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LEGISLATIVE UPDATES: CHILDHOOD TRAUMA

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In August, Governor Pritzker signed a bill into law to help schools properly address childhood trauma with trained teachers, administrators and staff. At least 40% of children in Illinois have experienced at least one adverse childhood experience. At least 10% of youth across the state have had three or more adverse experiences. Hispanic and Black children are impacted at a much higher rate.

Adverse childhood experiences or ACES, are potentially traumatic events that occur in childhood (0-17 years). For example:

  • Experiencing violence, abuse or neglect
  • Witnessing violence in the home or community
  • Having a family member attempt or die by suicide.

Also included are aspects of the child’s environment that can undermine their sense of safety, stability , and bonding such as growing up in a household with:

  • Substance abuse problems
  • Mental health problems
  • Instability due to parental separation or household members being in jail or prison.

ACES are linked to chronic health problems, mental illness, and substance abuse problems in adolescence and adulthood. ACEs can also negatively impact education, job opportunities, and earning potential.

            In an effort to address the impact of trauma on children, the Illinois State Board of Education will be required to develop a Children’s Adversity Index to measure community childhood trauma exposure for kids three to 18 years old by May 31, 2025. Although some school districts are providing mental health services to address trauma these interventions are not systemic and depend on the efforts of individual community leaders and school districts. Teacher institutes will be required to provide instruction of trauma-informed practices.

BULLYING

Public Act 103-47 amends the School Code provisions to include the definition of bullying targeting based on physical appearance, socioeconomic status, academic status, pregnancy, parenting status, and homelessness. This law requires that a school district’s bullying procedures for informing parents or guardians of all students in the alleged incident of bullying within 24 hours after the school’s administration is made aware of the incident. Requires that all individual instances of bullying, as well as threats, suggestion, or instances of self-harm be reported to the parents or legal guardians of those involved under the guidelines provided. Effective June 9, 2023.

FAMILY LAW

Guardian Ad Litem: Public Act 103-126 amends the guardian ad litem (GAL) statute in the Illinois Marriage and Dissolution of Marriage Act to clarify and resolve issues with the duties of the GALs. These changes are as follows: 1)Requiring a written report or recommendations not less than 30 days before a final hearing or trial unless the court directs otherwise. It also allows the judge to direct that the GAL propose an allocation order in addition to the written report or recommendations. This is to prevent having a surprise GAL recommendation at trial with no written proposal in advance. 2) It also allows for the written report or recommendations are to be admitted in evidence without the need for any foundation. 3) Gives the GAL, at the discretion of the court, to : a) to be present for all proceedings, including in camera examinations of the child; b) issue subpoenas for records as part of his or her investigation; and c) file pleadings related to procedural matters. Effective Jan.1, 2024.

MENTAL HEALTH AWARENESS

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This school year has been one where student’s mental health issues have been at the top of mind in cases in our office. Regrettably, this has been a period where calls from clients often involves bullying, threats of school violence, and bringing weapons to school. These are not neatly categorized since the client may be experiencing all three issues simultaneously.

The below fact pattern is an example of numerous cases that have presented themselves to our office in the past few months:

A middle-school student in anger informed a group of students at lunch that he was thinking of shooting up the school. This student had been repeatedly bullied over the last six months and teased because he was in special education. He had been knocked down at gym and called a gay slur. The student told a teacher who encouraged him to work it out with the other boys.

The student was embarrassed to tell his parents that this was happening. He became increasingly isolated and started to complain of stomach aches and illness on many mornings.

The student was pushed down at outdoor recess and kicked by one of the boys who had been bullying him all year. No adult witnessed this event. The next day he came to school with a knife in his backpack. He told another student that he was going to hurt someone if he was bullied again. That student reported this to the School Resource Officer who searched his backpack and locker.  A knife was discovered in the pocket of his backpack. The student was suspended and faced expulsion.

This fact pattern is unfortunately not isolated and is part of a pattern that has been increasingly common this school year.

Despite much anti-bullying rhetoric from schools, it has been my experience that this is often a reactive statement but that little is done to address a culture of bullying and threats until it has reached a crisis.

What can parents do:

  • Talk to their children and model behavior.
  • If your child is the victim of bullying put your concerns in writing and insist on a plan of action from the school. (For example, implementation of a written safety plan).
  • If your child is accused of bullying insist on a meeting with the school to discuss the concerns and allegations.
  • Determine if the school has a written anti-bullying policy.
  • Request a bullying investigation in writing.

Resources:

ISBE: Student Care (217)-785-5585

https://www.isbe.net/student-care

Bullying Illinois School Code 105 ILCS 5/27-23.7

Safe2Help Illinois offers students and families a safe, confidential way in which to share information that might help prevent suicides, bullying, school violence or other threats to school safety. This program is not intended to suspend, expel, or punish students. Rather, the goal is to get students to “Seek Help Before Harm.” Safe2Help Illinois will also develop an educational curriculum aimed at changing the culture in Illinois schools while also providing the resources to help parents and educators reinforce the components of this program. 

Safe2Help Illinois is a 24/7 program where students can use a free app, text/phone, website, and other social media platforms to report school safety issues in a confidential environment. Once vetted, the tips will immediately be shared with local school officials, mental health professionals and/or local law enforcement, depending on the nature of the tip. The program also will help local officials by connecting them with mental health resources or other appropriate resources to intervene and help students before they harm themselves or others. Visit their website to learn more.

law

NEW GUIDANCE HELPS SCHOOLS SUPPORT STUDENTS WITH DISABILITIES and AVOID DISCRIMINATORY USE OF DISCIPLINE

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On July 19,2022, the Department of Education for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) released guidance to assist public elementary and secondary schools fulfill their responsibilities to meet the needs of students with disabilities and avoid discriminatory use of student discipline.

These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students through pandemic recovery.

            “ All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline”, said U.S. Secretary of Education Miguel Cardona. “ Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs-including their disability- based behavior.  We also expect that districts utilize the American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral support and special education services they need to thrive. “

            The new releases reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability- based behavior.

The new resources include:

The Minor’s Right to Confidentiality under Illinois Law

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Parents are often shocked at how much control their minor child has over their mental health records. In a post-dissolution of marriage proceeding, the petitioner mother sought to restrict the father’s parenting time with their minor child based on allegations that the father would continue to interfere with the medical services necessary for the child’s mental health. The father moved for production of the child’s medical, psychiatric, psychological, and school records, and the mother objected based on the child’s statutory privilege to keep the requested records confidential and objected to disclosing the records to his father. The trial court denied the father’s entire request for production of the child’s records. The Appellate Court addressed the issues that arise in the context of divorce and post-decree matters, specifically a minor’s right to deny access to his or her mental records, whether in the context of mental health treatment by private practitioners as well as in a therapeutic day school.

The minor was seeing a therapist and attended a therapeutic day school. Father sought both the entire school records as well as the private treatment provider’s records. Mother and the child representative were both in possession of the records. The minor objected to the disclosure of these records to the father.

The Appellate Court addressed two certified questions regarding these issues. The issues raised by the modified certified questions of law are whether a trial court, in a proceeding related to a petition to restrict parenting time under section 603.10 of the Marriage Act, (750 ILCS 5/603.10 (West 2018), where the allegations involve the mental health of a child who is at least 12 but under 18 years old, may deny a parent based on the provisions of the Confidentiality Act or the best interests of the child(1) the ability to discover otherwise relevant evidence concerning the child’s mental health and therapeutic school records on the ground that the child in question does not want the evidence disclosed to one parent; (2) the ability to discover the child’s medical records concerning the child’s mental health and school records from a therapeutic school even though those records are relevant to the proceedings and the parent is entitled to have access to those records pursuant to the parties’ allocation parental allocation judgment; and (3) access to the child’s mental health and therapeutic information that the child’s representative has reviewed.

The father in this case, argued that he wasn’t seeking records from the therapist but from his former wife. The court found that the father cannot avoid the effect of the child asserting his privilege against disclosure by seeking the documents from another source besides the therapist. The court further held that this privilege is not absolute and looked to the statute for clarity.
Section 4(a)(3) of the Confidentiality Act provides:
§ 4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s records or any part thereof:
(3) the parents of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years of age from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any [.] (Emphasis added.) 740 ILCS 110/4(a)(3) (West 2018).

The court ruled that the father in this case was entitled to the limited information that is outlined in the statute but nothing more after petitioning the court for that access. The fact that the entire record was disclosed to the mother, or the child representative does not nullify the child’s objection to the same information to the father.

The father also sought records from the therapeutic day school where his child attended asserting that he was entitled to education records under the terms of the Allocation Judgment. The court recognized the ambiguity created by the records kept by a therapeutic school and reasoned as follows:
Section 5(f)(1) of the Student Records Act recognizes the patient-therapist privilege and keeps confidential information communicated in confidence to a psychologist or other psychotherapist, school social worker, school counselor or school psychologist intern who works under the direct supervision of a school social worker, school counselor, or school psychologist. This list of protected communications includes information communicated in confidence to a teacher of an academic subject at a therapeutic school. 105 ILCS 10/5(f)(2) (West 2020). “Construing the provisions of the Student Records Act and the Confidentiality Act harmoniously, we conclude that privileged records and communications under the Confidentiality Act do not include a minor’s grades, grade level, academic assessments, and similar information, even if that child attends a therapeutic day school. Consequently, a trial court cannot deny a parent access under section 4(a)(3) of the Confidentiality Act access to the non-privileged school records of a minor child who attends a therapeutic day school, even if that child, who is at least 12 but under 18 years of age, objects to the parents request to inspect and copy those records. Furthermore, the trial court may conduct an in-camera review to ensure that the child’s therapeutic school’s records do not contain any privileged information concerning the child’s mental health services beyond the limited information regarding the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, which the parent is entitled to receive. 740 ILCS 110/4(a)(3) (West 2018).

The Child and Family Law Center: Advocating for the Legal Rights of Children for over 25 years

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What does it take to win a Due Process Hearing?

A due process hearing is one of the mechanisms for resolving disputes regarding special education services between parents and school districts. Other less formal options such as mediation or a resolution session are available and typically occur before the parties go to a due process hearing. We make every effort to resolve disputes prior to going to a due process hearing. However, when it is not possible to resolve the issues a due process hearing may be necessary.

Parents often ask what it takes to win a due process hearing and this question is one that I have given a lot of thought to over the years. My answer is based on my experience litigating due process cases for over twenty-six years. Some of the answers may seem obvious while others may not. The following is a compilation of lessons learned as a parent’s attorney in these proceedings.

  1. The facts support the parent’s claim that their child was denied their rights under the Individuals with Disabilities Education Act (“IDEA”). There are many scenarios that meet this definition. Typically, the student has not received appropriate services, failed to make meaningful progress, or was not identified in a timely manner as a student with a disability. *
  2. The denial of these rights must rise to a denial of a free, appropriate, public education. Data supporting these arguments is a necessary element in a successful due process hearing.
  3. A well-organized parent who keeps good records is an asset in a hearing. Preparation from an attorney and collaboration with the family are essential.
  4. Documentation of the parental concerns to the school and evidence of the district’s failure to respond appropriately are often key elements in a hearing.
  5. The law supports the legal position that you are taking in the hearing. This is a complicated area of law that requires a knowledge of case law and prior decisions that provide guidance on the legal standards.
  6. Expert witnesses often determine whether a parent will prevail in a hearing.  Parent’s opinions are unlikely without some independent source, to persuade a hearing officer of their position. Choose experts carefully.
  7. The parent’s willingness to work with the school and to participate in the process even though there may an “agreement to disagree” on what is needed is a factor in hearing officer’s decisions.
  8. The ability to clearly articulate the relief you want from the hearing officer. Parents in conjunction with their legal counsel should be prepared to state very clearly what they want the school to do.
  9. At all times parents and legal counsel should behave in a professional manner.

Selected Resources:

http://wwwisbe.net/documents/parents-guide-special-ed-Aug.20pdf

If you are considering a due process action or simply want to discuss your child’s special education rights, please call our office at (312)-640-0500 and ask to speak to Micki Moran or email her at mmoran@grundlaw.com

Getting the Right Reading Intervention Shouldn’t Be So Hard

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It has been nearly 26 years since I started my practice with a focus on special education law and advocacy for children and adolescents. The practice is and was inspired and informed by my own son’s struggle with dyslexia. I was fortunate to have both the financial ability and resources to provide him with excellent research -based intervention. He learned to read using an Orton-Gillingham based approach. It was neither a fast nor easy solution. It worked. He is an avid reader and has a lifelong love of learning.

            After all this time the issue of reading intervention continues to be difficult for parents. Schools resist “labeling/identifying struggling readers as dyslexia. It is not uncommon for school systems to delay evaluations and interventions. Schools often do not utilize interventions that are researched based for students with specific learning disabilities relying on a patchwork of eclectic programs that depend on the skills or lack thereof a particular teacher and may even depend on what school a student attends in a district. This haphazard approach to something as basic as reading still surprises me. The science of reading intervention is not new. The Orton-Gillingham approach used 32 years that was implemented by my son’s reading teachers is hardly cutting edge and there is very little dispute that these interventions are needed and effective.

            Despite this fact, a common complaint from clients who seek our legal assistance has to do with the failure of their child’s school to agree to or even utilize research-based methodologies. Parents should push back when they are met with this resistance. Below, I have outlined a few tips for families who find themselves in this situation.

  1. Insist on an evaluation. If your school will not evaluate seek out a private comprehensive educational evaluation.
  2. Trust your gut. Parents often know there is a problem before the school does.
  3. Put every communication regarding your concerns to the school in writing.
  4. Track your child’s progress.
  5. Stay informed. [Resources to follow below]
  6. If the school takes a wait and see approach- agree on how long this period will last. Confirm that in writing.
  7. Agree on how progress or lack of progress will be monitored.
  8. Read with your child at home. The pandemic and school closures revealed deficits in reading that many parents were unaware of until their child was home and they saw the struggle first- hand.

Resources:

  • Dyslexia Handbook, Illinois State Board of Education, www.isbe.net

WHAT TO DO IF YOUR CHILD IS ARRESTED?

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Summer is upon us and as a general rule this is a time when our office gets calls from parents regarding their teenager or young adults arrest or questioning by police.

Have this discussion now. One time is not enough. Here are some Frequently Asked Questions that I hope will educate you and your teenager.

What should my teenager do if they are stopped by the police?

  • Be respectful.
  • Keep your hands out of your pocket and visible to the police.
  • Tell your child to provide his or her identification to the officer when asked.
  • Provide the insurance information and registration if they are driving.
  • Give them the name of your parents.
  • Politely but firmly indicate that they have been told by their parents not to answer any questions. Ask them to call your parents or an attorney. Have them state that they will not answer any questions. This is hard for most young people. It is very common even when they know that they shouldn’t talk to the police for them to give great detail or even sign a written statement. Police can be intimidating and often will promise that if the young person tells them what happened they won’t be arrested.
  • The police are not your friend.

Do I have to be present if my child is questioned? Not necessarily. Students are often questioned at school and describe to school officials the details of the incident. They are not “in custody”. Students should be instructed to ask to call a parent before being questioned at school.

However, Illinois law requires police to “immediately make a reasonable attempt to notify the parent” after a minor is taken into custody.

Should I consult an attorney? The answer is yes. The stakes are high and parents should not attempt to play lawyer. Be very cautious about urging your child to tell an officer everything and as a result waiving their rights. This isn’t the time to teach your child a lesson.

Can my teenager or young adult with a disability be arrested? Yes.

How can I prepare my child? If your child has a disability it is essential that you prepare them for interactions for police contact. Parents are often shocked that their child with autism or other developmental disabilities can be questioned by police and arrested. Some families I work with have a script that their teen can practice regarding police contact. It is helpful that this “script” include a checklist of what to do. Autism/Advocacy Network aane.org has a downloadable wallet card that an individual with autism can carry and provide to police.

If your child has been arrested, ticketed, or you are concerned that they will be facing legal consequences please call our office for a consultation at (312)-640-0500.            

Co-Parenting in the Age of Coronavirus

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There is no road map that allows us to provide hard guidance on how to manage parenting during this difficult time. Families are in unfamiliar territory. However, there are some things that hopefully will help you navigate co-parenting.

  1. Follow existing court orders. Parents must follow existing court orders. This is scary advice for clients who may feel that the other parent is not practicing social distancing practices. Courts are not generally hearing these cases at the moment. In Illinois most courts are closed until mid-May with the exception of emergencies. Common sense would indicate that if one parent has been exposed to COVID-19 then act responsibly even though it may violate the parenting plan. If a child or other family is at high risk medically that may impact how parenting time is exercised, don’t be arbitrary and act responsibly. Your failure to act in good faith during this time will be used against you in the future.
  2. Modifications. If you do decide to modify the existing Parenting Plan, I suggest you get this modification in writing. This can be done with your attorney by drafting a stipulation amending the existing schedule and signed by both parties.
  3. Be Flexible. Many of us including attorneys are working remotely. Some families are now faced with the challenge of working while home schooling and dealing with children home all day every day.  If possible support the other parent during this time to allow you both the option of working and supporting the education of your children.
  4. Keep communication neutral. Resist the desire to lash out at your ex at this time. Stay focused on the kids and the logistics of what needs to be done.
  5. Prioritize the Financial Needs of your child. If one parent loses a job or becomes unable to work due to illness or temporary closures this will require a rethinking of support and payment obligations.
  6. Parental contact. In some situations in person contact may be limited. Use Skype, Zoom or Face Time to ensure regular contact with the other parent. It is important for your family.
Close up of stethoscope and gavel on white background

Rights of Teens Regarding Confidentiality under the Mental Health and Developmental Disabilities Confidentiality Act

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Close up of stethoscope and gavel on white background

Many parents who come to our office are surprised to learn that their child, if they are at least 12, must consent to the release of mental health information.
Who has the right to the records protected by the Act? You have the right to copy and inspect your own records if you are age 12 and older. In addition, the following people have the right to inspect and copy the records upon request:
• The guardian of a child under age 12
• The guardian of a recipient who is age 18 or over
• An attorney and guardian ad litem representing a minor age 12 years or older, with a court order
• An agent appointed by a recipient under a Power of Attorney for Health Care or Property
• An attorney-in-fact named in a declaration of preferences or instructions regarding mental health treatment under the Mental Health Declaration Treatment Preference Declaration Act.

Disclosure of Records to Parents of Children Age 12 to 18.

A parent or guardian of a recipient of services who is over 12 but under age 18 may always have access to certain kinds of records. Those are records about the child’s current condition, diagnosis, treatment and medications being provided, and the treatment and services needed.
The parent or guardian may have access to other kinds of mental health or developmental disabilities service records if the child does not object or if the therapist does not feel there is a strong reason to deny the parent access to the records. If the therapist or the child denied access to those records, the parent or guardian may file court action to seek access.

No Fault Dependency/Custody Relinquishment Prevention Act HB5598HFA2

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Teenager boy worried sitting on the floor with a hand on the headSeveral times a year, parents come to our office and ask us to help them relinquish custody to the State in order to get their child needed mental health services. Often these children are adopted, but not always. What they do have in common is severe mental health needs that cannot be met in any other way. These are kids who need a residential placement, intensive therapy, and may be presenting a severe safety risk to their families or themselves. Every case is heartbreaking. From a legal standpoint this has required a legal battle, depending on the county, to prove that the case/parents/kid meets the requirements needed for a no-fault dependency. In one case in McHenry County, a young teenager who was not longer safe at home given his severe violent episodes was to spend months in detention in another county while the State’s Attorney fought to prevent his assessing care and wanted the parent charged with neglect. The Judge agreed that these circumstances merited a finding of a no-fault dependency and he will receive the treatment he needs. There is no happy ending in these cases but access to  needed mental health treatment is the goal.

Hopefully, Illinois law is about to change if the Voluntary Custody Relinquishment Act—HB5598 HFA2 passes. The summary of the bill is as follows:

Status
Status: Engrossed on April 10, 2014 – 50% progress.
Action: 2014-05-13-Added as Alternate Co-Sponsor Sen. Steve Stadelman.

Summary
Amends the Children and Family Services Act. Provides that when a child is voluntarily placed in out-of-home care funded by the Department of Children and Family Services for the purpose of obtaining mental health treatment for the child or treatment for the child’s developmental disability, the Department is prohibited from requesting, recommending, or requiring that a parent terminate his or her parental rights with respect to the child or that a parent or legal guardian transfer legal custody to the Department. Provides that a child voluntarily placed in out-of-home care shall be placed pursuant to a voluntary placement agreement voluntarily entered into by the parents or legal guardian of the child. Provides that for a child to remain in out-of-home care for longer than 180 days, a juvenile court must make a judicial determination within the first 180 of the placement that the placement is in the best interests of the child. Requires the Department to report annually to the General
Assembly concerning (i) the number of children who were voluntarily placed in out-of-home care funded by the Department and (ii) the number of parents or legal guardians who relinquished custody of their children for the purpose of seeking mental health treatment for the child or treatment for the child’s developmental disability. Contains provisions concerning: an interagency agreement between specified State agencies to prevent children from becoming wards of the State and entering the child welfare system solely for the purpose of treatment of a child’s serious mental illness, serious emotional disturbance, or developmental disability; certain protocols that must be included in the interagency agreement; and reporting requirements. Effective immediately.

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