Disgruntled Parents, Intrusive Legal Proceedings, and Overly Aggressive Lawyers:

Transcription

1 November 7, 2014 Disgruntled Parents, Intrusive Legal Proceedings, and Overly Aggressive Lawyers: How Do I Protect Our Staff So They Can Do What They Do Best..Help Our Students! Presented By: Neal E. Takiff 3000 Dundee Road Suite 303 Northbrook, Illinois Fax:

2 Table of Contents 1. School Student Records Act 3 2. Mental Health Subpoenas: Requirements for Attorneys Non-Custodial Parents: What Professionals Need to Know Breaking Confidentiality: Duty to Warn Current Standards for Neglect/Abuse Reporting Because Child is not Receiving Proper Mental Health Care Parents and Experts Observation of Educational Programs Common Mistakes That can Lead to Litigation 51 2

3 SCHOOL STUDENT RECORDS ACT 3

4 COLLECTION, MAINTENANCE, INSPECTION, AND DISSEMINATION OF STUDENT EDUCATIONAL RECORDS FOR REGULAR AND SPECIAL EDUCATION STUDENTS CAVEAT: A school student records policy must comply with the Family Educational Rights and Privacy Act of 1974, the Illinois Student Records Act, and all regulations issued pursuant to such Acts and the rules of the Illinois State Board of Education. This document is an overview of the required contents of a school student records policy and compliance with the requirements stated herein may not satisfy all applicable laws. Therefore, it is advised that a school district consult an attorney before adopting a given student records policy. I. NOTIFICATION Upon initial enrollment or transfer of a student to the school, the school shall notify the student and the student's parents of their rights under the Illinois School Student Records Act, the Regulations thereto and the policies stated herein. II. OFFICIAL STUDENT RECORDS CUSTODIAN Each school shall designate an official records custodian who is responsible for the maintenance, care and security of all school student records, whether or not such student records are in his personal custody or control. The official records custodian shall take all reasonable measures to prevent unauthorized access to or dissemination of school student records. III. MAINTENANCE OF PERMANENT AND TEMPORARY RECORDS A. Information contained in or added to a school student record shall be limited to information which is of clear relevance to the education of the student. Information added to a school student record shall include the name, signature and position of the person who has added such information and date of its entry into the record. B. Each school shall maintain student permanent records and the information contained therein for not less than 60 years after the student has transferred, graduated or otherwise permanently withdrawn from school. C. No school shall maintain any student temporary record or the information contained therein beyond its period of usefulness to the student and the school, and in no case longer than 5 years after the student has transferred, graduated or otherwise permanently withdrawn from the school. Notwithstanding the foregoing, a school may maintain indefinitely anonymous information from student temporary records for authorized research, statistical reporting or planning purposes, provided that no student or parent can be individually identified from the information maintained. 4

5 D. The principal of each school or the person with like responsibilities or his or her designate shall periodically review each student temporary record for verification of entries and elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information. Student records shall be reviewed every four years or upon a student's change in attendance centers, whichever occurs first, to verify entries and to eliminate or correct all out-of-date, misleading, inaccurate, unnecessary or irrelevant information. E. Upon graduation, transfer or permanent of a handicapped student as defined in the School Code and Adm. Code 226, Subpart A (Special Education), psychological evaluations, special education files and other information contained in the student temporary record which may be of continued assistance to the student may, after five years, be transferred to the custody of the parent or to the student if the student has succeeded to the rights of the parents. The school shall explain to the student and the parent the future usefulness of these records. F. Before any school record is destroyed or information deleted therefrom, the parent shall be given reasonable prior notice in accordance with regulations adopted by the State Board and an opportunity to copy the record and the information proposed to be destroyed or deleted. IV. RIGHT TO INSPECT RECORDS A. A parent or any person specifically designated as a representative by a parent shall have the right to inspect and copy all school student permanent and temporary records of that parent's child. A student shall have the right to inspect and copy his or her school student permanent record. B. Whenever access to any person is granted, at the option of either the parent or the school, a qualified professional, who may be a psychologist, counselor or other advisor, and who may be an employee of the school or employed by the parent, may be present to interpret information contained in the student temporary record. C. A parent's or student's request to inspect and copy records, or to allow a specifically designated representative to inspect and copy records, must be granted within a reasonable time, and in no case later than 15 school days after the date of receipt of such request by the official records custodian. D. The school may charge its reasonable costs for the copying of school student records, not to exceed $.35 per page. V. DISCLOSURE OF RECORDS A. No school student records or information contained therein may be released, transferred, disclosed or otherwise disseminated, except as follows: (1) To a parent or student or person specifically designated as a representative by a 5

6 parent; (2) To an employee or official of the school or school district or State Board with current demonstrable educational or administrative interest in the student in furtherance of such interest; (3) To the official records custodian of another school within Illinois or an official with similar responsibilities of a school outside Illinois, in which the student has enrolled, or intends to enroll, upon the request of such official or student; (4) To any person for the purpose of research, statistical reporting or planning, provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records; (5) Pursuant to court order, provided that the parent shall be given prompt written notice upon receipt of such order of the terms of the order, the nature and substance of the information proposed to be released in compliance with such order and an opportunity to inspect and copy the school student record and to challenge their contents pursuant to the procedures set forth in 105 ILCS 10/7; (6) To any person as specifically required by State or federal law; (7) Subject to regulations of the State Board and to 23 Ill.Adm.Code (1996), in connection with an emergency, to appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons; or (8) To any person, with prior specific dated written consent of the parent designating the person to whom the records may be released, provided that at the time any such consent is requested or obtained, the parent shall be advised in writing that he has the right to inspect or copy such records in accordance with 105 ILCS 1015, to challenge their contents in accordance with the procedures set forth at 105 ILCS 10/7, and to limit any such consent to designated records or designated portions of the information contained therein. VI. RELEASE OF RECORDS A. No information may be released pursuant to paragraphs (3) or (6) unless the parent receives prior written notice of the nature and substance of the information proposed to be released, and an opportunity to inspect and copy such records in accordance with 105 ILCS 10/5 and to challenge their contents in accordance with 105 ILCS 10/7. B. A record of any release of information pursuant to this Section must be made and kept as a part of the school student record and subject to the access granted herein. 6

7 A record of any release of information must be made and kept as a part of the school student record and subject to the access granted by 105 ILCS 101/5. Such record of release shall be maintained for the life of the school student records and shall be available only to the parent and the official records custodian. Each record of release shall also include: (1) The nature and substance of the information released; (2) The name and signature of the official records custodian releasing such information; (3) The name of the person requesting such information, the capacity in which such a request has been made, and the purpose of such request; (4) The date of the release; and (5) A copy of any consent to such release. C. The school shall grant access to, or release information from, school student records without parental consent or notification: (1) To an employee or official of the school or school district or the state board of education, provided such employee or official has a current demonstrable educational or administrative interest in the student and the records are in furtherance of such interest; (2) To any person for the purpose of research, statistical reporting, or planning, provided that no student or parent can be identified from the information released and the person to whom the information is released signs an affidavit agreeing to comply with all applicable statutes and rules pertaining to school student records. VII. PROCEDURE FOR CHALLENGE TO RECORDS A. Parents shall have the right to challenge the accuracy, relevance or propriety of any entry in the school student records, exclusive of (I)academic grades of their child and (ii) references to expulsions or out-of-school suspensions, if the challenge is made at the time the student's school student records are forwarded to another school to which the student is transferring. Parents shall be notified of their right to a hearing challenging entries made in the school student records. B. The request for a hearing shall be submitted in writing to the school and shall contain notice of the specific entry or entries to be challenged and the basis for the challenge. C. Each school shall establish administrative procedures for parents to challenge the contents of student records. Such procedures shall include: 7

8 (1) An initial informal conference with the parents, within 15 school days of receipt of the request for a hearing. (2) If the challenge is not resolved by the informal conference, formal procedures shall be initiated. a) A hearing officer, who shall not be employed in the attendance center in which the student is enrolled, shall be appointed by the school. b) The hearing officer shall conduct a hearing within a reasonable time, but no later than 15 days after the informal conference, unless an extension of time is agreed upon by the parents and school officials. The hearing officer shall notify parents and school officials of the time and place of the hearing. have: D. The challenging procedures shall provide for a hearing at which each party shall (1) The right to present evidence and to call witnesses; (2) The right to cross-examine witnesses; (3) The right to counsel; (4) The right to a written statement of any decision and the reasons therefor; (5) The right to appeal an adverse decision to an administrative tribunal or official to be established or designated by the State Board; E. A verbatim record of the hearing shall be made by a tape recorder or a court reporter. A typewritten transcript may be prepared by either party in the event of an appeal of the hearing officer s decision. However, a typewritten transcript is not required in an appeal. F. The written decision of the hearing officer shall, no later than 10 school days after the conclusion of the hearing, be transmitted to the parents and the school district. It shall be based solely on the information presented at the hearing and shall be one of the following: (1) To retain the challenged contents of the student record; (2) To remove the challenged contents of the student record; or (3) To change, clarify or add to the challenged contents of the student record. 8

9 G. Any party shall have the right to appeal the decision of the local hearing officer to the Regional Superintendent within 20 school days after such decision is transmitted. If the parent appeals, the parent shall so inform the school and within 10 school days the school shall forward a transcript of the hearing, a copy of the record entry in question and any other pertinent materials to the Regional Superintendent. The school may initiate an appeal by the same procedures. Upon receipt of such documents, the Regional Superintendent shall examine the documents and record to determine whether the school district s proposed action in regard to the student s record is in compliance with applicable law, make findings and issue a written decision to the parents within 20 school days of the receipt of the appeal documents. If the subject of the appeal involves accuracy, relevancy or propriety of any entry in special education records, the Regional Superintendent should seek advice from special education personnel. H. A final decision under the procedures established pursuant to 105 ILCS 10/7 may be appealed to the Circuit Court of the County in which the school is located. I. Parents shall also have the right to insert in their child's school student record a statement of reasonable length setting forth their position on any disputed information contained in that record. The school shall include a copy of such statement in any subsequent dissemination of the information in dispute. 9

10 MENTAL HEALTH SUBPOENAS 10

11 Subpoenas The Illinois Mental Health and Developmental Disabilities Confidentiality Act ( IMHDDCA ), 740 ILCS 110/1 et seq., restricts service of subpoenas in certain circumstances, without an accompanying court order or written consent. The provision, located at Section 10(d) of the IMHDDCA, states: (d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompanied by a written order issued by a judge or by the written consent under Section 5 of this Act of the person whose records are being sought, authorizing the disclosure of the records or the issuance of the subpoena.... In the absence of the written consent under Section 5 of this Act of the person whose records are being sought, no person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. 740 ILCS 110/10(d) (Emphasis added.) In order to become acquainted with the operation of this section, which serves as a statutory command to all "persons" not to comply with an improperly served subpoena, it is necessary to examine the sections referenced. The IMHDDCA places additional requirements on the procedures to obtain the mandated court order: (d).no such written order shall be issued without written notice of the motion to the recipient and the treatment provider. Prior to issuance of the order, each party or other person entitled to notice shall be permitted an opportunity to be heard pursuant to subsection (b) of this Section. 740 ILCS 110/10(d) (Emphasis added.) Subsection (b) allows either a party or any other interested person to request an in camera 1 review by the court of the records or communications to be disclosed. See 740 ILCS 110/10(b). 1 An in camera review means a preliminary review of the restricted file, by the judge, in his office and off the record. 11

12 If a therapist asserts a privilege on behalf and in the interest of a recipient 2 (even if, against the recipient s wishes), the court may require that the therapist establish that disclosure is not in the recipient s best interests. 740 ILCS 110/10(b). Such a hearing would also be conducted in camera. In addition to the above stated requirements of a subpoena for mental health records, Section 10 requires that every subpoena seeking mental health records must include the following language: No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied by a written court order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought. See 740 ILCS 110/10(d). Accordingly, a subpoena is not valid without incorporating the above statutory language in the document itself. A sample subpoena is included at the end of this memorandum. A. In-Camera Inspection of File: Motion Required Section 10(a)(1) of the IMHDDCA [740 ILCS 110/10(a)(1)] concerns records and communications subpoenaed pursuant to a "civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense." Such disclosures are to be made only after the judge or hearing officer examines the documents in camera and determines: B. What is Relevant? 1. Disclosure is relevant and probative; 2. Disclosure will not be unduly prejudicial or inflammatory; 3. Disclosure is otherwise clearly admissible; 4. Other satisfactory evidence (other than that contained in the confidential record) is "demonstrably unsatisfactory ; and 5. Disclosure is more important to the "interests of substantial justice" than protection from injury to the therapist-recipient relationship or to the recipient or other whom the disclosure is likely to harm. This section goes on to say that no record or communication between a therapist and patient is deemed "relevant" except the fact of treatment, the cost of services and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a compelling need for production of the document, or if the 2 A recipient is a person who is receiving or has received mental health or developmental disabilities services. 740 ILCS 110/2. For purposes of this memorandum, patient and recipient may be used interchangeably. 12

13 proceeding is a criminal proceeding in which insanity is claimed as a defense by the recipient ILCS 110/10(a)(1) (Emphasis added.) In Renzi v. Morrison, an Appellate Court held that a therapist who voluntarily appeared in court and, during testimony, disclosed a psychiatric patient's confidential communications while acting as a witness for a patient's spouse in the divorce proceeding could be held liable for damages. Renzi v. Morrison, 249 Ill. App. 3d 5 (1 st Dist. 1993). Illinois law stipulates that a witness' testimony, when relevant, is still privileged information in judicial proceedings. In Renzi, the therapist offered to testify for the patient s husband. However, the patient objected that such testimony was privileged information and confidential. The trial judge overruled the objection and allowed the testimony. The therapist revealed the patient s communications, psychological test results and offered an opinion on the patient s emotional health. The testimony was significant enough to have "tipped the balance of the scale" in the case, and the patient s husband was awarded temporary custody of the child. The Appellant Court reasoned that the lower court did not appoint, subpoena, or order the therapist to testify but instead the therapist appeared voluntarily and offered testimony. The court held that the therapist s function was to treat the patient, and not to advise the court. C. Death of Patient Section 10(a)(2) concerns civil proceedings in which a document is sought to be introduced after the death of the patient. 740 ILCS 110/10(a)(2). The same procedure regarding an in camera examination by the judge or hearing officer is outlined. Post-death disclosures under this section must also involve the patient's physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party. D. Actions Against Therapist Section 10(a)(3) describes actions by a patient, or by a representative of a deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient. E. Court Ordered Examinations Section 10(a)(4) concerns records and communications "made to or by a therapist in the course of examination ordered by a court." 740 ILCS 110/10(a)(4). These communications may be disclosed in civil, criminal, or administrative proceedings in which the patient is a party or in appropriate pretrial proceedings, provided the court has found that the patient has been adequately and "as effectively as possible" informed before submitting to such examination that such records and communications would not be considered confidential or privileged. Id. However, these records are only admissible as to issues involving the patient's physical or mental condition and only to the extent that they are germane to the proceedings. 3 It is our position that subpoenas received in the course of proceedings pursuant to the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-100 et seq., such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order or a release. 13

14 F. Subpoenas for Mental Health Files - Case Study: Mandziara v. Canulli, 299 Ill. App. 3d 593 (1 st Dist. 1998). A cause of action exists against attorneys who cause subpoenas to be served for mental health records without first obtaining the required court order. 4 This case, decided in September 1998, holds that a mental health patient may sue an attorney for improperly serving a subpoena for mental health records without first obtaining a court order. i. Facts An ex-husband filed an emergency petition seeking to modify child custody. The petition alleged, among other things, that his ex-wife, Mary Mandziara ( Mandziara ), attempted suicide and was hospitalized at Northwest Community Hospital ( Hospital ). In connection with the petition, the husband s attorney, Michael Canulli ( Canulli ), served a subpoena on the Hospital s records custodian, Helen Langer ( Langer ), who appeared in court with the requested records. Langer did not give the records directly to Canulli. Instead, Canulli called Langer as a witness and she gave the records directly to the trial court. The judge immediately and improperly reviewed the records in open court and then questioned Mandziara about her hospitalization and about certain notes in the records. At the end of the hearing the court awarded temporary custody of the children to the ex-husband. Mandziara sued Canulli for violiatng the IMHDDCA by serving a subpoena on the Hospital without first obtaining a court order. 5 The trial court (a different court than the one that conducted the custody hearing) granted summary judgment to Canulli. Canulli filed a petition for sanctions under Illinois Supreme Court Rule 137 which the trial court denied. Canulli appealed the denial of sanctions and Mandziara crossappealed the summary judgment for Canulli. ii. The Holding of the Court Canulli violated the IMHDDCA by failing to obtain a court order before serving a records subpoena on the hospital. 4 It should be noted that Mandziara was decided prior to the requirement that a subpoena for mental health records must be accompanied by either a written court order or written consent of the person whose records are being sought. 5 Initially Mandziara sued the Hospital for releasing the confidential information without a court order. That case was dismissed on summary judgment after a finding that section 10(b) of the Act, cited supra, protected the Hospital from liability: While we do not condone the trial judge s action in commenting upon Mandziara s records in open court, this was beyond the control of Northwest Community Hospital or its record custodian. We find the Hospital did nothing more than follow section 10(b) of the Act in that it provided the court with Mandziara s medical records pursuant to a request from an interested party for the sole purpose of an in camera inspection to determine their relevance in a child custody issue. Hospitals must be advised that Mandziara v. Canulli does not absolve them from liability under the Act. 14

15 iii. Analysis There are strong reasons for maintaining the confidentiality of mental health records. Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual s right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it. The court in Mandziara quoted Section 10 of the IMHDDCA, in pertinent part, as follows: 6 (a) Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, a recipient [of mental health services], and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient s records or communications. *** (b) Before a disclosure is made under subsection (a), any party to the proceeding or another interested person may request an in camera review of the record or communication to be disclosed. The court... conducting the proceeding may hold an in camera review on its own motion... The court... may prevent disclosure or limit disclosure to the extent that other admissible evidence is sufficient to establish the facts in issue. The court... may enter such order as may be necessary in order to protect the confidentiality, privacy, and safety of the recipient... *** (d) No party to any proceeding described under... subsection (a )..., nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. Section I5 of the IMHDDCA also provides, any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief. The appellate court found that Canulli s actions constituted a violation of the Act. The court rejected Canulli s argument that he complied with the legislative intent of ensuring confidentiality by requesting that Langer produce the records to the court for an in camera review. Even assuming Canulli only intended that the documents be reviewed in camera, 7 the IMHDDCA does not allow such disclosure without a court order. The Act is carefully drawn to maintain the confidentiality of mental health records except in specific circumstances The General Assembly has made a strong 6 The below cited language to Section 10 of the IMHDDCA refers to the language at the time this case was heard by the court in Please refer to the enclosed copy of Section 10 of the IMHDDCA for the most current language found in the statute. 7 The court also held that this argument was contradicted by testimony in the record of the trial court hearing in which Canulli requested to be present when the judge reviewed the records. 15

16 statement about the importance of keeping mental health records confidential. If we were to hold Canulli did not violate the Act merely because he did not look at Mandziara s records, we would be rewriting the statute, effectively eroding unmistakable legislative intent under the weight of the judicial fiat Nothing in section 10(d) excuses a court order when the records are first examined by the trial judge. In reaching these conclusions, the court noted that Canulli supposedly had honorable intentions in wanting to protect his client s children, but that these intentions had no bearing on the determination of whether Canulli violated the Act. [M]otives have nothing to do with the legislative judgment that mental health records should not be surrendered as a matter of course. The court also indicated in some cases strict compliance with the statute can be excused, such as in cases where a patient placed her own mental health at issue. In the present case, however, Mandziara did not bring this action. She did not ask to be brought into a courtroom to face a challenge to the custody of her children. The court also concluded that an award of damages could be appropriate pursuant to Section 15 of the Act, and remanded the case to the trial court to determine causation and damages. iv. Conclusion Now, the patient and the provider must be notified by motion well in advance of the court s entry of a properly worded order, that an order is being sought for disclosure of mental health records and communications. Moreover, court orders MUST authorize issuance of the subpoena AND the disclosure of confidential records. Most importantly, the actual subpoena must contain very specific required language to be valid. 16

17 Whitted Takiff + Hansen LLC 3000 Dundee Road, Suite 303 Northbrook, IL Phone: (847) Fax: (847)

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28 Non-Custodial Parents: What Professionals Need to Know 28

29 INTRODUCTION Often times, educational professionals, including teachers, principals, and other school personnel are faced with questions regarding the rights, authority, and responsibility of noncustodial parents. Questions concerning custody, guardianship, and legal relationships of stepparents and grandparents are only a few of the many issues faced by educational professionals on a daily basis. These questions become increasingly important when school personnel have to determine who may sign a release of information, initiate special education services, or sign a waiver. The purpose of this memorandum is to inform the reader as to who has the authority to make such decisions on behalf of a student, using relevant state and federal statutory definitions, as well as providing a tool with which to analyze whether an individual asserting that he or she has authority does, in fact, have that authority. I. Definitions To understand the roles, responsibilities, and authority of a guardian, it is first important to review and decipher the statutory definitions of relevant terms related to this topic. The Illinois Probate Act defines "guardian" as a representative of a minor. 1 A "representative" is defined in the same act as a standby guardian, guardian, and temporary guardian. 2 Both standby guardian and short-term guardian are defined below pursuant to the Probate Act 3 : Standby guardian means: (i) a guardian of the person or estate, or both, of a minor, as appointed by the court under Section , to become effective at a later date under Section Short-term guardian means a guardian of the person of a minor as appointed by a parent of a minor under Section The Juvenile Court Act 4 contains perhaps the best and most comprehensive definitions of terms related to the guardianship of a minor and the authority of non-custodial parents. The following are relevant terms defined in the Juvenile Court Act, 705 ILCS 405/1-3 et seq.: (7) "Emancipated minor" means any minor 16 years of age or over who has been completely or partially emancipated under the Emancipation of Mature Minors Act or under this Act ILCS 5/ ILCS 5/ ILCS 5/1-2-23, et seq ILCS 405/1, et seq. 29

30 (8) "Guardianship of the person" of a minor means duty and authority to act in the best interests of the minor, subject to residual parental rights and responsibilities, to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned with his or her general welfare. It includes but is not necessarily limited to: (a) the authority to consent to marriage, to enlistment in the armed forces of the United States, or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; and to make other decisions of substantial legal significance concerning the minor; (b) the authority and duty of reasonable visitation, except to the extent that these have been limited in the best interests of the minor by court order; (c) the rights and responsibilities of legal custody except where legal custody has been vested in another person or agency; and (d) the power to consent to the adoption of the minor, but only if expressly conferred on the guardian in accordance with Section 2-29, 3-30, or (9) "Legal custody" means the relationship created by an order of court in the best interests of the minor which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any. * * * (11) "Parent" means the father or mother of a child and includes any adoptive parent.... * * * (13) "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation (which may be limited by the court in the best interests of the 30

31 minor as provided in subsection (8)(b) of this Section), the right to consent to adoption, the right to determine the minor's religious affiliation, and the responsibility for his support. 705 ILCS 405/1-3(7)-(9), (11), (13) (Emphasis added.) Who is Considered a Minor and a Parent? Conflicting statutory definitions of the term minor make it difficult to determine who in fact a non-custodial parent has the authority over. Under the Juvenile Court Act, 705 ILCS 405/1-3(10) the term "minor" is defined as follows: (10) "Minor" means a person under the age of 21 years subject to this Act. However, the Child Care Act, 225 ILCS 10/1 et seq., defines "child" as: Child. "Child" means any person under 18 years of age. For purposes of admission to and residence in child care institutions, group homes, and maternity centers, the term also means any person under 21 years of age who is referred by a parent or guardian, including an agency having legal responsibility for the person pursuant to the Juvenile Court Act or the Juvenile Court Act of Termination of care for such persons under 21 years of age shall occur no later than 90 days following completion of a public school secondary education program or the individual's eligibility for such a program. 5 To add to the confusion, the Parental Responsibility Law, 740 ILCS 115/1 et seq., defines "minor" as a person above the age of 11 but not yet The same act also defines a "Legal Guardian" as follows: (1) "Legal guardian" means a person appointed guardian, or given custody, of a minor by a circuit court of the State, but does not include a person appointed guardian, or given custody, of a minor under the Juvenile Court Act or the Juvenile Court Act of (Emphasis added) The Illinois School Code, 105 ILCS 5/1-1 et seq. ( School Code ), however, defines "parent" as "a parent or legal guardian of an enrolled student of an attendance center [for cities ILCS 10/ ILCS 115/2(2) ILCS 115/2(1) 31

32 over 500,000]." 8 However, for homeless children the School Code defines "parent" as "the parent or guardian having legal or physical custody of a child." 9 (Emphasis added.) Then there is the Children s Privacy Protection and Parental Empowerment Act, 325 ILCS 17/1 et seq., which defines parent broadly as a parent, step-parent, or legal guardian. 325 ILCS 17/5. The same Act defines child as a person under the age of 16 and does not include a minor that is emancipated by operation of law. Id. The federal regulations provide guidance as to who is considered a parent for the purposes of the application of the Individuals with Disabilities Education Act, 20 U.S.C et seq., ( IDEA ). Accordingly, the 34 C.F.R provides guidance to schools involving parents in the special educational processes of their children. Section (a) defines parent as: (1) A biological or adoptive parent of a child; (2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; (3) A guardian generally authorized to act a the child s parent, or authorized to make educational decision for the child (but not the State if the child is a ward of the State); (4) An individual acting in the place of biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child s welfare; or (5) A surrogate parent who has been appointed in accordance with or section 639(a)(5) of the Act. Paragraph (b) of Section further states: (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. (2) If a judicial decree or order identifies a specific person or person under paragraphs (a)(1) through (4) of this section to act as the ILCS 5/ ILCS 45/1-5 32

33 parent of a child or to make educational decision on behalf of child, then such person or persons shall be determined to be the parent for purposes of this section. 34 C.F.R (b). See also 20 U.S.C. 1401(23). For the purpose of this memo and educational personnel, it seems that the School Code and IDEA would be most relevant to the determination of who is considered a parent or legal guardian of a student. It is well established that in most circumstances for school purposes, there must be a court order or an actual, legal, or documented connection between the "parent" and the "child." A stepparent, for example, who shows up at a staffing and asserts that he or she has authority over the child, must be questioned. Unless there has been an adoption, courtordered guardianship, or other document that gives the stepparent legal authority, there is no authority. Likewise, in the case of a non-custodial parent who appears at a staffing or in the administrator's office and asserts authority over the child, there must be a validated showing that the individual does in fact have parental authority with regard to the student. It is advisable, that at the very least, school personnel should have a non-custodial parent sign a document certifying that he or she has the authority so claimed. II. Court s Perspective A limited number of cases have discussed the responsibilities of a non-custodial parent in the school and educational context. Most notably, is the Navin vs. Park Ridge School District No. 64 case. 10 This case involves a non-custodial parent that requested a due process hearing under the Individuals with Disabilities Education Act ( IDEA ) for his son. Under the divorce decree, the non-custodial parent was granted the right to access his son s educational records, communicate with school personnel to discuss his son s progress, and participate in school activities. 11 The divorce decree further stated that the custodial parent had the educational decision-making power and had the final decision in a disagreement with her ex-husband about their son s education. 12 In reviewing this case, and ultimately remanding it to the lower court, the Seventh Circuit determined that because the divorce decree provided that the noncustodial parent had at least some right to information regarding the education of his son and the right to be involved, the hearing officer and lower court improperly held that the noncustodial parent had no right to request a due process hearing under the IDEA. The Seventh Circuit cited to the IDEA and its implementing regulations and stated, [a]lthough the IDEA grants rights to parents, and the regulatory definition of parent includes all biological parents, see 34 C.F.R , which implies that a divorced parent retains statutory rights, nothing in the IDEA overrides states allocation of authority as part of a custody determination. 13 Accordingly, it is significant that the Seventh Circuit relied on the language of 10 Navin v. Park Ridge School District 64, 270 F.3d 1147 (7 th Cir. 2001); see also Navin v. Park Ridge School District No. 64, No. 00-C-2735, 2002 WL (N.D. Ill. Apr. 29, 2002) WL , at *5. 12 Id F.3d at 1149 (citing Susan R.M. v. Northeast Independent School District, 818 F.2d 455, 457 (5 th Cir. 1987) (Emphasis added.) See also Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 781 (2 nd Cir. 2002) (agreeing that the extent of a natural parent s rights under the IDEA must be determined with reference to state law. ) 33

34 the court ordered divorce decree itself to determine exactly what rights a non-custodial parent has with regard to a child s education. When remanded to the Northern District of Illinois, District Court Judge Conlon concluded that she could not do anything until a hearing officer had actually made a determination of the non-custodial parent's claims of certain procedural violations and remanded the case down to the hearing officer. 14 The hearing officer was compelled to actually hold a hearing to examine the non-custodial father's complaints and from which, if he is aggrieved, he would then have a right to again appeal to the District Court, and ultimately to the Appellate Court. Based on the precedent set by this case, Illinois hearing officers may have to consider procedural claims made by non-custodial parents where a divorce decree does not completely wipe[ ] out all of [a non-custodial parent s] parental rights as related to his/her child s education. 15 III. What to Ask & What to Do Source of Authority If your school is presented with potential custodial issues, you first need to inquire as to the source of the authority claimed. In a domestic relations matter, you should refer to a "divorce decree" which includes a settlement agreement, joint parenting agreement or court order that outlines the duties and responsibilities of the parties. This is always on file in a court clerk's office. If you are ever in any significant doubt with regard to the validity of the authority claimed by a parent, you always have the option of referring to the court file, which is open to public examination. The general rule of thumb here should be: when in doubt, check the file. It is evident that there is a balancing act involved since it is recognized that educators do not have the responsibility to check every court file to verify the truthfulness of parents and yet should have some documented basis for taking what the parent says at face value and moving forward. In this regard, we suggest a school utilize a certification of authority, which basically calls for a non-custodial parent to sign and certify that he or she is in fact a non-custodial parent of the student and has the authority to make the relevant educational decision(s). Once this document is signed by a so-called non-custodial parent, as indicated in the document, a copy should be forwarded to the custodial parent. A cover letter should accompany the form, indicating to the custodial parent that if the school authorities do not hear from him or her within a week, the form will be accepted as truthful. Additionally, it is advisable that schools require at registration that parents/guardians present specific documentation of parental relation to the student. Such documentation may include the following: Student Birth Certificate AND photo identifications of both parents Court custody documents AND photo identification of custodian(s) Guardianship documents AND photo identification of guardian(s) Residency determination affidavit AND photo identification of residential parent(s) Any emancipation documentation WL , at *5. 15 See Navin, 270 F.3d at

35 Type of Rights Asserted Relevant to schools, non-custodial parent rights are divided into two areas: (1) consent for release of information; and (2) consent for services (in domestic relations, these are usually medical and educational). Release of Information Generally speaking, pursuant to Illinois decisional case law related to the area of mental health, and the Mental Health and Developmental Disabilities Confidentiality Act (IMHDDCA), no distinction is made between a custodial or a noncustodial parent; therefore, the noncustodial parent of a child under 12 years of age has the right to the same flow of information, specifically the right to inspect and copy their child s record or any part thereof, as the custodial parent if he or she requests such in writing. 16 In fact, the First District Illinois Appellate Court stated in its decision that [e]very parent, be they custodial or noncustodial, should be entitled to receive a copy of [medical] report[s] unless it can be demonstrated a parent has no interest in the health, welfare or well-being of a child. 17 It should be noted that where there is a need to block disclosure of information to any parent, whether custodial or noncustodial, and the information is "mental health" in nature, the refusal by any child that is 12 to 18 years of age to sign the form is enough to block the information in the absence of a court order for disclosure. For children below the age of 12, however, as already stated, both noncustodial and custodial parents have the same right to the flow of confidential mental health information. However, with regard to school records, which are governed by the Family Educational Rights and Privacy Act (FERPA) 18, there is no such restriction on the child's age. According to the guidance provided by the U.S. Department of Education on its website: FERPA gives custodial and noncustodial parents alike certain rights with respect to their children's education records, unless a school is provided with evidence that there is a court order or State law that specifically provides to the contrary. Otherwise, both custodial and noncustodial parents have the right to access their children's education records, the right to seek to have the records amended, the right to consent to disclosure of personally identifiable information from the records (except in certain circumstances specified in the FERPA regulations, some of which are discussed below), and the right to file a complaint with the Department. When a student reaches 18 years of age or attends a postsecondary institution, he or she becomes an "eligible student," and all rights under FERPA transfer from the parent to the student. The term "education records" is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution Dymek v. Nyquist, 128 Ill. App. 3d 859, (1 st Dist. 1984). 17 Id. at FERPA, 20 U.S.C. 1232g; 34 CFR Part 99 (Note: Since parochial and private schools at the elementary and secondary levels do not generally receive federal funding, they are not subject to FERPA). 19 See FERPA General Guidance for Parents, ED.gov at < html.>. 35

36 Under the Illinois School Student Records Act, 105 ILCS 10/1 et seq., a parent or a any person designated as a representative by a parent shall have the right to inspect and copy all school student permanent and temporary records of that parent s child. 20 A parent as defined under this Act, and not mentioned above, is a person who is the natural parent of the student or other person who has the primary responsibility for the care and upbringing of the student. 21 Further, all rights accorded to a parent shall become exclusively those of the student upon his/her eighteenth birthday. 22 This Act also acknowledge that access to student records may be limited where there is a order of protection that prohibits a person from inspecting or obtaining school records of a student pursuant to the Illinois Domestic Violence Act of Accordingly, schools should be aware of any orders of protections that are provided to a school by a parent or guardian of a student. Consent to Services With regard to services provided, the court in Nyquist looked to the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101 et seq., and Section 608, which specifically discusses judicial supervision, and differentiates between a custodial and non-custodial parent. This section states: Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds upon motion of the noncustodial parent, that the absence of a specific limitation of the custodian s authority would clearly be contrary to the best interests of the child. 750 ILCS 5/608(a) (Emphasis added.) As such, the issue of consent for services is more complicated. The decisional case law generally requires that the custodial parent authorize services, as in Nyquist. Accordingly, it is important for a school to be aware of what is in the divorce decree and to determine which parent has what rights under such a decree. Specifically, it is important to ask and verify the authority by which a non-custodial parent seeks to authorize initiation, change, or cessation of services. A certificate of authority, as discussed above, may also be used in this instance. However, in cases with serious potential consequences, there is no equal to actually checking the court file. Incarcerated Parents When a parent or guardian has been incarcerated, other issues may need to be considered. Depending on the offense, it is possible that the rights of the parent may have been terminated. If this is the case, then there might be a private guardian appointed or, alternatively, the child may be a ward of the state. If the child is a ward of the state, the state ILCS 10/5(a) ILCS 10/2(g). 22 Id ILCS 10/5(a). 36