DCF Interviews at School

It is a pet peeve of mine that DCF investigators think they can talk to children at school and that schools let them.

It has been a major debate in several federal appeals courts, amongst attorney members of the National Association of Counsel for Children, on the American Bar Association Child / Parent Attorneys email discussion list, amongst members of the National Association of CPS Defenses Attorneys and even at the U.S. Supreme Court.

Unfortunately it remains an open question. But I lean toward the proposition that schools should not permit DCF personnel, police or other employees of outside agencies to interview children, who are not in the custody of the interviewing person, at school.

My answer to the question "is it legal?"on avvo.com, which lays out some of my reasoning, can be found here: http://www.avvo.com/legal-answers/my-child-is-being-questioned-at-school-by-dcf.

If your school committee has a policy about visitors or interviews and you know or suspect that your child might be a target for an interview, consider adapting the form letters in my previous post to your situation.

And consult with an attorney who is familiar with DCF policies and practices.

Judges and children: When the twain should (must?) meet

I discovered this interesting blog article on the Family Law group at LinkedIn.com

Family Law Blog: Judges and children – AJ v. JJ and others [2011] E...: It sounds like a definition of people you should never work with. Animals are less of a problem! Actually, I raise this as a topic beca...

An English appellate court said that a family court judge should have met with the children to explain to them why he was sending them back to Poland to be with their father who had custody, over their reportedly vigorous objection.

The blog author seems to agree with the system there, similar to ours, that parents are discouraged from bringing their children to court and that children's voices are heard through a Guardian Ad Litem (GAL). The reported decision said it was the judge's responsibility to avoid the scenario of screaming, kicking children being dragged onto a plane by explaining the process to them.

Many parents and children believe that children's voices are not adequately heard or are inaccurately reported through the GAL system and argue that children should have the opportunity to directly communicate with the decision maker, either as witnesses or parties with standing to have their positions count. Is it for the best? Are there other options?

When Schools' Zero-Tolerance Policies Make Zero Sense

High school student expelled for blowing pieces of paper at classmates through a tube pen. Read the full article from Legal Blog Watch here.

Details of Temporary Custody Hearing in Orlando paper or And Yet Something Else Not to Do to Your Child

The "Yet Something Else Not to Do to Your Child" in the article linked below is shoot him. Yes, you read that right, a father is alleged to have shot his own son.

Ocoee father shooting son: Judge says mother of teen shot can't protect her children - OrlandoSentinel.com

The horrendous circumstances depicted in the headline caught my attention. I think you knew already that parents should NOT shoot their children. That's not why I posted the article.

I have often thought that child protective services (CPS) agencies (the Department of Children and Families, DCF, formerly DSS, in Massachusetts) overreach in bringing "failure to protect" cases. I went to read the details in the article thinking I would find myself objecting with statements such as, "What more did they expect her to do? How could she have predicted that?" But the article convinced me, as the Florida DCF lawyer convinced the Orange County (FL) judge, that this was probably a reasonable failure to protect case.

That's not why I posted the article.

Two things really caught my attention:

1. The reporter seems to have been in the courtroom. She published details about the allegations and comments about what the attorneys said.

In Massachusetts, child protection cases are closed to the public. We might get a snippet in the news about the police bringing DCF into a case when they find children in a "house of horrors" or when parents are arrested. But we don't get to see inside the CPS system -- the public doesn't know how it is decided whether children are released to their parents or placed.

2. The article said that the children were upset when told they wouldn't be going home and it has comments about what the parents' attorneys said. Nothing was said though about what the children's attorney said.

In Mass children's counsel are supposed to follow their clients' expressed wishes or, if the child is too young or otherwise incompetent for reasons other than just minority, use substituted judgment to determine what the children would want if they were competent.

Hmm, on third thought, did the children need to be taken away from the mother?

SJC strikes down Lowell youth curfew

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

Posted using ShareThis

The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.

A Challenge to Mass. Special Ed Due Process system

Attorney Robert Crabtree wrote:

Over the last couple of days we learned that Mitchell Chester, Ed.D., our new Commissioner of the Department of Elementary and Secondary Education ("DESE"), chose as one of his first acts in Massachusetts to invite the federal office that oversees implementation of IDEA in the states (the Office of Special Education and Rehabilitative Services in the U.S. Department of Education) to rule that our due process system - the Bureau of Special Education Appeals - violates IDEA because the hearing officers are employees of the DESE. OSEP gave him the opinion he asked for and requested that the Department submit a plan within 90 days to set out steps to remove the BSEA from its auspices. See the attached for a copy of the memo Commissioner Chester posted yesterday.

This is an issue that was addressed early in the process in Massachusetts; a bureaucratic wall was built around the agency; and for many years we have had a very workable and very professional unit of hearing officers dealing only with special education disputes. In short, the system works, and there is no practical reason to "fix it," as advocates on both sides of these cases generally agree. What the actual motivation for the new commissioner having taken this action - and so quickly in his regime - remains to be seen, but the objective is clear - he wants the BSEA out of his agency.

What the enforcement system for students' and parents' rights under IDEA will look like after this is over is far from certain. From the perspective of most practitioners at this juncture the best result would be for the current BSEA to be reconstituted as it is but in a different location, under different auspices and with sufficient funding to continue to do its work independently and professionally. There is a long and deep base of experiential and intellectual capital in the BSEA and it would be absurd and expensive to throw that away. The prospect of having to educate fresh hearing officers in each case to the complexities of special education law and substance from the ground up looms as an economic nightmare. (And, as usual, it would be those who can least afford that incremental cost who would suffer the most.) We expect that the worst of imaginable options may be what we know some other states have lived with - namely the use of independent contractors (including some who represent school districts in their practices) to hear cases.

The Commissioner has promised a collaborative process as the DESE develops a plan for the next steps over the next three months. He has also promised a "seamless" transition plan with no disruption of the resolution of special education disputes and with the needs of all parties continuing to be met. Let's hope . . .

Bob

And here is the text of the Commissioner's Memo (also supplied by Bob Crabtree):

MEMORANDUM

To: Superintendents, Charter School Leaders and Special Education Directors
From: Mitchell D. Chester, Ed.D., Commissioner
Date: January 22, 2009
Subject: U.S. Department of Education Ruling on Bureau of Special Education Appeals

In October 2008, after becoming Commissioner and reviewing the operations of the Department of Elementary and Secondary Education, I had questions about the structure for special education hearings and mediations in Massachusetts. My questions were based on my experience and knowledge of how these procedures are conducted in other states. I wrote to the United States Department of Education (USED) and asked them to evaluate our current structure in relation to the requirements of the Individuals with Disabilities Education Act (IDEA). The Office of Special Education and Rehabilitative Services of the USED responded last week and informed me that the structure for the Bureau of Special Education Appeals (BSEA) is not consistent with the IDEA and its regulations.

The letter we received from the USED, dated January 15, 2009, states that the IDEA unambiguously requires that hearing officers and mediators not be employees of the state education agency. Currently, the 18 members of the BSEA staff are all employees of the state education agency, the Department of Elementary and Secondary Education.

To be clear, the finding challenges our current structure, but does not call into question the impartiality or integrity of any of the decisions the BSEA has made. Our system for due process hearings and mediations has been and is operating in an impartial manner. No one in this Department, outside of the BSEA staff, reviews or tries to influence decisions of individual
hearing officers or mediators in ongoing cases.

The USED has given us 90 days from the date of their letter to respond with a plan that will bring us into full compliance with the IDEA. We are determined to develop a seamless transition plan for the BSEA so that the resolution of special education matters is not disrupted and the needs of students, parents, and the special education community continue to be met.

Over the next three months we will gather information about how this work is done in other states, seek input from key constituent and stakeholder groups, consider our options, and present a plan to USED. Until a final decision is made, the BSEA will continue to operate as it has, issuing valid and impartial hearing decisions and assisting parties in resolving their disputes.

If you have any questions, please contact Associate Commissioner Jeffrey Wulfson at 781-338- 6500