January 13, 2020

YOU FILED A CRA. WHAT HAPPENS IN COURT NOW?

January 13, 2020/ E.M. Curran & Associates LLC/ Ellen Curran

A Child Requiring Assistance (CRA) claim is a court case in which the Juvenile Court is asked to help parents and/or school officials with the supervision and/or management of a child who is at least 6 but not yet 18 years old. There are five types of CRA but below are the four most commonly filed:

1. Runaway: Child 6 to 18: A child between the ages of 6 and 18 who “repeatedly runs away from the home of a parent, legal guardian or custodian having custody of the child.”

2. Stubborn: Child 6 to 18: A child between the ages of 6 and 18 who “repeatedly refuses to obey the lawful and reasonable commands of said parent or guardian resulting in said parent’s or guardian’s inability to care for and protect said child…”

3. Truant: Child 6 to 16: A child between the ages of 6 and 18 who “is not excused from attendance in accordance with the lawful and reasonable regulations of such child's school, has willfully failed to attend school for more than 8 school days in a quarter…”

4. School Offender: Child 6 to 16: “A school district may initiate an application for assistance in said court stating that said child is not excused from attendance in accordance with the lawful and reasonable regulations of such child's school, has willfully failed to attend school for more than 8 school days in a quarter or repeatedly fails to obey the lawful and reasonable regulations of the child's school.”

If after a preliminary hearing the Court decides the child requires assistance, the case will be scheduled for future court hearings. Below is an overview of the most frequently used types of hearings in a CRA case:

What happens at a Fact-Finding Hearing?

At the Fact-Finding Hearing, each party has a right to be heard and has the right to have a trial in front of a different judge who conducted the preliminary hearing. [Although this requirement is stated in the statute, this does not always happen. You could have the same judge from the initial filing to the disposition.] The applicant, whether it be a parent or a school official, who filed the application must present evidence that shows to the judge, beyond a reasonable doubt, that the child requires assistance. If the judge finds that the child requires assistance, the court will schedule a case conference and disposition hearing.

What happens at a case conference?

The case conference allows the parties and any third-party collaterals (i.e. probation officer, representative from child’s school, clinicians, Department of Children and Families (DCF) if involved with the family, etc.) to collaborate and agree on plan for the child. The parties should be cautioned to only agree to tasks that they will follow through with. If a party agrees to do a task at the case conference that they have no intention of following through with, when the court gets a report on the progress of the plan it will be reported as a failure.

What happens at disposition?

At disposition the judge will order the child: to remain at home (and may impose conditions for the child to stay at home); into the custody of a relative or other appropriate adult; or into the custody of DCF (and may also order that DCF place the child out of the home).

Once the court places the child in DCF custody, DCF decides where to place the child. The disposition is first reviewed by the court after 120 days. At that review (or between reviews), the case can be dismissed, the court can change the custody order or conditions, or the case can continue with the same orders in place. There are three more reviews that happen after the first every 90 days.

Have questions or concerns about your child? Contact us to discuss further:

E.M. Curran & Associates LLC

10 Tower Office Park
Suite 406
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549
ellen@emcurranlegal.com

February 19, 2019

SUSPENSIONS IN MASSACHUSETTS SCHOOLS

February 19, 2019/ E.M. Curran & Associates LLC/ Ellen Curran

What rights do you have if your student is being disciplined?

The school must contact you in your preferred language.
The school must offer to meet with you to discuss the situation and the consequence.
The school must allow your student to make up missed work if they are suspended.
The school is supposed to use discretion in deciding a consequence/resolution of the issue.

In-school suspension (removal from classroom) no more than 10 school days each year.

The school must notify you – in you in English and your preferred language – that it is suspending your student. The school must offer to meet with you on the day of the in-school suspension.
Before suspending, the school must tell your student the reason it thinks they broke the rules. Your student has the right to tell their side of the story. IF the school decides your student broke the rules and suspends them, the school must offer to meet with you to discuss your student’s academics, behavior and the best ways to get them back on track.
There is no right to appeal this suspension
Your student must be allowed to take any quizzes/tests missed during the suspension.

Short-term suspension (removal from the school) no more than 10 school days each year.

BEFORE the school can suspend your student, the school must notify you – in English and your preferred language – and invite you to a hearing.
At the hearing, the school must tell you why it plans to suspend your student and for how long. Your student has the right to tell their side of the story. If the school decides that your student broke the rules, you can suggest consequences other than suspension that better address the situation. For example, if your student allegedly vandalized a classroom; you could suggest that the student spend twenty-hours cleaning the school and/or school grounds.
There is no right to appeal this suspension
Your student must be allowed to take any quizzes/tests missed during the suspension.

IF your student was suspended once or several times over a school year for more than 10 total days, it counts as a long-term suspension and you have more rights see below.

Long-term suspension (IN or OUT of school) more than 10 school days per year, served either consecutively or cumulatively.

BEFORE the school can suspend your student, the school must notify you – in English and your preferred language – and invite you to a hearing.
At the hearing, the school must tell you why it plans to suspend your student and for how long. Your student has the right to tell their side of the story. You have the right to bring an attorney or an advocate to the hearing. You have the right to present your own evidence, question the school’s witnesses and bring your own witnesses.
If the school decides that your student broke the rules, the school must show that it tired an alternative to suspension before it can suspend. For example: mediation, conflict resolution, positive interventions/supports and restorative justice.
If you disagree with the school’s decision, you can appeal it. The school must put in writing their reasons for suspending your student and explain how you appeal. You have five (5) days to appeal unless the school agrees, in writing, to a longer time period.
Your student has the right to be educated during the suspension. If your student is being suspend for more than 10 days in a row, the school must provide other academic options to your student.

Have questions or concerns about your child's education? Contact us to discuss further:

E.M. Curran & Associates LLC

10 Tower Office Park
Suite 406
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549
ellen@emcurranlegal.com

January 14, 2019

School Resource Officers ("SROs") in Massachusetts Schools

January 14, 2019/ E.M. Curran & Associates LLC/ Ellen Curran

A recent decision by the U.S. Department of Education (Department), Office for Civil Rights (OCR) , warns schools of the risks of using School Resource Officers (SROs) in educational situations. In this case Lynn used an SRO as a “support person” in dealing with a student whose behavior had quickly declined.

Brief summary of the facts in the complaint:

During the 2014-2015 school year, the Student who was at the center of the complaint was on an Individualized Education Program (IEP) for an emotional disability. The Student was known to perseverate on problems and had focus issues. The IEP indicated she needed guidance to learn how to successfully regulate her emotions and would need to meet with the school adjustment counselor.

The first half of the school year, until about January, passed without incident or concerns. Beginning in January 2015 and more noticeably in February, the Student began to decompensate. She struggled with her academics; she had an increase in absences, tardies and dismissals; and was suspended at least 12 times during March and April for violations such as refusal to go to class, disruptive and disrespectful behavior, swearing, and wandering the halls. By comparison, the Student had no suspensions at the start of the school year.

At a Team meeting held at the start of May, it was determined that the behaviors resulting in the Student’s suspensions were related to her disability. It was also decided that the District should conduct a FBA and a 45-day assessment, but the team could not agree on a place for the assessment. The District wanted to place the Student at their in-district school for “educationally at risk Students who have not been successful in a traditional high school setting.” The Student and her representatives requested an out-of-district assessment and placement. Since an agreement could not be reached, the team agreed to reconvene a week later to determine an appropriate placement.

Prior to the second meeting, the Student once again had difficulty attending class. The Student went to the vice principal’s office and the SRO was called to assist. The social worker and vice principal explained to OCR that the SRO was often called as an additional support member for the Student to talk to. The SRO’s report from the incident stated that the Student’s refusal to attend class had been an ongoing issue in the school year, indicating he had some awareness of the Student’s challenges. The SRO brought the Student down to his office, where the school social worker stopped by. According to records and interviews, the Student became loud and squirted hand sanitizer on the social worker. The social worker left to go get the principal. The principal asked the Student to clean up the hand sanitizer and when he handed her paper towels, the Student smacked his hand away. The SRO then arrested the Student and removed her from the building. Following this incident, the Student did not return to the school.

So what is the role of the SRO in the District?

To better understand the role of SROs in the District, OCR requested any policies and documentation related to SRO involvement in the school. In response, the District provided OCR with a copy of a Memorandum of Understanding (MOU) between the District, the Lynn Police Department, and the Essex County District Attorney’s Office to “coordinate their response to violent, delinquent or criminal acts by Students, including weapons reporting and alcohol and other drug use, that occur on school premises, school buses, or at school-related events.” The MOU does not address the presence of SROs in the District. The MOU did not address nor did the District have any other internal policies related to District staff engaging an SRO with routine discipline matters. The District also stated that it did not maintain any records related to SRO involvement with Students in the school.

The Student’s informal supports included check-ins with the SRO, whom District witnesses explained was “often” called upon as a “support member” for the Student. The District continued to involve the SRO to provide support services to the Student after concluding that the behavioral issues (including combative behavior) were a manifestation of the Student’s disability – and prior to conducting further evaluation or changing the Student’s services to address her needs. While the SRO was a support person for the Student, the District should realize that involving an SRO in non-criminal matters comes with an added risk to the Student because the SRO’s primary responsibility is law enforcement and not ensuring a Student with a disability is provided with a FAPE. Here, the SRO arrested the Student for behavior that was similar to the behavior that only days before was found to be a manifestation of the Student’s disability – but which remained unaddressed by the District at this time. While a Student with a disability can be referred to the police for criminal behavior, it appears everyone noted that the Student was struggling and nothing had been done yet to assess how to address her needs when she was arrested. The District also lacked any policies on the involvement of SROs with Students with disabilities, and in this case, it does not appear that the SRO was made aware of the team’s manifestation determination.

Conclusion:

“Without clear policies, procedures, and record keeping with regard to SRO involvement with Students, the District cannot ensure that its use of SROs does not discriminate against Students with disabilities by, e.g., resulting in further exclusion for disability-related behavior.” Although this does not create clear guidelines that should be implemented in Districts across the Commonwealth, it does clearly put districts on notice of the risk of involving SROs in school matters that do not include criminal behavior.

To helpful further clarify the role of SROs, the 2018 Criminal Justice Reform Act amends Chapter 69 of the Massachusetts General Laws, and has implications in our schools. The Act requires that schools enter into written agreements with local police departments regarding the role of the School Resource Officer, and that the agreement “shall state that SROs shall not serve as school disciplinarians, as enforcers of school regulations or in place of licensed school psychologists, psychiatrists or counselors and that SROs shall not use police powers to address traditional school discipline issues, including non-violent disruptive behavior.”

This is an area that will need to be monitored across the Commonwealth.

Have questions or concerns about your child's education? Contact us to discuss further:

E.M. Curran & Associates LLC

10 Tower Office Park
Suite 406
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549
ellen@emcurranlegal.com

October 01, 2018

IS YOUR CHILD FACING CONSEQUENCES FOR THEIR BEHAVIOR AT SCHOOL?

October 01, 2018/ E.M. Curran & Associates LLC/ Ellen Curran

What rules do the school's need to follow?

The Massachusetts Statute that applies depends on what the student did:

If the student brought drugs or weapons to school and/or assaults a member of the school staff Rule 37H applies.
If the student is charged with a Felony and “principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school" then Rule 37H 1/2 applies.
If the student's behavior does not fall into either of the above categories then their behavior will more likely than not be classified as a "violation of the student handbook" which would mean that Rule 37H 3/4 would apply.

Suspensions and Expulsions

There is a lot of if X then Y should happen in this area. You should seek individualized advice based on your specific student's behavior as soon as possible. Here are some general points to be aware of...

All students excluded for any length of time must be given the opportunity to make up all missed work. This includes projects, quizzes, tests, assignments etc.
Your student is entitled to hearing before they are suspended.
If your student is to be excluded for more than 10 school days, they are entitled to some form of educational service. This could be an alternative placement (see below), tutoring and in some districts online learning.
A recent decision from the Department of Elementary and Secondary Education, Problem Resolution System (PRS) has reiterated the requirement that a suspended or expelled student must be provided with a minimum of two options for receipt of educational services (In re: Intake 1561).
If the school calls you and ask you to pick up your child due to the child's behavior, ask if the child is being suspended out. If they say NO but you need to pick the child up - then they are technically suspending the child as he's not being allowed to remain in school. Whether or not you go and pick up your child is a judgment call only you can make. But this call should be documented and if it happens enough you should ask for some changes (BIP, FBA, IEP Meeting are a few suggestions).

Interim Alternative Educational Setting

A student may be unilaterally placed in an 'alternative' educational setting for up to 45 school days for the following behaviors: bringing weapons to school, bringing drugs to school and/or causing bodily harm or injury to a person while at school or a school sponsored event. These placements can be made without the consent of the parent but at the end of the 45 school days a Team meeting will be held to discuss what options are available to the student.

This link will bring you to a chart that highlights the Massachusetts Student Discipline Statutes and Regulations on the state's Education Department website.

If your student is a student with a disability, they receive more protections in discipline matters.

According to the IDEA, a student with a disability is a child who receives special education services as part of an IEP. A student also may be considered to have a disability even if the school has not tested or identified the child as such. If the school "knew or should have known" of the child's disability, the student may still be protected by special education law. (We will be sharing post that focuses on the rights of student's with disabilities and discipline in a few weeks.)

Have questions or concerns about your child's education? Contact us to discuss further:

E.M. Curran & Associates LLC

10 Tower Office Park
Suite 406
Woburn, MA 01801
Phone: 781-933-1542
Fax: 781-933-1549
ellen@emcurranlegal.com

@emcurranlegal

September 18, 2017

Sign up for a Special Education Workshop

September 18, 2017/ E.M. Curran & Associates LLC/ Ellen Curran

The best thing a parent/guardian of a special needs child can do is educate themselves so that they know what their child's rights are as related to Education matters. Attend a free workshop offered by our experienced staff.