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| School. Get it? |
By Elizabeth Kruska
Schools do a whole lot of things for kids. There’s learning – book learning, social learning. For some kids it’s a place to be safe. For some kids it’s where they get to eat something. Sometimes kids can access certain other helpful services as a result of being at school. Since schools sometimes take on a multitude of hats, and because different kids have different needs, attendance at school can be more than just learning long division or where to put apostrophes.
And that’s what the problem was in this particular case. Or at least, that’s what the problem was perceived to be. There are three kids, and their names all start with the letter B. SCOV calls them B.C., Bo.B. and Br.B, so I shall do the same.
The oldest child is B.C., who was in fifth grade. Bo.B. was in kindergarten, and Br.B. was in preschool a couple days a week. The two younger kids had individualized education plans, or IEPs, designed to help with speech therapy; they’d get the speech therapy at school. B.C. didn’t have an IEP, but was not meeting educational achievement levels, and so was referred to support services at school.
The problem, though, was that the kids were missing a lot of school. It got to the point that the kids missed so much school that the administration had Mom come in for a meeting. It wasn’t totally clear that Mom understood the younger kids’ IEPs. The school made a referral for a local agency to work with the family in their home.
Eventually DCF filed a CHINS petition alleging that the three kids were being neglected in terms of their education. Mom had a hearing on the matter, and the court found educational neglect.
Mom appeals, and SCOV reverses with respect to the two younger kids, but affirms with respect to the oldest child.
The Child In Need of Care and Supervision, or CHINS, allegation can come in many different flavors. There’s the abuse or abandonment CHINS, or CHINS-A, as we call it, because it’s found in (wait for it…) subsection (A) of the CHINS statute. There’s the child without proper parental care CHINS, or CHINS-B. There’s the unmanageable child CHINS, or CHINS-C. Then there’s truancy, which gets filed as a CHINS-D, although I’ve often thought truancy is sort of its own special kind of case.
These were filed as CHINS-B, which is the most common flavor of CHINS. It’s sort of like vanilla ice cream. I mean that with no disrespect to either CHINS or to vanilla ice cream, so don’t take it that way. It’s just commonly used. That’s because it’s a large umbrella of “without proper parental care” which can range from everything from not having sufficient food to not getting necessary medical attention to . . . . Well, a whole range of things that could be harmful. I often describe CHINS-B as a description of a situation where, if left unchecked, there could be harm to a child. The State doesn’t have to wait until there’s actual harm to a child to act; there can be intervention when there’s a risk of harm.
Now, of course, there’s a risk of harm in everything we do. I could fall down the stairs when I leave my desk to get a cup of coffee (don’t laugh; I’ve done that). And the same could happen with kids. CHINS isn’t about ordinary everyday risks. It’s more about an intervention to get a family on track if the situation is such that the kids are somehow going to end up harmed by whatever is going on. Suppose, in this example, a child falls down the stairs and breaks her leg, but the parents don’t take her to the doctor. That could be a CHINS situation because she’s without proper medical care. You see where I’m going.
So, back to this family. Mom was apparently the custodial parent at the time the CHINS petition was filed, and sought to have a hearing to make the state prove the allegation.
The State brought in witnesses, including people from the school, to testify about the children’s absences. They also admitted a summary of the kids’ school attendance; Mom objected to that. The court found that because the younger kids had IEPs and got services at school, and because all three kids were missing so much school this rose to the level of educational neglect.
Here’s the thing. Under CHINS-D, or truancy, the state has to prove the child habitually missed school without justification. Under CHINS-B, the state has to prove some harm as a result of being without proper education. The court can’t conclude that truancy, on its face, creates a risk of harm. Here, the state had to show that the children’s chronic absences led to their not having education necessary for their well-being.
The younger children were of an age that school attendance was not yet mandatory. Even though they had IEPs and were getting services, there wasn’t evidence that the education they weren’t receiving by not attending school rose to the level of educational neglect. And this is really important – by law, parents are able to choose whether they want to send very young kids to school. And accordingly, parents are able to choose whether they want services for those young children. If a parent chooses not to send kids under school age to school, this can’t be used to show educational neglect.
Think about it. There are lots of kids who go to preschool. There are also lots of kids whose parents decide to do something different during their very early years. The legislature has decided it will not allow neglect to be presumed for parents who make the choice not to send their kids to preschool.
The situation is a little bit different for B.C., though. B.C. was in fifth grade and had missed a lot of school. There was evidence presented that B.C. got referred for additional educational support and other services because she was falling behind. She wasn’t able to keep up with testing and curriculum. Even though services were offered, Mom didn’t follow through, which also had an impact on B.C. This was enough to sustain a CHINS finding, and SCOV affirms that.
The last piece is an evidentiary issue, which I always enjoy. Quick evidence primer for non-lawyer readers. Suppose you’ve got a document that you want the court to consider as part of your evidence. You can’t just give it to the court. (Generally, because there are a couple very narrow exceptions but let’s not get into that here.) You’ve got to have a witness testify about that document to establish its authenticity, reliability, and accuracy. Then, if the court is generally satisfied that the document is what it’s purported to be and that it’s sufficiently relevant to the matter, it can become a part of the evidence in the case.
During the hearing the State introduced attendance records from the school when the assistant principal was testifying. Mother objected arguing the records could only be introduced through the custodian of records at the school. The attendance records are a business record, and are an exception to the hearsay rule. SCOV found that the assistant principal, while not the custodian of records, was able to testify in detail about how the records are made and kept in the course of normal school business. Evidentiary issues are generally subject to an abuse of discretion review, and because the foundation for the document was satisfactory, SCOV found that the trial court acted within its discretion in admitting the attendance records.
So, this one is partly affirmed, and partly reversed and remanded.
The Child In Need of Care and Supervision, or CHINS, allegation can come in many different flavors. There’s the abuse or abandonment CHINS, or CHINS-A, as we call it, because it’s found in (wait for it…) subsection (A) of the CHINS statute. There’s the child without proper parental care CHINS, or CHINS-B. There’s the unmanageable child CHINS, or CHINS-C. Then there’s truancy, which gets filed as a CHINS-D, although I’ve often thought truancy is sort of its own special kind of case.
These were filed as CHINS-B, which is the most common flavor of CHINS. It’s sort of like vanilla ice cream. I mean that with no disrespect to either CHINS or to vanilla ice cream, so don’t take it that way. It’s just commonly used. That’s because it’s a large umbrella of “without proper parental care” which can range from everything from not having sufficient food to not getting necessary medical attention to . . . . Well, a whole range of things that could be harmful. I often describe CHINS-B as a description of a situation where, if left unchecked, there could be harm to a child. The State doesn’t have to wait until there’s actual harm to a child to act; there can be intervention when there’s a risk of harm.
Now, of course, there’s a risk of harm in everything we do. I could fall down the stairs when I leave my desk to get a cup of coffee (don’t laugh; I’ve done that). And the same could happen with kids. CHINS isn’t about ordinary everyday risks. It’s more about an intervention to get a family on track if the situation is such that the kids are somehow going to end up harmed by whatever is going on. Suppose, in this example, a child falls down the stairs and breaks her leg, but the parents don’t take her to the doctor. That could be a CHINS situation because she’s without proper medical care. You see where I’m going.
So, back to this family. Mom was apparently the custodial parent at the time the CHINS petition was filed, and sought to have a hearing to make the state prove the allegation.
The State brought in witnesses, including people from the school, to testify about the children’s absences. They also admitted a summary of the kids’ school attendance; Mom objected to that. The court found that because the younger kids had IEPs and got services at school, and because all three kids were missing so much school this rose to the level of educational neglect.
Here’s the thing. Under CHINS-D, or truancy, the state has to prove the child habitually missed school without justification. Under CHINS-B, the state has to prove some harm as a result of being without proper education. The court can’t conclude that truancy, on its face, creates a risk of harm. Here, the state had to show that the children’s chronic absences led to their not having education necessary for their well-being.
The younger children were of an age that school attendance was not yet mandatory. Even though they had IEPs and were getting services, there wasn’t evidence that the education they weren’t receiving by not attending school rose to the level of educational neglect. And this is really important – by law, parents are able to choose whether they want to send very young kids to school. And accordingly, parents are able to choose whether they want services for those young children. If a parent chooses not to send kids under school age to school, this can’t be used to show educational neglect.
Think about it. There are lots of kids who go to preschool. There are also lots of kids whose parents decide to do something different during their very early years. The legislature has decided it will not allow neglect to be presumed for parents who make the choice not to send their kids to preschool.
The situation is a little bit different for B.C., though. B.C. was in fifth grade and had missed a lot of school. There was evidence presented that B.C. got referred for additional educational support and other services because she was falling behind. She wasn’t able to keep up with testing and curriculum. Even though services were offered, Mom didn’t follow through, which also had an impact on B.C. This was enough to sustain a CHINS finding, and SCOV affirms that.
The last piece is an evidentiary issue, which I always enjoy. Quick evidence primer for non-lawyer readers. Suppose you’ve got a document that you want the court to consider as part of your evidence. You can’t just give it to the court. (Generally, because there are a couple very narrow exceptions but let’s not get into that here.) You’ve got to have a witness testify about that document to establish its authenticity, reliability, and accuracy. Then, if the court is generally satisfied that the document is what it’s purported to be and that it’s sufficiently relevant to the matter, it can become a part of the evidence in the case.
During the hearing the State introduced attendance records from the school when the assistant principal was testifying. Mother objected arguing the records could only be introduced through the custodian of records at the school. The attendance records are a business record, and are an exception to the hearsay rule. SCOV found that the assistant principal, while not the custodian of records, was able to testify in detail about how the records are made and kept in the course of normal school business. Evidentiary issues are generally subject to an abuse of discretion review, and because the foundation for the document was satisfactory, SCOV found that the trial court acted within its discretion in admitting the attendance records.
So, this one is partly affirmed, and partly reversed and remanded.
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