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
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:
“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.
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?
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.
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.
“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:
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.
“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