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Bar Briefs January 09
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January 2009 Issue • Volume 27• Number 07
 
In This Issue:

Good News on the Horizon: Oil
Companies Discover New
Quantities of Reasonable Priced
Gasoline

By Arthur A. Garton, MCBA President

Circuit Court Corner
By Keith R. Beasley, 16th Circuit Court
Administrator


Dwayne B v Granholm: What
Does It Mean For Your Client

By Nicole M. Smithson &
Serah E. Wiedenhoefer

Representing The Mentally
Ill Parent in Juvenile Court in
Neglect or Abuse Proceedings

By Maryanne Spryszak-Hanna,
Law Offices of Maryanne Spryszak-Hanna


Useful Community Resources of
Court Appointed Counsel

By Serah E. Wiedenhoefer,
Law Offices of Serah E. Wiedenhoefer

Rule Changes You Need to Know
About, FAQ's & Other Questions & Updates

By Stephen Becker, Becker & Lundquist, PLC

Anwsers to School Law Questions
By Christine Piatkowski, Christine Piatkowski PLC















Good News on the Horizon: Oil Companies Discover New
Quantities of Reasonable Priced Gasoline

By Arthur A. Garton, MCBA President
Everyone - with the exception of the rich oil executives - has felt the pinch of the outrageously high cost of oil over the last seven years. As gas prices have systematically risen from a $1.08 per gallon on 9/11/2001 to over $4.50 per gallon as recently as July of this year, many have wondered if the oil companies were not simply putting the gouge to the American consumer. In justifying the price increases the oil company chieftains have explained, and so testified before Congress, that there is no profiteering taking place and that these prices are justified due to the increased cost in the price of oil. Notwithstanding that the oil companies were reporting record profits, several fold of what they were in years passed, the oil chieftains insisted that this was all good. They assured us that the prices being charged were, very reasonable and that the price of gas should be in the $6.00 to $7.00 range. Knowing these individuals to be as trustworthy as they are, I couldn’t help but wonder if the days of reasonably priced gasoline had gone the way of the dinosaurs, never to be seen again.

I had pretty much accepted the validity of the big oil companies’ explanations for what I perceived as outrageous gasoline prices. After all, years of drilling for new oil resulted in finding only $2.50, then $3.50 and ultimately $4.50 per gallon gasoline. No matter how hard the oil companies tried, and we can certainly believe them because they are so trustworthy, they simply were unable to find any reasonably priced oil.

On the day I wrote this article, while driving down the street, I noticed gas at under $1.50 per gallon. I felt so bad that I stopped in the gas station and offered to donate some money to the oil companies because of how bad they must be doing. It was then that the gas station owner informed me that just recently the oil companies had made a significant find – $1.50 gasoline! What I don’t understand is how the oil executives had the ability to distinguish between gasoline at $1.50 per gallon and the higher priced stuff that they have been jamming down our throats for the last several years. I guess that’s why they make the big bucks.
Enjoy this while it lasts.

While the coming year promises to be difficult and presents monumental challenges, remember adversity is simply disguised opportunity. Many will choose to sit back and criticize, complain and condemn, but we as lawyers are blessed with having the ability, opportunity and obligation of confronting injustice and unfairness everyday. If it was easy, anyone could do it. We are up to the challenge because we are lawyers. Let’s make the most of it in everything we say and do. Remember, it’s not what happens but how you react to what happens that matters. Success is nothing more than getting up one more time than you’ve been knocked down. Be kinder than necessary because everyone you meet is fighting some kind of battle. Best wishes in the coming year!

Happy Holidays!!!!

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Circuit Court Corner
By Keith R. Beasley, 16th Circuit Court Administrator

Appointment of Indigent Counsel

A new Local Administrative Order on the appointment of indigent counsel in our Court has been signed by Chief Judge Caretti and approved by the Michigan Supreme Court. All those on our indigent counsel list are expected to be familiar with and follow the Order. The full LAO is available on the Court’s Web site on our ‘Publications’ page.
There are a couple of changes indigent counsel and applicants to become indigent counsel should be aware of. As before, those on the criminal lists, must have their ‘principal office’ located in Macomb County. It is now defined as your ‘actual physical office.’ We are not solely relying on the State Bar listed office anymore – there were a number of problems with that. One example is that women attorneys who work out of their homes did not want to disclose those addresses to the world for safety reasons. Another was the tendency for ‘mail drop’ addresses to be listed with the Bar. For those who do not have a traditional office, a process has been created so that they can apply to Judicial Aide for dispensation from the requirement, followed by a written appeal to the Chief Judge, if they are denied selection for appointment on this basis.

The LAO tightens the payment process in order to deal with tardy billings from attorneys. First of all, it directs that attorneys use the Request for Payment form provided by Judicial Aide. Other forms do not give Judicial Aide the information needed to efficiently review the billings. It receives a huge volume of billings. Secondly, timeliness of billings had to be addressed. We thank the vast majority of indigent counsel who cooperate and timely submit their billings. However, some do not cooperate. In fact some submit bills years after the proceedings have concluded. One recently submitted billings for cases completed in 1999. The LAO spells out the timelines for the major types of cases – please see it for the specifics.

The submission of billings before sentencing in criminal cases is especially important since the only practical opportunity to seek reimbursement for defense costs under People v Dunbar is at sentencing. Timely billing is needed for that process. Without a valid assessment, all hope of reimbursement is lost. This is not fair to the Macomb taxpayers, who shoulder an annual expense of nearly $5 million. The LAO discourages chronic tardiness by creating a mechanism for reducing compensation for bills that are not timely.

In the juvenile area, additional sub-lists have been created. Attorneys must demonstrate success in delinquency proceedings before being appointed to the neglect proceeding list. Attorneys must have specified experience before receiving appellate proceedings, Saturday on-call assignments, parental by-pass matters or diversion cases (see the LAO for details).

There are other changes you should review, please see the order on our Web page. Copies are also available at the Bar office.
Dwayne B. v Granholm: What Does That Mean For Your Clients
By Heide Sharp, Burgess & Sharp PLLC
Every practitioner of juvenile law should be aware that Michigan recently reached a settlement agreement affecting the case practices of the Department of Human Services (DHS).i While the extent of Dwayne B.’s impact is not yet known, this article provides practitioners with background information and highlights of the settlement. The entire agreement is available online at www.michigan.gov/dhs.Background On August 8, 2006, Children’s Rights, a national advocacy group, initiated a class action lawsuit on behalf of all children who are or will be in the foster care custody of DHS against the Governor, the Director of DHS, the Chief Deputy Director of DHS Operations, and the Deputy Director of DHS Children’s Services in the Federal District Court for the Eastern District of Michigan.
According to the five-count complaint, Michigan has been and continues to: violate plaintiffs’ substantive due process rights by failing to protect them from harm while in its foster care custody; violate plaintiffs’ rights under the First, Ninth, and Fourteenth Amendments by depriving them of a child-parent or child-sibling family relationship; violate the plaintiffs’ rights under the Adoption Assistance and Child Welfare Act of 1980; violate the plaintiffs’ procedural due process rights by failing to obtain entitlements owed to them under federal and state law; breach its federal contractual obligations to plaintiffs as third party beneficiaries under the state plans relating to funding under Titles IV-B and IV-E of the Social Security Act.

About a year after the case began, the court appointed the Children’s Research Center (CRC) as an independent expert and ordered it to conduct a case record review.ii The purpose of CRC’s review was to collect data based on actual case practices in Michigan in order to address the core questions raised by the lawsuit.iii These questions included whether Michigan: 1) failed to provide plaintiffs with safe, appropriate, and stable placements; 2) failed to provide plaintiffs with the services to keep them safe and prevent them from deteriorating physically and psychologically while in care; 3) failed to provide plaintiffs with timely and appropriate services to ensure that they are either safely reunited with their parents or “promptly freed for adoption” and placed in permanent homes; and 4) failed to provide plaintiffs with the support they need to maintain their family relationships.iv

The parties agreed that CRC would randomly select cases for study from the fourteen counties servicing more than 70% of Michigan’s roughly 19,000 foster children.v CRC ultimately reported on 460 cases. Forty-six of these cases are from Macomb County.vi

CRC’s voluminous expert report contains dozens of statistics and observations concerning the experiences of the studied children, their biological and foster parents, and their DHS workers. The following points regarding policy and practices at the time of the class action lawsuit may be of particular interest to practitioners:

Michigan policy requires workers to meet with foster children twice within their first thirty days of coming into care—one of these visits must occur at the placement. DHS met this standard in 23.4% of the pertinent sample cases, and no documented DHS visits occurred in 31.6% of the pertinent sample cases;

Similarly, Michigan policy requires workers to meet with each parent twice within the first thirty days of their children’s removal from the home—and one of these visits must occur at the parent’s home.ix In 53.2% of pertinent sample cases, DHS did not have any documented contact with parents during the first thirty days.x Michigan standards also require workers to visit parents in their homes every three months;xi

The report notes that “Working with parents is obviously critical to reunification efforts. Before returning a child, workers need to know if the family met case planning goals and that safety issues that led to removal have been resolved[;]”

Policy and legislation requires that DHS try to place siblings together. In the event of separation, DHS is mandated to maintain sibling relationships through visitation, phone contact, and letter writing.xiii Only 34.6% of the eligible sample children were placed with all of their siblings all of the time, and only 36% of files for the sample children not placed with siblings had any documentation showing DHS’s efforts to keep the siblings together;xiv
59.4% of the sample children received all the required medical examinations and 49.2% of the eligible sample children received all the required dental examinations;

49.3% of the sample children with an identified special education need were receiving special education services;
Policy requires that foster care notify adoption services within fourteen days of termination, but it took foster care seventy-two days on average to notify adoption services. Additionally, an average of 482 days elapsed after the termination of the sample parents’ rights before the sample children were adopted;

The report also recommends that Michigan begin concurrent planning in cases where termination or long-term out-of-home care is possible. Under a concurrent planning scheme, the parties would develop an alternative plan while DHS provides reunification services. At the time of the report, thirty-eight states and the District of Columbia had legislation concerning concurrent planning; and
The report found that “In total, need identification, service referrals, and service participation are relative areas of strength for the Michigan foster care system. Needs are systematically identified and multiple service referrals are made on behalf of both children and families served by DHS.”xix

Following the filing of CRC’s report, the parties’ agreed to resolve the lawsuit. On October 24, 2008, the court entered the parties’ settlement agreement as a consent decree and order of the court.Settlement Agreement The settlement agreement is extensive and very detailed, covering a wide array of issues from DHS’s organizational structure to standards for placing children. More specifically, it provides for changes to Michigan’s foster care child welfare system to address the system’s failure to adequately protect children and provide necessary services. The settlement sets mandatory standards and outcome measures for DHS. Additionally, it articulates specific terms and requirements regarding Child Protective Services, child placement, reunification, and caseworker caseloads and training. The following provisions are illustrative of the changes contained in the settlement:
Caseloads: The settlement gradually reduces caseloads by providing specific dates and caseload numbers as bench marks for reaching the ultimate caseload goal. By October 2013, the caseload for each foster care workers will be limited to no more than fifteen children.xx The settlement limits caseloads for adoption and CPS workers in a similar fashion. Thus, by October 2013, adoption workers will have caseloads of no more than fifteen children.xxi CPS workers who investigate allegations of abuse or neglect will have caseloads of no more than twelve open cases, while CPS workers assigned to providing ongoing services will have caseloads of no more than seventeen families.xxii

Worker Contact: The settlement specifies the number of contacts the foster care worker is to have with children and their parents. By October 2011, workers must visit foster children a minimum of two times during the child’s first month of placement and a minimum of one time per month thereafter.xxiii In cases where the goal is to return the child home, the assigned foster care worker must have face-to-face contacts with the parents according to a specified schedule. This requirement is to be implemented by October, 2009.xxiv

Sibling Placement and Visitation: The settlement requires DHS to take all reasonable steps to assure that siblings who are not placed together have monthly visits. Reasonable exceptions to this requirement are contained in the settlement and include cases in which the visit may be harmful to one or more of the siblings or the children are placed with relatives who live more than fifty miles apart.xxv

Relative/Fictive Kin Placements: The settlement mandates that all placements must be licensed. This includes placement with relatives, who previously were exempted from the licensing requirement. No child can be place in an unlicensed foster home unless such a placement is ordered by the court. xxvi In accordance with this mandate, all current unlicensed relative caregivers must complete the licensing procedure by September 30, 2010. xxvii Licensing for relative caregivers can be waived, but only where exceptional circumstances exist such that it is in the child’s best interest to be placed with an unlicensed relative.xxviii These exceptional circumstances must be documented in the foster care worker’s file and approved by a DHS official. If a placement is not approved for licensing or a waiver is not granted, the child must be moved to another placement within thirty days. xxixConclusion Although the settlement seems to impose a great deal of new requirements on DHS, it primarily asks DHS to follow previously stated policies to protect children’s physical and mental well-being while they are in care. And while the settlement compels DHS to act quickly to reunite families, practitioners must be mindful that it is equally true that it seeks to ensure that termination and adoption, when necessary, occur quickly as well. ni Dwayne B. v Granholm, ED Mich No 2:06-CV-13548.

ii CRC is a division of the National Council on Crime and Delinquency, a Wisconsin nonprofit organization.
iii Children’s Research Center, Analysis of Case Practice and Compliance with Standards in Michigan Foster Care i (2008).
iv CRC, supra note 3, at i.
v CRC, supra note 3, at i-ii.
vi CRC, supra note 3, at 11.
vii CRC, supra note 3, at 41, citing CFF 722-6, CFB 2007-006.
viii CRC, supra note 3, at 42.
ix CRC, supra note 3, at 43, citing CFF 722-6, CFB 2007-006.
x CRC, supra note 3, at 44.
xi CRC, supra note 3, at 48.
xii CRC, supra note 3, at 50.
xiii CRC, supra note 3, at 26, citing CFF 772-8C and RFF 67.
xiv CRC, supra note 3, at 27.
xv CRC, supra note 3, at 30.
xvi CRC, supra note 3, at 31.
xvii CRC, supra note 3, at xii.
xviii CRC, supra note 3, at 59.
xix CRC, supra note 3, at 89.
xx Settlement Agreement, VI.D.3., 17.
xxi Settlement Agreement, VI.D.4.
xxii Settlement Agreement, VI.D.5.
xxiii Settlement Agreement, VII.H.1., 31.
xxiv Settlement Agreement, VII.H.2., 31.
xxv Settlement Agreement, VII.H.4., 32.
xxvi Settlement Agreement, VIII.B.7.h., 42.
xxvii Settlement Agreement, VIII.B.7.i., 42.


Nicole M. Smithson is of counsel with the Law Offices of Sherriee L. Detzler, PLLC. She practices in the areas of juvenile law, criminal defense, family law, and probate. She is licensed to practice in Michigan, Ohio, and Arizona.
Serah E.Wiedenhoefer is a solo practitioner who practices primarily in the areas of juvenile law, criminal defense, and family law. She is licensed to practice in Michigan and Kentucky
.

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Representing the Mentally Ill Parent in Juvenile Court in Neglect and Abuse Proceedings
By Maryanne Spryzak-Hanna, Law Offices of Maryanne Spryszak-Hanna PC
Those of us who regularly practice in the Juvenile Division of the Circuit Court representing parents in abuse or neglect petitions can pretty much tell our clients what to expect after a plea or trial finding the parent responsible for abuse or neglect of the child: there will be a psychological evaluation and a drug test/evaluation along with a review of the home and the parents' lifestyles. Based upon that, the Parent Agency Agreement will require the parent to achieve various additional goals: attend parenting classes, attend anger management class, attend domestic violence class or couples therapy and, perhaps most importantly: participate in therapy with or without medication.
Often the most difficult client is the mentally ill client. This client is more likely than not to self medicate with narcotics and/or alcohol which can lead to problems with the law and possible failure to pass urine screens. The house may be inappropriate or a mess and no legitimate source of income will be on the horizon.

Typically, this client is more likely than others to blame the attorney for his/her failure to progress and achieve return home of the children. No it's not your fault, but often with some extra assistance from counsel, the client can begin to recognize that he/she has a mental illness and can take steps to stabilize their illness and even achieve return home of the children.

It is most important to remember that the mentally ill client is not stupid. In fact many are really smart and may challenge you on more than one occasion. S/He will have a darn good memory. Therefore, don't promise something you will not be able to deliver on. S/He will remind you of your shortcomings and may not trust you again. Don't promise a certain out come in the court. That will be all s/he will hear and not adjust his/her behavior.
Most important of all, do not ever tell a mentally ill client that s/he has to put up with the side effects of a certain medication. Today there is a plethora of medications for every diagnosis and sticking a client with a medication that leaves him/her feeling extremely tired, dry mouthed, overstimulated or unable to sleep will merely encourage him/her to stop taking it at the earliest opportunity. Keep reminding him/her that there is something out there that will help. This may mean extra e-mails or phone calls to DHS to prod them in this regard. Enlist a parent or sibling to be the client's medical advocate to help in that regard.???????????

Similarly, some clients may stop attending therapy because the therapist does not "trust" them or believe them or listen to them. Don't minimize this. Encourage the client to keep attending, but assist in trying to change the therapist. If therapy is to succeed, both the client and the therapist must be equally invested in the outcome. Sometimes the choice of therapists is a poor fit. Often the same provider can switch your client to another therapist. If that doesn't work, pressure must be brought to bear on the DHS for another referral to a different provider.
You as an attorney for the parent also need to make contact with the therapist. First, be clear to your client about signing a release so that the therapist will speak to you. Second, ask the therapist to send you a copy of any report sent to the DHS worker so that you know what will be presented to court. This is especially important when it comes to missed appointments. DHS is most unhappy even with a single miss. Most therapists are OK with one or two misses as long as they are not simply no shows and are made up. Third, it is probably most important to know that your client is making progress and/or benefitting from the therapy and the coordinated classes. The best way to do this is to ask that the therapist note this, provided that it is true.

Finally, realize that both you and the client are in this for the long haul. Legislation encourages early resolution of matters involving juveniles. Sadly, it often takes longer just to get the proper medication to the parent. It may take more time to get the parent to open up to the therapist and start making real progress in therapy. That is why it is important to have a therapist willing to go to court for the parent, especially if the therapist and DHS appear to disagree as to whether your client is progressing or benefitting from therapy. It does your client no good to have a sympathetic therapist who is unwilling to come to court to convince the court that termination is not right in this instance.

Finally you may have to remind the Court that, legislation notwithstanding, a year may not be long enough to show a benefit from therapy. At least one Court of Appeals allows for a two year wait. In re: Boursaw, 239 Mich App 161 (1998) rev'd on other grounds 462Mich 341 (2000).? Be prepared to argue this as a motion prior to trial and in closing. With luck and sympathy, more time to improve may be allowed to your client. Sometimes, this is the best we lawyers can do in these cases.

Maryanne Spryszak-Hanna is a sole practitioner. Her firm, Law Offices of Maryanne Spryszak-Hanna PC is a general practice firm, with emphasis on criminal defense, family and probate law. She has a BA from Wayne State University and a JD from University of Detroit School of Law (back when it was just the University of Detroit School of Law).

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Rule Changes You Need to Know About, FAQ's & Other Questions & Updates
By Stephen Becker, Becker & Lundquist PLC
By the time you read this article, Local Administrative Order 2008-1 will be in full force and effect and repeat the old Local Administrative ?Order 2006-3. Local Administrative Order 2008-1 governs the selection, appointment, and compensation of counsel who represent indigent parties in the Macomb County Circuit Court pursuant to MCR 8.123. What relevance does this have to the juvenile law practitioner? In addition to adult felony cases, Rule 2008-1 governs indigent attorney appointments for juvenile cases. There are several changes from the previous rule that the juvenile law practitioner should be aware of. Below are some FAQ’s submitted to Paula Verticchio, Chief of Judicial Aide, by the MCBA and its Juvenile Law Committee regarding these rule changes.

Q: If I was on the list prior to the rule change, am I still on the list?
A: Yes.

Q: How do I apply to be on the juvenile court appointed list?
A: Fill out and submit an application. The application is available at Judicial Aide or on the Macomb County Circuit Court’s website at: http://www.macombcountymi.gov/circuitcourt/Publications.htm. Submit the completed form to Judicial Aide.

Q: The new order states that one must have “substantial and relevant” experience representing juveniles, including experience in Macomb County Circuit Court. How can I demonstrate that?
A: The application asks the applicant to list specific instances or examples of experience, such as trials, previous representations, second chairs, or seminars attended.

Q: How often does the approval committee meet to determine who is to be on or off the list?
A: The committee attempts to meet quarterly, but only if the need arises.

Q: Can I get approval to be on the list at any other time or way?
A: No, one must be approved by the committee for admission on the list. There are no exceptions.

Q: How does one make a complaint against an attorney on the list and can anyone make that complaint (i.e. DHS, case workers, parent/guardians, etc.)?
A: Any person may make a complaint. The complaint must be submitted in writing and filed with Judicial Aide.

Q: If a complaint is filed, how does the complaint process work?
A: The attorney is contacted immediately and an attempt is made to resolve the matter. If the matter can’t be resolved, the committee is notified of the violation. The Chief Judge ultimately make the final determination in regards to the outcome.

Q: The new order states that I must be an attorney for a minimum of one year. Does that mean from the date of receiving my P number or my swearing in to practice law?
A: One year from the attorney getting sworn in to practice, not the date he received his P number.

Q: Is there any appeal process if I’m denied and I believe I’m qualified to serve?
A: One can appeal to the Chief Judge within 30 days of the denial. The appeal must be in writing and there are no oral arguments allowed. The appeal must be filed with Judicial Aide and it will be forwarded to the Chief Judge for final decision. The complete rule is on MacombBar.org.

As always, if you need any assistance or questions in billing procedures, the staff at Judicial Aide are there to guide you.

As you will note, there are many other rule changes included within this order regarding both criminal and juvenile appointments, including compensation of counsel. By being familiar with this new order and some of its changes, you can be better prepared to face the world and, most importantly, not be scolded, embarrassed, or losing out on your hard earned money.

Additionally, as always, I encourage anyone who would like to join the Juvenile Law Committee (or learn more about the committee), to join us for an upcoming meeting. In addition, if there are any questions or concerns regarding the practice of law or this new order, feel free to stop by one of the following meetings of the Juvenile Law Committee. The committee is always looking for participation of any and all of the people involved in the process. Remember, one can not change things by merely standing silently on the sidelines, but only if you get involved in the process! n2008-2009 MCBA Juvenile Committee Meeting DatesTuesday, January 20, 2009

Tuesday, February 10, 2009
Tuesday, March10, 2009
Tuesday, April 14, 2009
Tuesday, May 12, 2009
Tuesday, June 9, 2009
Tuesday, July 14, 2009
Tuesday, August 11, 2009
Tuesday, September 8, 2009
Tuesday, October 13, 2009
Tuesday, November 10, 2009
Tuesday, December 8, 2009

* Meetings will be held from 12:00 p.m. to 1:00 p.m. in a room designated and posted by the MCBA.** Meeting dates subject to change or additions based upon necessity*** Subcommittee dates to be in addition to regular meeting dates.

Stephen Becker is a Partner in Becker & Lundquist, PLC. He practices in the areas of criminal, civil, bankruptcy and family law. Stephen is also an avid Michigan State fan and is looking forward to a New Year’s Day bowl game, unlike those folks in Ann Arbor. GO STATE!!!!


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Answers to School Law Questions
Robert Q. Ramanelli & Jay C. Boger, Kienbaum Opperwall Hardy & Pelton PLC
?Many clients look to attorneys for assistance related to their child’s educational needs. These needs can encompass a variety of different issues. Some examples of situations which may involve school law include, but are not limited to, the following: cases in which parents seek assistance for children with disabilities, school truancy matters, suspension/expulsion issues, private school placement, charter school enrollment, Schools of Choice, school record disputes, transportation concerns, sexual and peer harassment, delinquency matters occurring on school property, personal injury and tort claims, teacher-union disputes, First Amendment violations, discrimination, retaliation, birth trauma/neurological impairment, public policy concerns, public meetings, slander/libel and reports alleging abuse/neglect. Below are some questions and answers that address several common school law concerns.

Q. Are there any advantages to hiring an attorney who specializes in school law versus using family counsel?
A. Depending upon the factual basis, there may be significant benefits to utilizing an attorney with experience in the area of educational law. For example, attorneys regularly practicing in this area of law are familiar with strategy, case law, state and federal laws and mandates, policies, procedures, opposing counsel, and the reviewing of school paperwork. School law attorneys may also be helpful as “of counsel” in certain situations where juveniles are charged with crimes pertaining to school property or offenses, abuse/neglect cases, personal injury/tort claims, special education needs, etc. In certain actions, attorneys that do not regularly handle school law matters will be presumed to have the knowledge base required for educational cases. It may be difficult to reverse school decisions and/or appeal a matter if procedures are not followed properly or legal advice is not sound. There may also be long term implications which affect the course of a student’s school needs based upon short term educational decisions made by laypersons and/or inexperienced counsel.

Q. Does a child with special needs automatically qualify for special education?A. No. In order to qualify for special education services, a student must be identified as eligible for special education services pursuant to state and federal laws.

Q. What does “FAPE” mean?A. The acronym “FAPE” stands for “free appropriate public education”. FAPE is defined as :
Special education and related services that-
(a) are provided at public expense, under public supervision and direction, and without charge;
(b) Meet the standards of the State educational agency, including the requirements of this part;
(c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(d) Are provided in conformity with an Individualized Education Program (IEP) that meets the requirements of 34 C.F.R §§ 300.320-300.324.

Q. If a child does not qualify for special education services, is he/she eligible to receive any assistance from the local school?
A. The local school may make accommodations or modifications to a child’s
educational program on either an informal or formal basis. Behavior intervention plans and plans created as a result of eligibility for services under Section 504 of the Rehabilitation Act of 1973 are common examples of formal plans provided to support regular education students.

Q. When a child is placed into a licensed foster care placement or, alternatively,
into the home of a relative by the Department of Human Services, is the child allowed to attend the school in the district in which the child now resides?
A. Yes. A child placed under the direction of a child-placing agency is considered to be a resident for educational purposes of the school district where the home in which the child is living is located.

Q. During a Child Protective Services Investigation, can a child protection interview take place at the school?A. Yes. The Child Protection Law requires the Department of Human Services to notify parents or guardians when a child is interviewed in school. Temporary delay is permitted if the notice would compromise the safety of the child or the child’s siblings, or the integrity of the investigation.

Q. Are parents entitled access to their children’s educational records?A. Yes. Parents are entitled to review and inspect any school records or documents
which relate to their enrolled children. These rights may be transferred to the student when the student reaches eighteen years of age. The school may charge a nominal fee to obtain copies of the records.

Q. What does “Schools of Choice” mean?A. Schools of Choice programs allow individual school boards the option to
participate in enrolling students from anywhere within the intermediate school district. The student’s home school district is not required to provide permission for the enrollment and the receiving school is allowed to obtain the funding typically provided to the resident school for these students. School districts that utilize Schools of Choice programs provide parents with an opportunity to apply for positions in receiving schools. If there are more applications than positions, a district must use a lottery system to determine who will be enrolled.

Q.What is the age range for compulsory school attendance?A. In Michigan, every parent, guardian, or other person having control and charge of a child from the age of six to sixteen shall send that child to a public school during the school year. Some exceptions exist for private or parochial schools, home schooling, etc.

Q. Does a parent have the right to home school their child?A. A parent does have the right to home school their child. The state cannot use truancy laws to punish parents who home school their children. A state may establish minimum standards for home schooling education. It is best practice to check with the State Department of Education for its current home schooling requirements.

Q. Can a school district require parents to place children on medication as a pre-condition to attending school?A. No. A public school cannot mandate that a parent place a child on medication as a pre-condition to allowing that child to attend school. The decision whether or not to medicate a student is a decision to be made by the parents/legal guardian and their private physician.

Q. Are special education students treated differently than regular education students for disciplinary purposes?A. Yes. Special education students are subject to special rules and regulations for disciplinary purposes. Depending upon the length of a school suspension, a special education student may continue to receive educational services during the suspension or expulsion. If the reason for discipline involves a weapon, or if the student poses a danger to himself/herself or others, then different rules apply for suspending or removing a special education student from school.

Q. Is there a difference between a suspension and an expulsion?A. A suspension is typically defined as an exclusion from school and school activities for a period of ten days or less. A student may also be suspended pending an investigation of the student’s conduct. An expulsion can take either of two forms. In the first, the Board of Education may take action to permanently remove a student from school. In the second, the Superintendent can expel a student for up to 180 days per most school policies.

Q. Can a parent be represented by an attorney if their child is being permanently expelled from school?A. Yes. As in any case, it is beneficial to have legal counsel from the moment a parent is notified about an expulsion. Police officers acting as school liaisons may attempt to file charges against a juvenile for offenses that occur in the school setting. Additionally, if there is a chance that a long term expulsion may be prevented, the attorney can begin working with the school immediately. Parents also need to be aware that they possess certain rights prior to engaging in the expulsion process. The expulsion process involves legal and procedural mandates that should be adhered to by the parents and their counsel, since long-term consequences may result from attempting to disregard the expulsion and/or improperly contesting it.

Q. Can a school district revoke a student’s bus privileges?A. Maybe. If the school district determines that a child is posing a danger to himself/herself or others, the school may offer alternative transportation options or request that a parent provide transportation for a period of time. In order to prevent removal from the bus, there are some tactics that may be implemented to preserve the transportation; however, each case will need to be assessed on an individual basis to determine whether it is possible to prevent the removal.

Christine Piatkowski is an Attorney at Law in Brighton, Michigan. She is licensed to practice law in both Michigan and Illinois. Ms. Piatkowski has her own general practice law firm that includes particular concentration in the areas of juvenile law and school law. She is also involved with a number of private and public agencies and committees devoted to children’s law and school law matters.


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