to have her go to school providing she could get there safely.” The mother was sworn as a witness and gave the reasons why Alice had not attended school. It appears the family lives about six and one-half miles from the school- and on a hill farm in a rather inaccessible location, especially in the fall, •winter and spring months. The school bus transporting pupils from this outlying district to and from the school at Oxford, N. Y., receives the children at the home of Herman Adams at about eight
Mrs. Klose’s only reason for not sending the daughter to school is her solicitude for the latter’s safety and health and her feeling that those would be imperiled if a child of her age attempts to travel the one and four-tenths miles during the winter months, through the cold and wet, and at times encountering zero weather, and plodding through the mud and slush of the late fall and early spring months so prevalent at those times of the year. The child had a year of kindergarten in Binghamton, and in 1936 she did not attend school, as Dr. Boname, of Oxford, issued a certificate in effect certifying that she was not strong enough to walk the distance required to take the bus and, in addition, carry on her school work. The mother testified ,that she “ has been teaching her at home the best she could,” and
From the evidence presented at the hearing it is apparent that the refusal to send the daughter to school was not prompted by any spirit of defiance or willfulness but rather from a conviction that it would not be safe or conducive to the child’s health in view of the conditions under which she would be obliged to travel from the home in order to attend school.
So much for the facts presented by the record. Is Alice Richards a neglected child? That is the sole question this court is called on to determine.
The allegation of neglect in the petition is as follows: “ That the said child is a neglected child, in that the said Alice Richards is unlawfully kept out of school, and has not attended school in violation of sections 621 and 627 of the Education Law, and subject to section 2, subdivision 4, clause c, of the Children’s Court Act.” Section 2 of the Children’s Court Act gives the meaning of the term “ neglected child ” as the same is interpreted in that act. Among the conditions classified in the section as contributing to neglect is the following: “‘Neglected child’ means a child * * * (c) who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;” Subdivision B of section 621 of the Education Law provides: “ B. In each school district of the State, the following minors shall attend upon full time day instruction: 1. Each minor from seven to sixteen years of age.” Subdivision B of section 627 defines the duties of persons in parental relation and reads in part as follows: “ Every person in parental relation to a minor included by the provisions of this article * * *. 2. Shall cause such minor to attend upon instruction as hereinbefore required.” Section 641 defines the penalties imposed for a violation of the sections referred to. Before the amendment of 1932 it read in part as follows: “ A violation of section six hundred and twenty-seven shall be a misdemeanor, punishable for the first offense by a fine not exceeding ten dollars, or ten days’ imprisonment.” It was amended in 1932 and now reads, in part: “ Except as otherwise provided a violation of this article shall be punishable for the first offense by a fine not exceeding ten dollars, or ten days’ imprisonment.” Obviously, in the enactment of the compulsory provisions of the Education Law,
The Children’s Court Act was created under the authority given in section 18 of article 6 of the Constitution of this State to protect and promote the temporal and moral well being and safeguard the welfare of children under sixteen years of age. Whether a child is a “ neglected child ” within the meaning of the act is a question of fact. The failure of a child eight years of age to be in attendance at school during a part or even the whole school year might postpone the day of graduation but not retard a healthy mental growth. Neither would it imperil the welfare of the child, especially when she is receiving home instruction. To find as a fact, on the record in this case, that Alice Richards is a “ neglected child ” would, in my opinion, require the court to make a finding contrary to and against the weight of evidence and, therefore, the proceeding is dismissed.