Family First Prevention Services Act of 2016 opposed by Prominent Senators, Social Services Organizations

The Families First Prevention Services Act of 2016 (H. R. 5456) is currently before the United States Senate where it is has remained on hold from debate on the Senate floor. The legislation, touted by advocates as being the "most substantial piece of child welfare legislation in the last 10 year", provides federal funding for up to twelve months to families providing care for a child in a child welfare case involving a county department of social services. According to a memorandum from the U.S. House Ways and Means Committee, these compensated services, aimed at preventing a child from entering foster care, include mental health services, substance abuse services, and in-home parent "skill-based programs which contemplate parent training, home visits and individual and family therapy so long as they classify as "promising", "supported", or "well-supported" as defined by the California Evidence Based Clearinghouse and as codified in the proposed legislation.


The legislation passed without opposition in the House of Representatives and was being co-sponsored in the Senate by Senators Orrin Hatch (R-Utah) and Ron Wyden (D-Oregon), initially as part of the 21st Century Cures Act, a mental health funding bill which would provide money to extend health insurance coverage. Unlike the situation in the House, however, significant opposition has materialized in the Senate lead by opposition groups in California, North Carolina and New York. In an letter addressed to Senators Charles Schumer (D-New York) and Kirsten Gillibrand (D-New York), the New York Public Welfare Association  indicated that it ". . . STRONGLY OPPOSES H.R. 5456, as it will greatly impact the ability of New York State and its 58 county-run, local departments of social services (DSS) to best serve foster children,” Furthermore, the letter states that the legislation ". . . represents a major unfunded mandate on state and local child welfare systems which must absorb the loss of federal Title IV-E funding — as well as the costs associated with the bill’s added administrative requirements."


Currently, the bill, which had been stripped from the 21st Century Cures Act, remains in jeopardy, perhaps a good thing given its implications for Federal IV-E funding as written.


While certainly no one is opposed to having fewer children in foster care, the bill seeks to accomplish this by denying compensation of what sponsors deem "inappropriate group home placements." The proposed legislation targets child[ren] who [are] a candidate for foster care, meaning that they are at imminent risk of entering foster care but who can remain safely in their home or kinship placement as long as appropriate services or programs that are necessary to prevent the entry of the child into foster care are provided. The crux of the problem is that many children fit this definition who are initially placed in family or kinship placements. Due to a number of factors, including intra-family dynamics, the patience and skill set of the placement providers, and the behavior of the children in the home, a placement will disrupt because the collective tensions between the children and the provider get the better of the situation. While assistance and support from outside agencies can help, these measures are not a cure-all. County social services agencies could likely confront the horns of a dilemma: under this legislation, an agency may be forced to choose between receiving federal funding for ineffective programs and services or placing the child in a group home, which, while more conducive toward a child's welfare, nevertheless must be done without the prospect of receiving any federal IV-E funding.


Secondarily, while it certainly is a good idea to provide the best services to families in order to prevent children from entering foster care, the question arises as to whether smaller communities with few mental health and substance abuse prevention providers are going to be able to satisfy the stringent threshold requirements for federal compensation by being  able to access a "promising", supported" or "well-supported".


Finally, the legislation, as currently written, requires each State to have non-family settings assessed on a continuing basis as a prerequisite to continued federal funding. Current child welfare legislation, such as that in the State of North Carolina, require a judicial official to be advised of the placement of a child in foster care and the court is charged with evaluating the appropriateness of the same. However, if the Family First Prevention Services Act of 2016 were to pass, it would create another level of bureaucracy which independently would determine whether a placement is meeting a child's needs. This dual assessment could lead to conflict between the State and its county departments of social services when funding is declined. More significantly, it could escalate to an even more egregious problem if the State's decision is at odds with a judge in authority over a juvenile's case.

Obama Administration; National Women's Law Center setting up Civil Rights Fight on Corporal Punishment

     As reported in the Huffington Post (http://www.huffingtonpost.com/entry/corporal-punishment_us_58337528e4b030997bc0efad) , an open letter targeting corporal punishment in schools was recently sent to local and state educational agencies and policymakers by the National Women’s Law Center (NWLC). The organization, along with a host of other organizations and individuals, urged local, state, and federal policymakers "to address the damaging use of corporal punishment against our nation’s schoolchildren." The letter further made the claim that "it [was] important to eliminate the use of corporal punishment in both public schools and private schools, which serve students receiving federal services, as well as assist in creating a safer learning environment for every child."


    This letter, following a November 2016 effort by the Obama administration to end corporal punishment, is no doubt the opening round of yet another attempt to deconstruct a traditional institution using federal law as a bludgeon.


    Schools exercise their authority based on the power that is given by local school boards and state and federal legislative bodies, as well as the authority provided by parents. Nineteen states, including North Carolina, have provided express legislative approval for corporal punishment in schools. Even where the legislature has specifically authorized a school to administer corporal punishment, a number of school administrators ultimately give parents the opportunity to "opt out" of in-school corporal punishment by submitting a letter or signing a form to that effect, an option not always exercised by parents. Despite this authority, the use of corporal punishment in schools has declined nationally with 109,000 students being subjected to corporal punishment in public schools in the 2013-14 school year, a  67% decrease from 2011-2012.  —down from 163,333 in the 2011-12 school year.


     So what accounts for the sudden interest in banning corporal punishment when it seems that in a few short years, the practice might be eliminated through disuse on its own? The answer can be found in the NWLC letter where corporal punishment is singled out as allegedly affecting "minor offenders" who disproportionately tend to be "[b]lack children" and the "disabled". The significance of both of these identifications is notable where no mention is made of the number of Caucasian students, or students of any particularized ethnicity who are affected by corporal punishment. This suggests strongly that the National Women's Law Center and the Obama Administration are attempting to develop a class of affected persons who are the subject of discrimination in violation of the Civil Rights Act and the Americans with Disabilities Act. Once such a class is developed, litigation and possible criminalization suddenly become a real possibility. 


     To draw such a conclusion is hardly an exercise in fear mongering. To the contrary, the evidence for such motives is poorly disguised when the language used in the NWLC letter makes corporal punishment analogous to animal cruelty. Moreover, the NWLC goes to lengths to discredit corporal punishment, stating that "h]arsh physical punishments do not improve students’ in-school behavior or academic performance" and citing one unnamed study which allegedly found that ". . .schools in states where corporal punishment is used perform worse on national academic assessments than schools in states that prohibit corporal punishment." Rather than engage in a mere academic debate, the evidence is clear that neither the President of the United States nor the National Women's Law Center are open to the idea that corporal punishment should be allowed in schools under any circumstance and that both are prepared to take whatever measures are available to bring about corporal punishment's demise.


     If corporal punishment should not be allowed in schools under any circumstances, if it becomes the source of litigation and criminalization, how long will it be before corporal punishment in the home itself becomes litigated and eventually criminalized? According to the Global Initiative to End All Corporal Punishment, 51 sovereign states have already banned the practice. http://www.endcorporalpunishment.org/progress/prohibiting-states/). Noteworthy is the fact that the ban doesn't just stop with corporal punishment in schools but extends to the home as well. While the momentum for such total bans on corporal punishment has waned in recent years, even in 2016 there were three new sovereign states who banned the practice entirely. The possibility for forward momentum in the United States is not altogether out of the question.


    But why not ban corporal punishment, at least in schools? After all, corporal punishment has been soundly indicted by such luminaries of the ancient world as Martial, Quintillian and Plutarch, who railed against the trauma such practices inflict upon children. The 16th Century political philosopher John Locke also condemned the practice in education where it held a central role in English society. Moreover, as the NWLC letter states, there are a host of pediatric, mental health and human rights organizations that also view the practice as barbaric and contrary to children's rights. Surely such authority should carry some weight, shouldn't it?


    One of the best answers is to be found in the fact that schools, like other social institutions, are effective only to the extent that discipline, as a form of social justice, can be maintained and the overriding mission of the institution can be accomplished. Without discipline enforced through the potential or practice of corporal punishment, the mission of the school to effectively educate all students is seriously compromised. The importance of discipline begins with Plato who in his Republic defines justice as it exists in the polis as that where each part has and does that which is assigned to it and where each person gives "every man his due.” Justice in the classroom is no different: the teacher must discharge his responsibility in a manner which respects and appreciates the roles of the student which in turn requires them to respect and appreciate the role of the teacher. Corporal punishment, when administered in the spirit of justice, with all the moderation that Plato would require, aids in the maintenance of justice in the classroom which enhances the potential for education to be received by the group as a whole.


    The condemnation of Quintillian, of Plutarch, of Locke, though critical of the effectiveness of corporal punishment as a tool to maintain discipline, nevertheless did not question the very idea that discipline was an essential requirement of an educational setting. Rather, their criticism  was aimed at irradicating injustice--excessive cruelty and shame that was commonly inflicted upon students in violation of the teacher's proper roll. But as Grotius or Hobbes would remind us, the use of force is a necessary tool in a world where others would transgress justice for their own advantage.


    Maintaining discipline in an academic setting is far from easy, as any teacher of children will tell you. Moreover, polite persuasion, whatever its many virtues, at times remains ineffective against the recalcitrant student whose parents often overlook or excuse misbehavior as either not being their problem or the fault of the teacher. With such a child, even the threat of suspension is of no consequence, since in large part it gives the recalcitrant student exactly what he wants-to be free of the school setting for a time if not once and for all. Where compulsory education makes suspension at best an ineffective tool against the misbehavior and misadventures of a recalcitrant student, stronger measures are required which can only be realized through corporal punishment. Without the availability of corporal punishment as a last-resort-tool for the educator (among a number of other tools that should be deployed first) the  minority of students, who are misbehaving and disrupting the classroom, act as a tyrant over the majority, depriving the majority of a disciplined classroom and the educational opportunity that comes with it. For this reason, corporal punishment, in a form that respects and appreciates the student and works toward the ultimate goal of justice, must be preserved no matter what the individual consequences that might accrue to the disciplined individual. The good of the whole more than adequately trumps the right of the individual when the individual comes to the table of justice with unclean hands. Forceful but appropriate correction of a child will not cause the child to die but may very well deliver the child and his classmates from a Hobbesian educational hell that proper public policy could have prevented.

2016-2017 Edition of Legal Rights of Children 3d is Now Available

2016-2017 edition of Legal Rights of Children 3d is now available

What’s New

With this 2017 Edition of Legal Rights of Children, you will find the same comprehensive, up to date treatment of the law affecting children which continues to be unmatched since the first edition of this work was published several decades ago. Noteworthy changes in this present edition include:

1.         A new section on child labor and the family.

2.         A new section on Title IX and student accommodation.

3.         Supplementation of the scope and coverage of many sections

            throughout the work.

4.         Comprehensive updates on new legislation and case law

I thank those who have purchased this book and continue to hope that it assists you in your important work, in whatever manner that work affects or is related to the legal rights of children. Additionally, I strongly encourage lawyers, judges and legal scholars to feel free to offer any suggestion that would make this work more useful to you.

Donald Trump, Hillary Clinton and Post Election Student Protest

   With the conclusion of a divisive election cycle, student protest, both for and against the election of Donald Trump and others this election cycle, is now part of the daily headlines. Some of this protest is occurring during the school day-during school hours-and on school property. With schools more than ever being held accountable for student outcomes, it seems inevitable that the patience of school principles and school system administrators will increasingly grow thin. With this there will likely be a flurry of sanctions imposed on protesting students only to be followed by inevitable litigation over the balance between First Amendment speech rights and the right of a school to maintain discipline and to preserve a positive learning environment.
   The fundamental right of students to engage in non-disruptive political protest on school grounds has been firmly upheld by the Supreme Court by such cases as Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed 2d 731 (1969) (Court upholds student protestors rights to wear black armbands to protest Vietnam War) and its progeny. However, it has been equally established by the lower Circuits that schools may restrict even highly protected individual student expression when that expression materially and substantially interferes of school discipline, the work of the school, or the rights of other students. See e.g. Henerey ex rel. Henerey v. City of St. Charles School Dist., 200 F.3d 1128, 141 Ed. Law Rep. 95 (8th Cir. 1999). The critical issue in any inquiry involving student speech or protest is whether the act would substantially disrupt the activities of the school. Where this has occurred, the courts have extended considerable latitude to school officials and administrators to either restrict or prohibit the disruptive activity. See Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98, 175 Ed. Law Rep. 506 (D. Mass 2003)( School administrators act denying distribution of literature that was deemed disruptive upheld); Riggan v. Midland Independent School Dist., 86 F. Supp. 2d 647, 142 Ed. Law Rep. 836 (W.D. Tex. 2000) (student conduct that is materially disruptive not immunized by First Amendment).
   Thus it is fundamentally clear that student walkouts in the middle of the school day, student protest that has at its core denunciation of one party or another, and student vandalism--in short, all the things that have been transpiring across the United States for the past week -- all fall within the scope of administrative regulation. For now, the students have won the sympathy of those in charge. But when protest and non-attendance start disrupting the school day, when academic scores and school standings decline, and persistent offense become a regular feature of the American educational landscape, the tide of sympathy will most certainly turn against these protestors. At the end of the day, the integrity and productivity of the educational system will be held to be the paramount value, eclipsing the subjective unhappiness of many of the students that make it up. And it will again be the job of the American court system, like it was in 1969,  to sort it all out again.

Verification of Pleadings, Notary Error, and the Presumption of Appropriate Performance

   It is crucial to properly verify juvenile petitions and motions seeking to terminate parental rights. If any one should doubt this admonition, they need only reference the decisions of the North Carolina Carolina Supreme Court in recent years which have repeatedly tied subject matter jurisdiction to this ministerial act. Take for instance the Court's 2006 decision in In re T.R.P, 360 N.C. 588,
636 S.E.2d 787 (2006)), where the Court was confronted with a juvenile petition that was "notarized, but was neither signed nor verified by the Director . . . or any authorized
representative thereof. Id. at 589, 636 S.E.2d at 789. Noting not just the importance of the verification process to confer proper jurisdictional authority upon a trial court, the Court also emphasized that verification had a safekeeping function where the General Assembly ensured through the verification requirement  “that our courts exercise their power only when an identifiable government actor ‘vouches’ for the validity of the allegations." Id. at 592, 791.
    Fast forward eight years later and the issue still carries the same potency-where a petition is not verified, the Court still maintains the petition to be void ab ititio. But what if the petition was verified but there were defects with the verification process?  In its March 2016 opinion in the Matter of N.T
_N.C.__,__S.E.2d (March 18, 2016), the Court was confronted this very problem. Unlike the scenario in T.R.P., an official had verified a signed petition but the signature of the verifying official was illegible and lacked any indication of the officials title. The Court of Appeals had determined that these defects deprived the trial court from obtaining subject matter jurisdiction. In re N.T., __N.C. App.__, 769 S.E.2d 658 (2015). Not the case, announced the higher court. In its decision reversing the Court of Appeals,  the Supreme Court distinguished T.R.P. from the facts of N.T.: it wasn't that verification didn't occur but rather there was a challenge to the authority of the verifying official to perform the act of verification. As such, the Court made it clear that “[g]enerally there is a presumption that a public official in the performance of an official duty acts in accordance with the law and the authority conferred upon him." Moreover, the Court continued, " [t]he burden is upon the contesting party to overcome this presumption.” In re N.T., at ___ citing State v. Watts, 289 N.C. 445, 449, 222 S.E.2d 389, 391 (1976) (citations omitted).
      While subject matter continues to be absent where unverified petitions or motions that are filed with the trial court, it seems that the Supreme Court intends to narrowly focus its holding on the subject to facts that actually suggest that the verification process did not occur. Where there are defects with the process itself (i.e. illegible signature, boxes not checked, expiration of notary commission not present), the official acts of a verifying official are subject to a presumption of administrative appropriateness. Unless this presumption is overcome, the act stands, is presumed appropriate, and subject matter jurisdiction will be found to have accrued to the trial court.

 

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Title IX and Transgender Facilities Access: Divided Courts and No Consensus

          North Carolina's House Bill 2 continues to make national headlines. Yet, it bears mentioning that Title IX's applicability to allowing transgender access to school facilities is one that has embroiled several states, not just North Carolina. Of course, it is not surprising to understand that transgender individuals have been secretly using the restroom of their preference for as long as there have been restrooms. What is new under the sun is that transgender subjective choice can amount to a legal right. The controversial idea gained significant foothold after the U.S. Department of Education provided written guidance to school systems regarding the interpretation of the term "sex" as defined used in Title IX. See Office of Civil Rights, Dept. of Educ., Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (2014) available at http://www2.ed.gov/about/offices/list/ocr/docs /faqs-title-ix-single-sex-201412.pdf. See also G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016).

      According to the Department, the term "sex" is not a matter to be interpreted strictly according to biology but must rather encompass an individual's subjective gender identity as well. As such a transgender individual, according to the Department, has a legal right to utilize school bathroom or locker room facilities that match their subjective gender identity, even if this differs from their biological gender. The response to this has been far from uniform, with school systems in different districts alternatively coming in to conformity with the Department's guidance or choosing to litigate the issue.

     For instance, in one Illinois school district, school officials entered into an agreement with the Department of Education’s Office of Civil Rights to allow transgender students to utilize locker and restroom facilities that correspond to transgender students' subjective sexual identity, something that previously would have been off-limits. This action was subsequently challenged in federal court on grounds that the school system’s agreement with the Department of Education . . . “trample[s] students' privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males." See Students& Parents for Privacy v. United States Dep't of Educ., 2016 U.S. Dist. ___(N.D. Ill. June 15, 2016). Similar litigation has developed in other jurisdictions raising essentially the same issue: inadequate facility management which has created an unsafe educational environment. Currently, a number of states have litigation pending, the results being far from one sided. A sample of the most significant litigation follows:


Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657, 661 (W.D. Pa. 2015)( No Equal Protection, Title VII, or Title IX violation by requiring transgender student to use facilities that correspond to biological sexual identity)


Bd. of Educ. v. United States Dep't of Educ., 2016 U.S. Dist. ____ (S.D. Ohio Aug. 15, 2016); G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016) (Fourth Circuit reverses trial court dismissal of transgender claim of violation of Title IX claim and remands for trial court consideration of Department of Education guidance as controlling authority in determining whether Title IX violation had occurred)


Texas v. United States, 2016 U.S. Dist. LEXIS 113459 (N.D. Tex. Aug. 21, 2016) (Preliminary injunction granted enjoining U.S. Department of Education from enforcing its guidance recommendations against recalcitrant school district).


Bd. of Educ. v. U.S. Dep't of Educ., 2016 U.S. Dist.____ (S.D. Ohio Sept. 26, 2016) (Preliminary injunction of transgender student granted prohibiting school district from prohibiting use of restroom that conforms to students subjective gender identity).

Court of Appeals: counsel's few words during 19 minute TPR hearing troubling but not per se inneffective assistance.

     What is a defense attorney to do? One attorney no doubt was asking this question in a 2015 Orange County, North Carolina District Court case that landed this summer before the North Carolina Court of Appeals. The case, In the Matter of T.D. and J.D., __N.C. App.__,__S.E.2d__(July 19, 2016), involved a Respondent with a long history of serious substance abuse issues and a history
of not complying with court directives. The hearing before the Orange County District Court lasted all of 19 minutes. During that time, the Respondent alleged in her appeal, that her counsel " . .uttered fewer than fifty words during the entire termination hearing , most of which were irrelevant to the proceeding. . .did not introduce any evidence at either the adjudication or the disposition stage of the hearing; and. . .never objected to the trial court finding termination of parental rights in the juveniles’ best interests."

     Such allegations are no doubt serious, especially when the Court of Appeals in its opinion found the "respondent’s characterizations of her trial counsel’s actions, or lack thereof. . . . fully supported by the record." Not surprisingly, the case was remanded to the trial court for further fact finding on the issue of effective assistance of counsel and if present, whether such a deficient performance prejudiced respondent such that she is entitled to a new termination of parental rights hearing.

     On remand, a number of questions will indeed have to be asked, particularly with regard to counsel's ability to consult with the respondent and whether she had adequately assisted counsel in the preparation of the defense of the hearing. Notwithstanding the ultimate outcome of the case, a few things bear emphasis with regard to defense counsel's obligation at any juvenile hearing, regardless of the assistance provided by the client.

     First, if the client is absent, has provided counsel no assistance and no direction as to the client's position, this same fact should be placed on the record. In fact, ethical requirements may mandate such behavior. (See RPC 223- mandatory withdrawal where attorney unable to locate client after diligent search; 03 FEO 16 same as applied to dependency proceedings with the addition that counsel may not advocate for a particular position). Second, when the client is present at the hearing and is available for consultation, the attorney not only has the obligation to consult with the client about the direction they wish to take during the litigation but advocate zealously on the client's behalf to the extent permitted by legal and ethical constraints. (See In re S.N.W., 204 N.C. App. 556, 560, 698 S.E.2d 76, 79 (2010)). This may not give the attorney much to work with in terms of a substantive defense. However,  it must be remembered that it is not the respondent's obligation to provide any evidence at the adjudicatory stage of an dependency or termination proceeding. Accordingly,  it is entirely appropriate to follow a strategy where the defense confines its case to taking pot shots, if you will, at the evidence provided by the county department of social services: challenging witnesses and evidence provided by the petitioner or movant calculated to establish the dependency case. Under very few circumstances is it legally or ethically acceptable to remain essentially silent if a client's wishes are clearly able to be ascertained through simple consultation. Doing so is perilous, exposes one to an ineffective assistance claim, and probably will result in an unpleasant call to one's liability insurance carrier.