What to Do When
Your Child Has To Go
to Court
Amy J. Goetz, Esq.
School Law Center, LLC
Jean M. Brandl, Esq.
Heltzer and Houghtaling, P.A.
Michael Carano
Law Clerk, School Law Center, LLC
7/29/2013
2013 IDEA Leadership
Conference
Washington, D.C.
WORKING WITH FAMILIES
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Adolescents: An Overview
O Adolescents’ brains
are different from
adults’ brains!
O Even when fully
capable in other
areas, adolescents
cannot reason as
well as adults
Inside the Teen Brain | PBS
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Disabilities and Behavior
O Disabilities often are manifested in
behaviors
O Children with disabilities may need
behavioral supports in order to follow the
rules
O These behaviors may cause children to have
more interaction with school discipline and
the police
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Connection Between
Schools
and the Police
O Schools increasingly
have police presence
O From estimated
9,446 in 1997 to
17,000 in 2010
(National
Association of
School Resource
Officers)
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Connection Between
Schools
and the Police
O Police may question,
cite, or even arrest
students at school
O 58% more likely for
police to be called
into schools whose
student body is
majority students of
color (Advancement
Project)
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Connection Between
Schools and the Police
O Theriot Study (2009)
O Compared arrest rates at 13 schools with an
SRO to those at 15 schools without an SRO
O Having an SRO in the building predicted a
decrease in arrests for most serious offenses
like assault and weapons
O Having an SRO in the building predicted an
increase in arrests for most minor, subjective
offenses like disorderly conduct
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Connection Between
Schools
and the Police
O School-to-prison
pipeline - funneling
of students from
schools to juvenile
system through
referrals
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Connection Between
Schools
and the Police
O African-American students with disabilities
four times as likely to end up in correctional
facilities than white counterparts (ACLU)
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Involvement in Juvenile
System as Education Law
Violation
O Most juvenile courts
are responsive to
well pled motions to
dismiss or continue
for dismissal
Juvenile Justice and Education
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Involvement in Juvenile
System as Education Law
Violation
O IDEA does not prohibit referrals to law
enforcement by the school
O Schools must send special education and
disciplinary records to appropriate
authorities when making a referral
Juvenile Justice and Education
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Involvement in Juvenile
System as Education Law
Violation
O Denial of Free Appropriate Public Education
(FAPE)
O Schools cannot use juvenile system to avoid
compliance under IDEA. Cabot School
District, 29 IDELR 300 (SEA AR 1998)
O Lack of behavioral supports may result in
denial of FAPE
O Simultaneous due process hearing to
challenge special education violations
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Involvement in Juvenile
System as Education Law
Violation
O Returns the problem to its source
O Taps the public entity with primary
responsibility to provide a solution
O Most successful with school referrals where
no community charges
O Public safety is best served by bringing
schools into compliance with IDEA duties
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What to Do When Your
Child Has Been Arrested
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O This presentation focuses on special
considerations of students with disabilities,
although the many of the rules and
principles are of general applicability to all
children (and under some state laws, those
adults under guardianship or
conservatorship).
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Student Legal Rights
O Miranda
O Right to Remain Silent
O Prepare your child to ALWAYS SAY NO
O Warn the school not to interrogate child (no
teeth)
O Right to an Attorney
O Hire attorney before questioning if possible
O Never agree to interrogation without attorney
Your Rights When Interacting With Police
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Student Legal Rights
O Miranda
O Must be “custodial” i.e. NOT FREE TO
LEAVE
O School officials and probation officers do
not qualify
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Parents Should
O Go to the police station (or school) as soon
as you find out your child is detained or
questioned
O Provide information about your child’s
disability to the police, the prosecutor, and
the public defender
Reaching Out to Parents of Youth with Disabilities
in the Juvenile Justice System
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Parents Should
O Explain how your child’s disability affects
his/her behavior, understanding, and ability
to process information
Reaching Out to Parents of Youth with Disabilities
in the Juvenile Justice System
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Parents’ and Guardians’
Legal Rights
O Seeing Your Child
O Request to see your
child immediately
O Tell your child not to
answer questions
without an attorney
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Parents’ and Guardians’
Legal Rights
O Seeing Your Child
O Tell police and authorities they cannot speak
with your child until your child speaks to a
lawyer
O Get your attorney to call and say that
authorities cannot speak to your child until he
or she is present
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Parents’ and Guardians’
Legal Rights
O Seeing Your Child
O Some states grant parents/guardians the
right to see their child
O Check your state statutes and rules!
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Parents’ and Guardians’
Legal Rights
O Lawyer for Your Child (at public expense for
all criminal charges)
O Parents can hire separate counsel
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Parents’ and Guardians’
Legal Rights
O You Have a Right to Know the Charges
O Ask if you are not told
O Knowing the charges helps you know what
type of attorney you need
O Knowing also helps to identify inappropriate
questions
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Parents’ and Guardians’
Legal Rights
O Being Present During Questioning
O Request to be present during questioning
O Some states grant parents/guardians this right
O Check your state statutes and rules!
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Parents’ and Guardians’
Legal Rights
O Parents and
guardians have a
right to Participate in
Court Proceedings
O Check your state
rules on if parents
or guardians are
required to attend
any proceedings
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Documentation
O Keep all papers given to you!
O Write down details of conversations
O Who you talked to, when, what time, who else
was there, what was said
O Be sure to get the badge numbers of any
police officers with whom you interact
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Documentation
O Request information
about your child’s
interaction with
police (police
reports, citations,
narratives)
O If you have
questions, always
ask before signing
any paperwork!
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Tips for Parents
O Your child is probably
afraid throughout the
process
O Fear can make kids
act unpredictably
O Even false
confessions
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Tips for Parents
O “Sometimes innocent kids get picked up
doing non-delinquent things they shouldn’t
have been doing, and think they won’t get in
trouble if they just tell the police or their
parent what they want to hear.”
O Juvenile Justice Information Exchange
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Tips for Parents
O Meet with a lawyer in your state to find out
parent and guardian rights
O Some rights vary from state to state
O Important to know rights you have in your
state!
O Since many cases are time sensitive do so as
early on in the process as possible
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How to Prepare
Families and Youth
for Court
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Understanding the Juvenile
Court Process
O Who Goes to Juvenile
Court?
Confidential: Only
the minor and
parents or guardians
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Understanding the Juvenile
Court Process
O Status vs. Delinquent Offenses
O Status: acts that would not be crimes if
adults committed them
O Ex: truancy, curfew, running away, drinking
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Understanding the Juvenile
Court Process
O Status vs. Delinquent Offenses
O Delinquent: offenses that would be criminal
acts if anyone committed them
O Ex: burglary, assault
Ten Things You Should Know if Your Child Gets Arrested
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Understanding the Juvenile
Court Process
O Role of Child’s Attorney
O Child’s Advocate
O Negotiate with prosecution, probation and
judge
O Try the case if necessary
O Obtain the best disposition for the child
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Understanding the Juvenile
Court Process
O Role of Prosecutor
O To convict the child of a crime
O To punish/rehabilitate the child
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Understanding the Juvenile
Court Process
O Role of Judge
O To determine guilt or innocence at trial
O To accept a plea agreement
O To punish/rehabilitate the child
O To protect the public safety
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Understanding the Juvenile
Court Process
O Role of Probation Officer
O Make disposition or pretrial
recommendations to the judge
O Supervise child after court is over
O Access to Interpreter
O Absolute
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What to Expect
O Goal to keep kids out of custody
O Attempt to resolve placement at first hearing
O Child and parent/guardian need to dress up
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What to Expect
O Child absolutely entitled to Court Trial (No
jury trials for minors)
O Right to remain silent OR testify
O Right to cross-examine State witnesses
O Right to present witnesses and evidence
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What to Expect
O Plea agreement
O Attorney negotiates with prosecution
O Agree upon disposition
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Possible Outcomes
O Dismissal
O Diversion
O Informal probation
O Formal probation
O Incarceration
O Treatment
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Disposition
O Best resolution for the child
O Custody time only if necessary
O Restitution
O Community Service
O Fine
O Treatment of any type
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Disposition
O Up to judge – negotiated by attorney
O Make sure to follow the three “R’s” –
Remorse, Responsibility and
Rehabilitation
O Character letters from family, religious
leaders, teachers, etc. very helpful
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What to Do When a
Youth Faces Imminent
Incarceration
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Family Support
O Support Your Child!
O Find out the visitation guidelines for the
detention facility
O Continue to support your child throughout the
incarceration
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Family Support
O Support Yourself!
O Take care of yourself
O Join organizations for families of incarcerated
youth
O Ranging from discussion-based support groups
to community action groups
O Example: Families for Books Not Bars (California)
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Special Education Services
O Youths with disabilities ARE entitled to
special education services in state and local
juvenile and adult correctional facilities*. 34
C.F.R. § 300.2
O Must follow the IEP from your child’s school
O Be a vocal advocate for your child by insisting
on special education services!
* State law can exempt 18-21 year olds without
prior identification or IEP
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Special Education Services
O Provide
documentation of
the child’s disability
to all important
decision-makers
O Child’s attorney,
judge, probation
officer, correctional
facility, etc.
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Medical Treatment
O Tell detention
officers about your
child’s medical and
mental health needs
O Medication: Bring
the medication
container and the
doctor’s phone
number to detention
officers
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Transitioning Back to the
Community
O “Effective transitional programs increase the
likelihood of reenrollment in school,
graduation from high school, and successful
employment.”
O From the Courthouse to the Schoolhouse:
Making Successful Transitions
O Family and community support is important!
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Transitioning Back to the
Community
O Help with the transition back to school, into
a GED program, or into the workforce
O Ask for a prerelease visit to the school from
the detention facility
O Meet with staff at your child’s school before
he or she returns to school
O Ask the school to create a Behavioral
Intervention Plan for the IEP
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Transitioning Back to the
Community
O Help with the transition back to school, into
a GED program, or into the workforce
O Get your child involved in law-related
education to connect experiences to
responsible citizenship
O Teens, Crime, and the Community
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Transitioning Back to the
Community
O Seek out mentorship opportunities for your
child
O As a mentor: Volunteering to read to
elementary school students in your area
O As a mentee: Nation-wide Mentoring
Programs
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Transitioning Back to the
Community
O Encourage your child and your family to
utilize mental health services if needed
O Example: Functional Family Therapy (NYC)
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Collateral Consequences
in Court Decisions and
Their Impact on a Youth’s
Later Life
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Who Can See Records?
O Courts
O Law Enforcement
O Probation departments in most states
O Bureau of Criminal Apprehension
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Who Can See Records
O State Dept of Human Services for
background checks
O Employers/public if felony charged while
youth 16 or 17
O Employers/public if certified as an adult at
14 or older
O Landlords
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How Long are Records
Kept?
O Courts and BCA officially keep juvenile
records until youth turns 28
O Exceptions for gross misdemeanors and
felonies if person commits felony as an adult
O Law enforcement agencies have no limit on
how long to keep the records
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Possibility of Expungement
O Expungement is at the discretion of the
court as to when the judge thinks it is
advisable
O Check your state’s rules on expungement
O Often very difficult to obtain, so do not rely on
this as a remedy at the time of admitting an
offense, especially if it is a felony
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Other Impacts
O Adjudications of delinquency should have no
impact on a juvenile’s life as an adult, BUT…
O Can prevent juvenile from working as nurse,
foster parent, etc.
O Can affect minor’s parents’ access to public
housing or foster care placement
O Can affect later ability to obtain housing
O Can prevent minor’s military service
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Other Impacts
O Can prevent minor’s work in law enforcement
O If crime of violence, minor can never own or
use a firearm
O Can require sex offender registration
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Other Impacts
O Can be required to
give a DNA sample
O Can affect right to
vote
O Can affect
immigration rights
O Can affect student
financial aid
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Alternatives to Adjudication
O Diversion
O Treatment
O Restitution
O Community Service
O Diploma or GED
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Questions or
Comments?
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Additional Resources
O Access to Counsel|Department of Justice
O Campaign for Youth Justice Family Resource
Center
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Amy J. Goetz
Attorney at Law
Toni Haraldsen
Law Clerk
Michael Carano
Law Clerk
452 Selby Avenue
Second Floor East
St. Paul, Minnesota 55102
651.222.6288
agoetz@schoollawcenter.com
DISCLAIMER: This presentation and any accompanying materials are intended as an introduction to the
legal rights of students in Minnesota. Nothing in this presentation should be considered legal advice. No
attorney client relationship is created through this presentation.
Jean M. Brandl
Attorney at Law
413 N Wacouta St.
Suite 430
St Paul, MN 55101
651.330.8508
jean@heltzerhoughtaling.com
DISCLAIMER: This presentation and any accompanying materials are intended as an introduction to the
legal rights of students in Minnesota. Nothing in this presentation should be considered legal advice. No
attorney client relationship is created through this presentation.