NATIONAL HOME EDUCATION LEGAL DEFENSE

(NHELD, LLC)

  www.nheld.com

 

Attorney Deborah G. Stevenson                                                                                                                                                       Judy Aron                                                                                                                                                       

Executive Director                                                                                                                                                                                Research Director

(860) 354-3590                                                                                                                                                                                       (860) 523-7257

 

August 29, 2007

 

Susan Hamilton

Commissioner

Department of Children and Families

505 Hudson Street

Hartford, CT  06106

 

Dear Commissioner:

 

     Thank you for faxing me on August 27, 2007 a copy of the redrafted DCF Policy Sections 33-7-7, 34-12-5, and 34-2-7, (sections on Educational Neglect and Operational Definitions of Child Abuse and Neglect).  In your cover letter, you indicated that you were undertaking an effort “to clarify the distinctions between educational neglect of children in the school system and the proper exercise of parental rights in the choice to educate children at home.”  While I appreciate your efforts to modify the policies used by DCF staff to determine whether a report of educational neglect should be accepted and how it should be investigated, I’m not sure I understand how and why you are making a “distinction” as you described.  I would appreciate it if you could clarify that for me. 

 

     Also in your cover letter, you indicated that not all of my recommendations were “accepted for incorporation” into the redrafted policy sections.  You stated, “any suggestion that DCF policy direct the schools to take certain actions was rejected as beyond the scope of DCF policy.”  Could you also please clarify specifically to which of my recommendations you refer?  I would prefer not to guess so that there will be no further misunderstanding.

 

     You also indicated that you “expect the attached policy to be approved and implemented very shortly.” Could you please provide me with the specific details as to how and when that approval process is undertaken and the procedures that are utilized to obtain public input prior to approval?  I know many parents will want to know that information.

 

     Below I am enclosing a list of comments that I have regarding your redrafted policy.  I understand and appreciate your efforts to include many of my recommendations, but I have serious concerns about the following issues and I am respectfully requesting you to reconsider and redraft your proposals before finalizing them.  My concerns are as follows:

 

  1. Currently existing policy 37-7-7, Educational Neglect, Criteria for Hotline Acceptance:

A presumption exists that parents or guardians are fully responsible for ensuring school attendance for children age seven (7) through eleven (11). A pattern of unexcused absences shall be accepted as neglect.”

 

My recommendation was: 

When children are enrolled in a public or a private school, a presumption exists that parents or guardians are fully responsible for ensuring school attendance for children age seven (7) through eleven (11).

 

“When children are not enrolled in a public or a private school, a presumption exists that parents or persons having control of the children are instructing them in accordance with Connecticut General Statute §10-184.”

 

DCF’s Redrafted policy:

“Parents and guardians are fully responsible for ensuring the education of their children age seven (7) through eleven (11) “  

 

           Comment:  In a section that previously referred to attendance of children at school, why is DCF now eliminating reference to attendance? Why also delete any reference to the existence of a presumption?  Elimination of the phrase “a presumption exists” does not eliminate the actual presumption. Why does the agency not want to include a statement that a presumption exists that parents are obeying the law and not neglecting the education of their children?  Wouldn’t a clear statement to that effect go a long way to eliminating any confusion on the part of DCF caseworkers that simply because a parent withdraws the child from enrollment does not necessarily mean that the parent is neglectful?  Isn’t that at the heart of the problem that we are trying to eliminate? Isn’t the presumption of innocence an extremely important policy that should be upheld and adopted by the agency? I urge you to reconsider and redraft your policies to include such a presumption to assist in eliminating existing confusion.

 

  1. Currently existing policy 37-7-7, Educational Neglect, Criteria for Hotline Acceptance:

 

Nothing comparable.

 

DCF’S Redrafted policy:

“The Hotline may accept a report of educational neglect from a school if a child who is registered in the school has a pattern of unexcused absences or fails to attend, or if the person responsible for the child’s health, welfare, or care fails or refuses to meet the child’s educational needs.”

 

Comment:

 

The term, “registered” does not appear in the statutes, has no legal definition, and is open to widespread unnecessary confusion and misinterpretation.  It leads to questions such as, “Is a child whose parents filed a Notice of Intent with the local public school district considered “registered” and a child whose parents have not filed a Notice of Intent considered “not registered”?  The correct statutory term would be “enrolled”. See CGS 10-198a.  Therefore, I strongly urge your to reconsider and redraft the first part of this proposal to read that “neglect may be found in which a child who is enrolled in school has a pattern of unexcused absences or fails to attend…”

 

I believe that the remainder of this policy also will not resolve currently existing problems, but will exacerbate them. This policy inserts unnecessarily and without any basis in statutory law, the term “educational needs”.  Connecticut General Statute 10-184 does not require public schools, private schools, or parents and guardians to “meet the child’s educational needs”. That statute requires instruction or attendance.  DCF’s current and redrafted definition of “educational neglect”, in fact, states that it occurs when a person “interferes with the ability of a child to receive proper care and attention educationally.”  While this also does not track the language of the statute precisely, it comes closer to doing so than does the phrase “meet the child’s educational needs”.  What tracks the language of the statute most precisely is a phrase that allows a Hotline worker to accept a report of educational neglect “from a person who has a reasonable cause to suspect that a person responsible for the child’s health, welfare, or care a person is interfering with the ability of a child to receive instruction or to attend a school.”  That phrase not only would be statutorily accurate, but also would go a long way to eliminating any confusion, misinterpretation, and false reports. I strongly urge you to reconsider and redraft your proposals to include this language.

 

           In addition, your redrafted proposals eliminated another of my recommendations of  

           significant importance as follows:

 

           My recommendation was: 

 

The filing of a Notice of Intent to Instruct at Home (Notice of Intent), and the attendance by a parent at a portfolio review are not statutorily mandated requirements.  The choice of a parent not to file a Notice of Intent, not to attend a portfolio review, or not to follow the State Board of Education’s Suggested Procedures for Home Instruction shall not be sufficient grounds to intake a complaint about, or to establish a finding of, truancy of a child or neglect by a parent.”

 

           Comment:

   

Please explain to me why your agency chose not to include this extremely important recommendation.  As your agency is well aware, the Notice of Intent to Instruct at Home is part of a Suggested Procedure for Home Instruction.  It was never adopted as a statute or as an administrative regulation.  As such, many parents choose to follow it, and many parents choose not to follow it.  As a Suggested Procedure, it has worked well.  As you also know, much of the problem with the procedure is in its misinterpretation.  When school officials and DCF officials misinterpret this Suggested Procedure as mandatory, and when parents who choose not to follow that procedure, some school officials falsely report the parents to DCF as truant or educationally neglectful.  This has caused enormous amounts of unnecessary time, money, and emotional strain on families, and DCF workers alike. It has also cost your agency a great deal of money and time wasted on unnecessary investigations. A simple statement as recommended above, not only is statutorily accurate, but also would eliminate much of the confusion and waste of resources.   Please explain to me why the agency chooses not to make such a simple amendment.  Many parents will want to know.  I strongly urge you to reconsider and redraft your proposals to include this language.

 

Similarly, an advisement to caseworkers concerning the rights of parents to withdraw from the public school system and the requirements of the public school system to accept a letter of withdrawal also would eliminate an enormous amount of confusion, wasted time and economic resources.  Caseworkers also should be aware that when school officials, or any government officials, attempt to coerce parents into complying with demands which they are not required to comply, such actions by the government officials may be considered a criminal violation of the coercion statute, CGS 53a-192.

 

If caseworkers are armed with that knowledge, they, in turn, could inform any government official who calls the Hotline in an attempt to use DCF to compel the parents into compliance with demands, which they are not required to comply.  The kinds of cases we saw from February to July of this year would never have reached the stages they did if a simple advisement had been available to caseworkers notifying them of the rights of parents to withdraw and the limits on government officials.  For this reason, I made the following recommendation to be included in your proposals:

 

“A parent or person having control of a child may withdraw a child from enrollment in a public or a private school at any time for any reason by any written notification produced by the parent or person having control of a child to any school official. Once a school official receives such written notice from the parent, the school official must immediately deem the child withdrawn. The school may not place any conditions on the child or the parent prior to deeming the child withdrawn after the parent produced the written notice to withdraw. If such school does place conditions on the child or parent prior to deeming the child withdrawn, such action may be considered coercion. Legal Reference: Conn. Gen. Stat. §53a-192.”

 

The language in this recommendation is statutorily accurate.  It does not direct anyone to do anything.  It merely explains and advises for the purposes of criteria for intake of complaints. Again, please explain to me why you have chosen not to include this language in your redrafted proposals.  Many parents will want to know.  Once again, I strongly urge you to reconsider and redraft your proposals to include this language.

 

In addition, I also recommended including the following;

 

“If upon verification it appears that the LEA filed a false complaint, the LEA will be notified that DCF will report the LEA to appropriate authorities for prosecution.”

 

Could you please tell me why you chose not to include this directive in your policy manual?  It is extremely important for parents to be able to hold accountable those school officials who falsely report them to DCF.  This is also in DCF’s best interest as it reduces unnecessary work and waste of resources.  It is also important for public policy reasons for DCF not to condone the filing of false complaints and to direct caseworkers to report those who have filed false reports to the proper authorities for prosecution.  Please explain to me what, if anything, your agency will be doing about this issue.  Many parents are waiting to find out your agency’s intentions.

 

Also, in particular, could you please tell me when did your agency, pursuant to DCF Policy 33-3, disclose to the appropriate law enforcement agency the names of the persons making a false claim against Isabelle Hall-Gustafson and Sherry Preusch pursuant to DCF Policy 33-3?  When will the agency notify Isabelle Hall-Gustafson and Sherry Preusch of the names of those persons? 

 

  1. Currently existing policy: 33-7-7, Educational Neglect:

 

None comparable.

 

DCF’S Redrafted Policy:

 

“The Hotline shall not accept a report of educational neglect based solely on the decision of a parent or guardian or other person responsible for the child to provide home instruction to the child.

 

Nor shall it accept a report solely because of the decision of such parent, guardian or person responsible not to follow the prescribed procedures of a school or local board of education prior to withdrawing a child from school.

 

Reports concerning a dispute between parents and the school regarding home education shall not be accepted for investigation unless the parents have refused to comply with statutorily mandated requirements, and attempts at mediation have been unsuccessful, unless the report contains other information that may support the reporter’s suspicion of child abuse or neglect.”

 

Comment:

 

While I applaud your effort to include language to reduce many of the disputes that we have had in the past, I remain puzzled as to two issues.  Regarding the first issue, I believe it is crucial for you to add a section in the policy manual explaining that when the Hotline receives a report that a parent has decided to provide home instruction to the child but has not followed the prescribed procedures of a school or local board of education prior to withdrawing a child from school, your agency will not advise the person making that report to file with the Superior Court a Family with Service Needs Petition, and that your agency will not accept a such a report for the purposes of referring the complaint to a prosecutor for the filing a Family with Service Needs Petition. A statement to that effect included in the policy manual will go a long way to prevent such a thing from happening.  I strongly urge you to reconsider and redraft this section accordingly.

 

           Regarding the second issue, could you please explain to me why you added the phrase, “unless the report contains other information that may support the reporter’s suspicion of child abuse or neglect”?  It seems to me that this is a given that when any report contains information “other” than allegations, based on reasonable cause, of a dispute between the parents and the school regarding home education, DCF reviews that other allegation, based on the intake criteria for that particular allegation, to determine whether or not to begin an investigation.  It is clear in other parts of the policy manual that the intake worker already has that responsibility.  By specifically placing that phrase in conjunction with this policy, you give notice to school officials to make sure that they add some “other” allegation against the parent to more readily ensure that DCF will accept the complaint.  The purpose of a revision of the policy manual is to make statutory mandates clear and to eliminate the potential for misunderstanding, misinterpretation, and misuse of DCF and its resources.  Adding the phrase you propose is counter productive. Please explain to me why you believe your version is necessary.  Many parents will want to know. Again, I strongly urge you to reconsider and redraft your policy accordingly.

          

            

  1. Currently existing policy:  34-12-5, Educational Neglect, Criteria to determine educational neglect:

 

None comparable.

“Educational neglect may be found in those cases in which a child who is registered in the school has a pattern of unexcused absences or fails to attend or if the person responsible for the child’s health, welfare or care failed or refuses to meet the child’s educational needs.”

 

Comment:  I have comments similar to those found above regarding a similar statement in 37-7-7.  The term, “registered” does not appear in the statutes, has no legal definition, and is open to widespread unnecessary confusion and misinterpretation.  It leads to questions such as, “Is a child whose parents filed a Notice of Intent with the local public school district considered “registered” and a child whose parents have not filed a Notice of Intent considered “not registered”?  The correct statutory term would be “enrolled”. See CGS 10-198a.  Therefore, I strongly urge your to reconsider and redraft the first part of this proposal to read that “neglect may be found in which a child who is enrolled in school has a pattern of unexcused absences or fails to attend…”

 

In addition, Connecticut General Statute 10-184 does not require public schools, private schools, or parents and guardians to “meet the child’s educational needs”, although that usually is the goal of all concerned. That statute requires instruction or attendance.  DCF’s current and redrafted definition of “educational neglect”, in fact, states that it occurs when a person “interferes with the ability of a child to receive proper care and attention educationally.”  While this also does not track the language of the statute precisely, it comes closer to doing so than does the phrase “meet the child’s educational needs”.  What tracks the language of the statute most precisely is a phrase that allows DCF to find educational neglect “when there is reasonable cause to believe, based upon a preponderance of the evidence, that a person responsible for the child’s health, welfare, or care a person is interfering with the ability of a child to receive instruction or to attend a school.”  That phrase not only would be statutorily accurate, but also would go a long way to eliminating any confusion, misinterpretation, and false reports. I strongly urge you to reconsider and redraft your proposals to include this language.

 

 

  1. Currently existing policy: 34-12-5, Educational Neglect, Home Instruction:

 

Disputes between parents and the school system regarding home education are not appropriate for protective service intervention unless the parents have refused to comply with the State Department of Education (SDE) standards regarding home instruction and SDE mediation has been unsuccessful.”

 

My Recommendation was:

 

Disputes between parents and the school system regarding home education are not appropriate for any intervention unless the parents have refused to comply with statutorily mandated requirements and SDE mediation has been unsuccessful.

 

To be added:

The fact that the parent or person having control of a child is instructing a child at home and has not complied with requests by the LEA or the SDE that are not statutorily mandated shall not be sufficient cause for DCF to intake a complaint about the parent or child and shall not be sufficient cause to file a petition for family with service needs to the Superior Court.”

 

           DCF’s Redrafted Policy:

 

           “Educational neglect shall not be substantiated solely because of the decision of a parent,

             guardian or other person responsible for the child to provide home instruction to the

             child.

 

             Nor shall it be substantiated solely because of the decision of such parent, guardian or person responsible not to follow the prescribed procedures of a school or local board of education prior to withdrawing a child from school.

 

             Reports concerning a dispute between parents and the school system regarding home 

             education shall not be substantiated unless the parents have refused to comply with

             statutorily mandated requirements.

 

            Comment:

 

            While I applaud the effort to redraft this section, I have an additional question, similar to the one I posed above.  Is it DCF’s policy that referral for the filing of a Family with Service Needs Petition shall not be made because: (1) of the decision of a parent, guardian or other person responsible for the child to provide home instruction to the child; (2) of the decision of such parent, guardian or person responsible not to follow the prescribed procedures of a school or local board of education prior to withdrawing a child from school; or (3) of reports concerning a dispute between parents and the school system regarding home education? Please explain to me because many parents will want to know. If so, that also needs to be specifically stated in your policy manual.  Otherwise, there remains the potential for confusion, misinterpretation, and further misuse of DCF and the court system. I strongly urge you to reconsider and to redraft this section accordingly.

 

  1. Currently existing policy, 34-2-7, Operational Definitions, Educational Neglect:

 

“Except as noted below, educational neglect occurs when, by action or inaction, the parent or person having control of a child five (5) years of age and older and under eighteen (18) years of age who is not a high school graduate

 

·          fails to register the child in school

 

·         fails to allow the child to attend school or receive home instruction in accordance 

             with CONN. GEN. STAT. §10-184

 

·         fails to take appropriate steps to ensure regular attendance at school.

 

Exceptions (in accordance with CONN. GEN. STAT. §10-184):

 

    A parent or person having control of a child may exercise the option of not sending the child to school at age five (5) or age six (6) years by personally appearing at the school district office and signing an option form.  In these cases, educational neglect occurs if the parent or person having control of the child has registered the child at age five (5) or age (6) years and then does not allow the child to attend school or receive home instruction.

 

    Failure to sign a registration option form for such a child is not in and of itself educational neglect.

 

     A parent or person having control of a child sixteen (16) or seventeen (17) years of age may consent to such child’s withdrawal from school.  Such parent or person shall personally appear at the school district office and sign a withdrawal form.”

 

DCF’s Redrafted Policy:

 

Except as noted below, educational neglect occurs when, by action or inaction, the parent or person having control of a child five (5) years of age and older and under eighteen (18) years of age who is not a high school graduate

 

    Fails to register the child in school

    Fails to allow the child to attend school or receive home instruction in accordance

    with Conn. Gen. Stat. §10-284

    Fails to take appropriate steps to ensure regular attendance at school if the child is

     registered.

 

Exceptions (in accordance with Conan. Gen. Stat. §10-184):

 

   A parent or person having control of a child may exercise the option of not sending the child to school at age five (5) or age six (6) years by personally appearing at the school district office and signing an option form.  In these cases, educational neglect occurs if the parent or person having control of the child has registered the child at age five (5) or age (6) years and then does not allow the child to attend school or receive home instruction.

     Failure to sign a registration option form for such a child is not in and of itself educational neglect.

 

A parent or person having control of a child sixteen (16) or seventeen (17) years of age may consent to such child’s withdrawal from school.  Such parent or person shall personally appear at the school district office and sign a withdrawal form.”

 

Comment: 

While I applaud the effort of DCF to have the policies accurately reflect existing law, again, the term, “register”, unfortunately, does not accurately reflect existing law.  For the reasons explained above, the statutorily accurate term to use is “enrolled”.  Therefore, to avoid confusion, misunderstanding, and misuse of DCF resources, I strongly urge you to reconsider and redraft your policy eliminating the term, “register”, and substituting instead the term, “enrolled”.

 

I would also revise, for the sake of clarity, as follows:

 

Instead of:  “Fails to register the child in school

                     Fails to allow the child to attend school or receive home instruction in  

                     accordance with Conn. Gen. Stat. §10-184”

 

Replace with: “In accordance with Conn. Gen. Stat. §10-84:

                         Fails to enroll the child in a public or private school and fails to allow the

                         child to attend school; or

                         Fails to allow the child to receive home instruction”

 

Again, please reconsider and redraft your policy accordingly.

 

     In closing, I offer my appreciation of your efforts, and I sincerely hope that you will be able to respond quickly to my concerns before your agency finalizes any proposed policy changes.  I would be very happy to meet with you  to discuss any of the concerns I’ve outline in this letter.  I would also appreciate it if you would provide me with details of the procedure you are using to make these changes. I’m sure you can appreciate the concern of the public in this matter and their need also to have input on any changes before the proposals are finalized. 

 

     I am also very much concerned about the statement in your cover letter in which you indicate that your agency is “exploring the need for legislative solutions to clarify the roles and responsibilities of the various stakeholders particularly as it relates to enforcement of the false reporting statute.”  I am respectfully requesting that you include parents in any dialogue concerning the proposal of legislation in this regard.  I also would be happy to work with any of your legislative liaisons should your agency decide to seek any further legislation.  Please let me know if this is possible.

 

      I look forward to hearing from you soon.

 

                                                                   Yours truly,

 

 

 

                                                                   Deborah G. Stevenson