Unsupported Neglect Allegations against a Mother at a Fair Hearing – Case Study

Unsupported Neglect Allegations against a Mother at a Fair Hearing - Case Study

Procedural History:

A 51A report was filed against the Mother and screened in as a non-emergency response for “neglect”. The alleged neglect in this case was “the Child’s excessive school absences. Mother had failed to provide documentation of the Child’s illness or any medical excuse for absences.” The Child had missed more than 40 days of school in the current academic year, as well as over 90 days the previous academic year. The Child was enrolled in first grade and failing this grade for the second time. The 51B investigation supported the allegation of neglect as the school and investigator reported that there was no medical documentation of Child’s absences due to the alleged illness.

A fair hearing was scheduled, however, the original attorney failed to appear. The Mother was unable to represent herself at the hearing. Upon retaining our services, we requested to enter medical documents into evidence on behalf of the Mother. These include records from the Child’s medical providers with allowances for missed days of school, faxed documents that had been sent to the Child’s school, diagnoses for the Child, and updates and progress reports for Child from various occupational therapies and speech and language appointments. There were several signed recommendations for temporary home education due to the severity of the Child’s illness. This evidence directly contradicts the statements made by both the investigator and the Child’s school that no medical records were on file. Further, Child’s teachers and tutors state in their affidavits that the school was made aware of Child’s medical conditions in multiple Individualized Education Plan (“IEP’s”) meetings which Mother was always present for.

The Mother rejected IEP as the IEP was identical to the previous year and did not feel this was the best plan for the Child’s needs. Mother instead wanted a “team meeting,” with the Child’s teachers and tutor to determine the best course of action for Child. A DCF educational advocate began contacting the Child’s school via email regarding the school’s procedures surrounding prolonged student absences. These emails revealed that the school had failed to follow their procedures. It was also revealed that the 51B investigation was not thoroughly completed. The investigator had failed to contact any of the doctors listed in the 51A report, or the list that was given by Mother during the home visit. Ultimately, we asked, with the provided evidence, that the decision supporting “neglect” against Mother be reversed.

Issue:

Whether the allegations of “neglect” should be supported against Mother for Child’s absences regarding a lack of medical documentation.

Rule of Law:

Neglect means failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability, and growth, or other essential care; provided, however, that such inability is not due solely to inadequate economic resources or solely to the existence of a handicapping condition. This definition is not dependent upon location {i.e., neglect can occur while the Child is in an out-of-home or in-home setting.) [110 CMR 2.00].

Analysis:

The 51A that was screened in was the result of Child’s prolonged absence from school. At the time of the filing, the Child had missed more than 40 days of school for the current academic year and more than 90 days the previous year. The Child was failing to meet developmental milestones in reading, language, and fine motor skills for first graders. This was the Child’s second time in first grade.

In the documents provided, the Child was diagnosed with intermittent fevers, abdominal pain, and febrile seizures for 11 months. Child was excused for several doctor’s appointments during that time. Child was approved to return to school in September by an approving doctor. Child was hospitalized later in the month due to constipation. Child was prescribed Miralax and authorized to return to school. Child was hospitalized again in December. Along with these key events, there are over 40 doctor’s notes excusing Child’s absences for various appointments and procedures in the questioned time frame.

The Physicians statement for Temporary Home education was signed in the next year due to Child’s illness. Child was approved to return to school. A second statement for Temporary Home Education was signed later in the month due to illness, with her symptoms being “intermittent and unpredictable.” The Child was expected to return to school in the future.

Child was diagnosed with gastroparesis and did receive ongoing sensory and speech treatment. The CleavlandClinic.org describes gastroparesis as a “disease in which the stomach cannot empty itself of food in a normal fashion…. Gastroparesis is caused by nerve injury, including damage to the vagus nerve. In its normal state, the vagus nerve contracts (tightens) the stomach muscles to help move food through the digestive tract. In cases of gastroparesis, the vagus nerve is damaged by diabetes. This prevents the muscles of the stomach and intestine from working properly, which keeps food from moving from the stomach to the intestines.” The Child also has sensory processing issues, which causes her to overheat, sweat, and dislike certain textures of clothing. These sensory issues are the root of the report’s hygiene concern, not neglect from the Mother.

Child was on an IEP with the school as the Child demonstrated delays in reading comprehension, as well as gross and fine motor skills. Child was showing slow and steady progress in some areas but getting worse in others. The Child was working with a tutor as well as an occupational therapist and a Speech and Language therapist. These services were paid out of pocket by the Mother. Child was making progress and reaching goals set in therapies, reflected in the progress updates. However, the Child’s IEP remained the same the next school year, despite the improvements and remissions from the Child.

A DCF educational advocate (hereinafter advocate) began contacting the school via email to request Child’s records. The advocate wanted the school to prove it was following procedure. The school was unable to provide such documentation to DCF. The school stated there was no other documentation regarding communication with home or any third parties. This was evidence that the school was not following its procedures. Additionally, the hygiene issues raised by the school were caused by Child’s sensory processing issues. The advocate states this should have raised red flags with the school and that the district has an obligation to test in all areas of suspected disability. The school had failed to take action and help this child and instead blamed the Mother. The advocate contacted a psychologist about examining the Child for Autism Spectrum Disorder.

The advocate had requested increased services from the school, which included the Child’s occupational, language, and academic support services. The requests were made pursuant to 603 CMR 28.03 “upon receipt of a physician’s written order verifying that any student enrolled in a public school or placed by the public school in a private setting must remain at home or in a hospital on a day or overnight basis, or any combination of both, for medical reasons and for a period of not less than 14 school days in any school year, the principal shall arrange for provision of educational services in the home or hospital. Such services shall be provided with sufficient frequency to allow the student to continue his or her educational program, as long as such services do not interfere with the medical needs of the student. The principal shall coordinate such services with the Administrator of Special Education for eligible students. Such educational services shall not be considered special education unless the student has been determined eligible for such services, and the service include services on the student’s IEP.” The student had two Temporary Home Education statements signed that met the 14 school day criteria for the school to provide services for the Child. Had the principal followed the procedure outlined in this statute, the school would have been in contact with the Child’s medical providers as well as providing services that the Mother was paying for out of pocket. By failing to provide these services, the school violates the above statute. Both the Child’s teachers and tutor state, in their affidavits, that the school was aware of the Child’s medical conditions, and that the school was aware Mother was paying out of pocket for services. Despite all of this the school still filed “neglect” allegations against the Mother.

Mother was not made aware at any point that she could reject the principal’s recommendation for retention. Advocate did not personally believe in retention. Instead, advocate recommended advancing the Child with an IEP and planned to increase services to meet goals. Should the school maintain the retention decision; however, the school would be at fault for failing to comply with regulations around extended medical-related absences.

In addition to the school’s failures, the 51B investigator failed to compile information necessary for a thorough and accurate investigation. The 51B investigator failed to speak with any medical providers for the Child, despite the list being present in the 51A report and the Mother providing it during the home visit. The Fair Hearing transcripts states that the investigator did not reach out to any medical providers because they were not looking for “medical neglect,” but because Child was missing school. The school also failed to provide the investigator with medical records that were on file and instead told the investigator that they had no such records regarding the Child. When speaking to the school the investigator was told the Child had “no diagnosis” in lieu of all medical evidence that had been submitted by Mother and Child’s doctors. The investigator failed to corroborate or disprove the school’s assertions. During the school visit, the investigator only spoke to the Child, the Child’s teachers, and parents. Investigator did not talk to the principal and failed to arrange a conference call with the one doctor he contacted from the 51A report. When visiting the home, the investigator spoke with both parents and Child who were present at the time. During this visit, the Mother was wholly cooperative and gave the investigator unfettered access to the home. The Mother also provided the investigator with a list of doctors involved with Child’s case and told him the Child has missed a lot of school. The Child is very sick and in a lot of pain.

Despite all the information provided, the investigator still supported the allegations of “neglect” against the Mother. Pursuant to 110 CMR 2.00 “neglect means failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability, and growth, or other essential care; provided, however, that such inability is not due solely to inadequate economic resources or solely to the existence of a handicapping condition.” However, the Mother was going above and beyond to ensure the Child was getting the services they needed. Mother was paying for occupational therapy, speech and language appointments, and tutoring, all of which were being paid for out of pocket. The Child was missing school solely due to well-documented illness and related appointments. The tutor of the Child, who is a mandated reporter, states she has never seen instances of neglect by the Mother.

Conclusion:

According to the Department of Children and Families, “neglect” was present solely because of how many days of school the Child had missed. The school misrepresented the fact that they had no medical records related to the Child’s absences from school. This misrepresentation was made despite both Mother and Child’s doctors providing evidence that said documents had been sent to the school. Additionally, the investigator failed to make sufficient contact with any of the Child’s doctors and concluded that the Mother was neglectful. The school also failed to provide necessary services to the Child who met the requirements of 603 CMR 28.03 on at least two occasions based on documents submitted. The school also failed to follow its procedures regarding extended student absence by not contacting the Child’s doctors and not updating the Child’s IEP to account for progress and remissions from school. The school also failed in its obligation to test for suspected disability after Child showed signs of sensory issues. Ultimately, the school failed in its obligations to the Child and parents. Instead of taking responsibility or corrective action, the school filed a 51A against the Mother who was making incredible efforts to care for the Child. We moved on behalf of Mother to request the allegation of neglect against her be unsupported. Much to the credit of the Fair Hearing Officer, DCF agreed with our supporting evidence and unsupported the allegation against our client.

Case Study Disclaimer:

To protect the confidentiality and privacy of all, the names and dates have been changed. The facts and analysis are taken from the original Finding of Facts written. The complete Findings of Fact and Rulings of Law is not limited to the following analysis.

Kevin Seaver is an experienced, trusted lawyer who successfully represents clients against DCF from Boston, Massachusetts. Call Kevin at (617) 263-2633 or request a Free Consultation online!

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