Dear Fran:
I've been going over Patricia's hearing in my mind these past few days but haven't been able to put anything down in writing except the article I did. I've been trying to help her get into some sort of housing for the winter and that has me side-tracked. I thought I'd start to write down what I remember in a few emails to you just to get me started and then I can eventually work that into some sort of report later. The Hearing Officer used a tape recorder for the meeting so there is an audio version of this meeting floating around somewhere. I'm sure a transcript can be obtained in the future.
Bruce Bjornlund, the Hearing Officer, wasn't going to let Patricia and I start the hearing with an opening prayer so we did anyway. I read the following and the only 3 people to say 'amen' after were myself, Patricia and Neil Randall.
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OPENING PRAYER
Jesus Christ, our Lord and Savior, we asked that you place your hand upon the shoulder of our sister, Patricia O’Dell, and stand with her throughout the following proceedings today. We ask that you give her courage to confront her accusers, understanding of their will to deny her and her children the peace and tranquillity they need to continue on their educational journey, and grant her the ability to forgive them their oppressive sins against her.
Jesus Christ, our Lord and Savior, we ask that you grant each and everyone in this room the wisdom to seek your guidance in these matters and that they, each and everyone, shall not falter to tell the truth as they testify before You and others here today.
Jesus Christ, our Lord and Savior, we seek your comfort for those who are here today who are still healing from these whirlwind times. Some of us here today felt the effects of a tyrant a half a world away on September 11th but Patricia has been hounded by a different tyranny for many months now. Grant them all peace in their hearts and the ability to know when to support others, not tear them down. May they know the value of life’s little wonders and simple pleasures and may they make every moment with their children and loved ones count to the fullest.
In His name and in His glory,
Amen
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Bjornlund wasn't going to allow us to have anyone place their hand on the Bible either when they swore in so only Patricia, Neil and myself did that. The Bible sat on the table the entire time in plain view and I also placed a small American flag on the table since there were none in sight in the room or anywhere else in that building that I could see.
Right off I questioned David Wolk's signature on the hearing notice letter sent to Patricia and dated October 5, 2001. It was illegible and looked forged to me so I questioned its authenticity. I told Bjornlund it appeared to look like the same sort of writing I'd been seeing on the 6:00 o'clock news on the bombed out walls in Afghanistan. After much debate Barbara Crippen finally spoke up and vouched for Wolk and that it was indeed his signature.
Bjornlund proceeded to tell Patricia that the 'burden of proof' was on her to establish she was able to provide her children with a minimum course of study. I presented Bjornlund with a copy of Patricia's course of study and a copy of her parental report that she sent in with her re-enrollment. The course of study goes far beyond the minimum and that seemed to be a problem for those in the room. They were concerned that Patricia's 'standards' and 'expectations' for her children were too high! Say what?!
Others in the room were Natalie Casco (DOE), Barbara Crippen (DOE), Neil Randall (state rep), Graig Kelly (DOE), Charles Hurt (Supervisory Union lawyer) and eventually Chris Bonavita (spec.ed.), Karl Anderson (lawyer), Kathleen Kelz (spec.ed.), and Pam Spinney (DOE). Lori Ableson (spec. ed.) was on speaker-phone.
Patricia was able to tell her side of the story first. She was good. She was darn good and didn't appear to be intimidated by all the suits. She'd encountered many of these people before through the special education program and seem determined not to let them railroad her and her children anymore. She'd caught so many of them in their lies that she even confronted them about it. Patricia also made is clear to them she was not happy with the mistreatment she and her children have received from these people in the past.
Chris Bonavita was the first to testify for the state. She came into the room with her lawyer, Karl Anderson. She wouldn't swear in with her hand on the Bible so Patricia and I left the room during her testimony in protest. After Bonavita testified we came back into the room and Bjornlund asked if we had any questions for her. Patricia asked Bonavita how long she had Patricia's children in her special ed. classes at Fair Haven. Evidently Bonavita only had the children for 11 school days but could make a judgment based on that short amount of time. Since we had made our point about the swearing in we stayed for the remaining testimonies.
Crippen kept insisting that Patricia agreed to have her children assessed this summer but never followed through. According to Crippen the assessment was to be a part of Patricia's re-enrollment. I have to reread the agreement that was signed back in April but Patricia and I were under the impression that this 'assessment' was something 'separate' from any regular re-enrollment notification to the DOE. Patricia also testified on the 20th that she signed the agreement with Eric Parker 'under duress'! This was a thorn in the side for Crippen and Bjornlund. They accused me of 'coaching' Patricia into saying it but we already had that term in writing prior to this meeting and Crippen demanded that Patricia tell her what the word meant. After some discussion Patricia was allowed to look the word up. This created another thorn for Crippen.
Crippen had a cow when I tried to help Patricia find the word in the dictionary. They accused me of 'coaching' her again. That is when Patricia ripped Crippen a new one and told her the state was of accusing her of not knowing how to read or write so how did Crippen expect her to find the word in the dictionary? When Crippen denied that, we showed Crippen AND Bjornlund the hearing letter and page 2 that read:
"Patricia O'Dell is listed as the sole instructor for the home study program. During the years that your children attended public school, public school staff observed that Mrs. O'Dell was limited in her own abilities to read and write. In addition, the home study curricula that Mrs. O'Dell submitted for the 2000-2001 school year were replete with spelling, punctuation and grammatical errors. Accordingly, I have a significant doubt as to your ability to provide instruction in a minimum course of study, as defined in 16 V.S.A. Section 906."
Patricia also ripped them about the high school diploma that she received from Mt. Anthony Union High School. If she is so stupid then why did they give her a diploma. She was under the impression she was smart enough for them to give her the diploma but if they think she's too stupid to homeschool with only a high school diploma then evidently they failed in teaching her anything. Patricia questioned them about the requirements for a parent to homeschool their own children. There are none. A parent doesn't even need a high school diploma in Vermont to homeschool their children.
Patricia found the word 'duress' in the dictionary and agreed that she definitely signed the agreement with Eric Parker 'under duress'. She understood every word in the definition including the word 'coerced'.
Patricia explained to Bjornlund that there were several reasons she never completed this assessment. Number one, there was never any set date that this assessment had to be completed by.
Number two, the state mandated she use a certified public school teacher or a private school teacher. Patricia could not find one who was willing to perform the assessments for free since she was living on a fixed income and the state made no mention of paying for these services.
Number three, the state mandated that Patricia have the children assessed at certain locations. Patricia and her family have been virtually homeless since their home in Fair Haven burned to the ground 3 days after Christmas last year (2000). They have been forced to live with relatives, friends or at motels. Patricia has also been working on selling her destroyed property in Fair Haven through a Realtor and using that income to purchase a new lot in S. Newfane, VT. The new property has taken up much of her time and income in preparation for winter. Besides needing to have the present structure torn down after years of vandalism she and her husband are in the process of getting another mobile home onto the property. The new structure needs to be winterized and readied for the family. Meanwhile, the new school district and local government keeps trying to place her under their thumbs.
Crippen accused Patricia of receiving all kinds of income from supporters and other homeschoolers and that she had no excuse for not being able to afford the assessments. I explained to Crippen that any money that was donated for Patricia's cause was used for specific things such as food, clothing, travel, and homeschooling materials. Many other donations came in the form of clothing, food, toys and homeschooling materials. Eric Parker's services were provided to Patricia at no expense. I'm not sure who picked up the tab on that. Patricia also pointed out to Crippen and the others that in case they hadn't noticed Eric Parker was NOT there in the room with her. She told them her impression of this 'assessment agreement' was intended to be a 'quick fix' for the DOE and Mr. Parker. The media and public were bearing down on the DOE at the time and they simply wanted an easy way out of the hole they dug for themselves. Patricia's case is so similar to Karen Maple's case in so many ways it was easy to see why the DOE was panicking.
Jumping ahead just a bit, Bjornlund claims he has never heard of 'Kerry' (Karen) Maple or her case. I find that hard to believe unless he just moved here or he is completely sheltered from the news in this state. Even Crippen and Casco feigned ignorance of Karen Maple's Supreme Court ruling in May 2000. I found that all quite amazing.
It was also explained to those in the room that Patricia had the good sense to acquire (free) secretarial services to help her with her enrollments, other correspondence and homeschooling. None of them seemed happy with the fact that others were willing to help Patricia and her children in any way they can.
Kathleen Kelz, Chris Bonavita and Lori Anderson have all NOT seen Patricia's children in over one and a half years. Natalie Casco, Barbara Crippen and Pam Spinney have NEVER met Patricia's children. They have no idea how far Patricia's children have progressed with homeschooling in the past two years. Patricia has had to do lots of remedial work with the older ones that were in school. These people complained about the sporadic attendance record and behavior problems of Patricia's children while they attended school. It was brought to their attention that Patricia's children have a perfect attendance record in their homeschool and that none of them have any signs of behavior problems in their homeschool.
Kathleen Kelz, a special ed teacher at Molly Stark Elementary School in Bennington, testified she taught Patricia's son, Andrew, phonics. Kathy Kelz also testified that she had Patricia's daughter, Samantha, in her special education classes and that she was teaching Samantha. That came as a surprise to Patricia since Samantha was never on any IEP and Patricia never agreed to place Samantha on any IEP or in special education classes. Somehow I suspect that what Kelz did is illegal.
Natalie Casco was asked by me what the consequences would be if Patricia decides not to re-enroll her children in the state's home study program. Casco's response was that Patricia would be considered truant. I asked Casco to read the definition of 'truant' in the dictionary. The definition is: 'a pupil who stays away from school without permission'. I pointed out to Casco that Patricia's children have her permission to stay away from the public school. Even my children have my permission to stay away from public school. Casco also informed us that the DOE has no control over truancy, its a matter that belongs to the local schools.
At some point in our discussions Bjornlund was shocked to find out that my two children sitting in on this meeting were NOT enrolled with the DOE. He said something to the effect that I just told him this on tape and that I must be breaking some sort of law. Natalie has known for many years about this but like she said, it is a local matter. I honestly think the DOE throws the truancy issue into the parents' faces as an intimidation tactic. In Patricia's case it isn't working and that frustrates them because it is one less way of controlling her. My suspicion is that Patricia's children are still on the school roles somewhere and unless the DOE can get Patricia to agree to keeping them on IEP's and forcing the other two onto IEP's those schools will either have to pay back the state and federal (and possibly Medicaid) funds and will no longer receive the thousands of dollars for them.
Finally folks, we can lay to rest any rumor that Casco never registered her children with the DOE when she was homeschooling. Casco testified under oath that her children have ALWAYS been enrolled with the Home Study program from the time she started homeschooling them to the time she stopped homeschooling them, including before she started working at the DOE.
Casco and Crippen were unaware of any state or federal law that requires the schools to offer special ed services but parents weren't required to accept them. Seems to me that issue was argued before the VT Supreme Court in the Karen Maple case. They claimed they weren't familiar with Karen's case before the Supreme Court. Of course, when we tried to ask questions of Casco (especially Casco) or the others Crippen was jumping in all over the place objecting to this and objecting to that. When Patricia tried to object to any thing being said about her that appeared to be lies Bjornlund kept shutting her up and told her she had to wait. There was definitely a double standard going on in that room.
It was difficult to try to establish anything with the constant objections and interruptions by Crippen and Bjornlund but we managed to get a few questions in and show that Patricia was providing what the state called a minimum course of study and more. We tried to establish that Casco has a tendency to base the decisions she makes at the DOE on her personal feelings. You'd thought she'd seen a ghost when I asked her if she knew who Jill and Alan Hayes were. Casco had informed us that the decision to allow a homeschool enrollment to go through was entirely hers. That is quite a bit of power for just one person to have especially when that person has been known to sign her name to letters ostracizing homeschooling families within her own church and sending religious materials through the DOE mailings to homeschoolers.
Spinney, the DOE special ed 'triple E' monitor, testified that 'learning impairment' is the equivalent of 'mental retardation' and that learning impairments NEVER go away. She also said that IQ's can NEVER be raised. She diagnosed Patricia's children as mentally retarded by simply reading the IEP's, psychological reports and assessments and because she believes EVERYTHING that is written in them. She has NEVER met Patricia's children and had only met Patricia at this meeting. Lori Ableson later testified over the phone that 'learning impairment' was NOT the equivalent of 'mental retardation'. Now I ask you, do either one of them know what they are talking about?
At times when you just sat and listened to these folks talking among themselves you could swear they were speaking an entirely different language with all their edu-babble and educationese lingo. It was amazing to see how locked into their own little world of forced public schooling they were. They had no clue that there is a whole other 'real world' out there, one that has a Constitution that protects people and parents like Patricia from people like them.
At the end of the meeting Patricia wanted a statement read to the group and placed on record. I'll include it here but I must tell you that about half way through this statement Bjornlund once again interrupted (I assumed because he didn't like what he was hearing--I'm not sure but he may have mentioned his wife is a school teacher) me and wouldn't let me finish. That is when Patricia proceeded to chime in and rip Bjornlund a new one. She went up one side and down the other of all of them in the room. She was great! I simply sat back and let her rip. She must have gone on for about five minutes. When she finished Bjornlund asked if I wanted to continue. I told him I thought Patricia did a pretty good job of it and there was nothing I could possibly add to what she just said. I placed the statement back into my folder. The following is the signed statement that was also distributed to the press after the meeting:
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20 November 2001
Patricia O’Dell/News Conference
Spokesperson/Cindy Wade, Home Education Advocate
Statement:
As you stand in the rotunda of the Thomas Jefferson Memorial in Washington DC one is inspired by his words:
“I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”
Patricia O’Dell too has vowed to fight those who would deny her children an education.
It is with a brave heart that Patricia O’Dell confronts her accusers who have chosen to deny her her constitutional and God-given parental rights. It is with determination that Patricia O’Dell will go forward and homeschool her children without the interference of Vermont Department of Education tyrants who have failed her children enormously.
Unlike hundreds of other non-compliant homeschooling parents here in the state of Vermont, Patricia has given the Vermont Department of Education and its public schools the courtesy of enrolling her children in the state’s home study program. With this enrollment however, she has discovered that certain individuals within the Department of Education and the public schools have accepted her signature on the enrollment notification as permission to abuse their authority to the extent of harassment, torment and persecution of Patricia and her children.
Patricia O’Dell will no longer tolerate being singled out for harassment and abuse by those working at the Department of Education Home Study Unit and by those working as special education instructors in the public schools. She will no longer tolerate the abuse and persecution of public school administrators and will do every thing in her power to protect her children from these people.
Patricia O’Dell will work diligently to keep her constitutional and God-given parental rights in tact while she continues to homeschool her four children without interference from state and school officials.
Patricia O’Dell hereby officially withdraws her consent for any school district or supervisory union in which her children reside, in the state of Vermont, to submit claims to Medicaid for payment of cost for any special education and/or related services. She understands that it is her right to withdraw her consent at any time in writing and has done so with letters to the Newfane Elementary School, Leland and Gray High School and the Vermont Department of Education.
Patricia O’Dell will not accept any special education services for her children at this time and has the right to do so according to law. She cannot be forced to accept those services which her children are eligible to receive.
Patricia O’Dell has signed and submitted copies of the Hatch Amendment Letter to members of both schools in her district opting out of any and all instruction by members of those schools.
This summer Patricia O’Dell was required, under duress, to meet the demands of the Department of Education to have her children assessed by a certified public school teacher or a private school teacher in order to gain favor of a hearing officer and DOE lawyer, Barbara Crippen. These were demands that Patricia was expected to pay for out of pocket and demands that the Department of Education knew full well Patricia would have difficulty meeting. These demands were also requirements that are not required of other homeschoolers. Patricia continues to search for someone suitable to perform the assessments but meanwhile re-enrolled, in good faith, with the Department of Education Home Study Unit because she knows of their penchant for truancy accusations.
Patricia O’Dell would like to see the investigation into the possibility that her children’s former, and possibly present, school has accepted and used state and federal moneys earmarked for her children although her children have not been in attendance of that school for quite some time. She would also like to see an investigation into whether her former school has accepted Medicaid moneys AND school budget moneys for the same purpose.
Patricia O’Dell seeks a written and public apology from Education Commissioner David Wolk, Department of Education Lawyer Barbara Crippen, ALL members of the Vermont Department of Education’s Home Study Unit including Natalie Casco, members of the Fair Haven Elementary School and from members of the Molly Stark Elementary School for their false accusations against her and for their mistreatment of her and her children.
(signed by Patricia O'Dell)
Patricia O’Dell News Conference 20 November 2001
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As I remember details about the meeting I will send them along. Feel free to share this information with others if you like.
Meanwhile, Patricia and her family are trying to get their new home established. They are in need of some help and could use some winter clothes for the children, food (especially canned & dry goods), household supplies such as furniture, bedding, dishes, appliances, lumber and building materials, wood for a woodstove, educational toys and homeschooling supplies, ESPECIALLY A COMPUTER AND EDUCATIONAL PROGRAMS FOR IT. The children range from 7 years to 15 years (Andrew 15, Samantha 13, Annie 10 and Elizabeth 7).
Patricia new mailing address is: Patricia O'Dell, P.O.Box 63, E. Dover, VT 05341.
If anyone would like to donate a few dollars here and there in a Christmas card for her please feel free to send it along. Please remember they lost their home to a fire a year ago only 3 days after Christmas and the children witnessed it all, including the loss of their pets. Patricia is determined not to go on welfare and has managed to keep from having mortgage payments on her new property. Quite an accomplishment if you ask me. Think of the money we all spend on interest.
God Bless and stay well.
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http://groups.yahoo.com/group/VT-homeschooling/message/510
Doing a little backtracking tonight after finding more info to post on the Patricia O'Dell case. This link will take you to Vermont homeschooling chat room where you'll find the Final Brief to Hearing Officer Bruce Bjornlund of the VT DOE from Patricia O'Dell dated November 28, 2001.
Here it is in full in case you can't link (Patricia was railroaded big time by this guy and his cronies):
Final Brief to:
Hearing Officer, Bruce Bjornlund,
c/o VT DOE, 120 State St., Montpelier, VT 05620-2501
c/o VT DOE, 120 State St., Montpelier, VT 05620-2501
From: Patricia O’Dell, P.O. Box 63, E. Dover, VT 05341
Date: November 28, 2001
You are being asked by the State of Vermont to pass a moral judgment on my fitness as a home schooling parent to home school my own children. You are not being asked to make a judgment based on non-compliance with the home study laws. The opposite is true. The state has been out of compliance with the state’s own home school laws. It is my understanding that your ruling must be based on fact and law, not based on emotions and innuendos.
The home school laws do not require that a parent have a certain level of education or to have any special skills. The DOE has to admit that at the hearing. The DOE is trying to create a new law that does not exist in current law. However, since I am a high school graduate from the state of Vermont, if the state is concerned about my fitness as a Vermont high school graduate, they will have to admit that their own public school system is terribly deficient. If they are claiming that I cannot read and write properly, then how come I was awarded a high school diploma from a state approved public high school. They should be the ones on trial, not me. The law states that (E) If the Commissioner has information that creates a significant doubt about whether a home study program can or will provide a minimum course of study for a student who has not yet enrolled, the Commissioner shall call a hearing. I find it necessary to point out that this law only applies to students who are not yet enrolled. According to what constitutes a legal enrollment, the home study laws are also very specific. According to the home study regulations, my children were lawfully enrolled in the home study program as I will outline below. The law should not be twisted to fit the whims of the DOE.
It was not until February of last year, 2001, that the DOE attempted to disrupt my home schooling privileges based on the personal bias of Vermont public school personnel. This was beyond the scope of the DOE’s authority as established by the home schools regulations. The rules clearly state that “if the Commissioner has information that creates a significant doubt about whether a home study course can or will provide a minimum course of study for a student who has not yet been enrolled, the Commissioner may call a hearing. At the hearing, the home study program shall establish that it has complied with this section and will provide the student with a minimum course of study”. However before such a hearing can be called, there are certain time restrictions imposed by law on the state. Since I properly provided the minimum course of study to the appropriate authorities at the DOE. They had only two choices to respond at that time.
Notice of home study program, Section 166b (B):
Within 14 days of receiving an enrollment notice, the commissioner or designee shall send the home study program a written acknowledgment of receipt. The acknowledgment shall include a determination:
1) either that the enrollment notice is complete and no further information notice is needed, or specifically identifying information required under subsection (a) which is missing. If information is missing, the home study program shall provide the additional information in writing within 14 business days; and
2) either that the child may be enrolled 45 days after the enrollment notice was received. At any time before the child may be enrolled, the Commissioner may order such a hearing may be held. After notice of such a hearing us received, the child shall not be enrolled.
Within 14 days of receiving an enrollment notice, the commissioner or designee shall send the home study program a written acknowledgment of receipt. The acknowledgment shall include a determination:
1) either that the enrollment notice is complete and no further information notice is needed, or specifically identifying information required under subsection (a) which is missing. If information is missing, the home study program shall provide the additional information in writing within 14 business days; and
2) either that the child may be enrolled 45 days after the enrollment notice was received. At any time before the child may be enrolled, the Commissioner may order such a hearing may be held. After notice of such a hearing us received, the child shall not be enrolled.
In other words, the Commissioner or his designee was obligated to call for this hearing before the 45 day time period elapsed after receiving my home school enrollment notice with attached minimum course of study. That did not happen.
I had sent the enrollment notice of my intent to home school my children and outlined the minimum course of study. Fourteen days passed and I did not receive a written acknowledgment or notice that information in my notice was incomplete. More than forty-five calendar days also passed from the time the DOE received my enrollment notice. I received no written notice from the Commissioner or his designee prior to that 45 calendar period ending alleging that the Commissioner (or his designee) had significant doubts that my home study program would not provide the minimum course of study to my children. There was no written notice within the time restrictions in which the DOE must enter an objection.
In fact, 6 months passed before the Commissioner’s designee, Doug Walker, sent a letter to me, in February of 2001, and stated that they had concerns over my personal ability to home school, ignoring the fact that there are no requirements in the home school law that states I must meet certain requirement to qualify as a home school parent. They are trying to create new rules as they go. The second concern was regarding my children’s special education needs. Furthermore, I was under duress to satisfy the personal bias of the DOE and not the legal requirement of the home study program regulations. I hastily and regrettably entered into an agreement, which I now view as illegal and discriminatory as well. Also, no deadline was mentioned in the agreement as written by the DOE to complete an assessment. The state went beyond the law and narrowed the “progress assessment” options for annual assessment of each home study student. I believe this is another illegal action by the DOE. There are many options allowed in which home schooled students may be assessed under the home study regulations. Nothing in the home study regulations gives the DOE this authority or oversight to demand which type of assessment I must chose. Therefore, I submit that the agreement I signed under duress was illegal anyway and false pretenses.
These are the assessment options listed that a home study parent can choose from, under the Vermont Home Study regulations:
1) a certified Vermont teacher
2) a teacher from an approved public school
3) a teacher advisory service report from a publisher of a commercial curriculum together with a portfolio of the student’s work
4) a report prepared by the parents or the student’s instructor together with a portfolio of the student’s work
5) the complete results of a standardized achievement test administered by a qualified person
6) the complete results of a standardized achievement test administered by an approved Vermont school, at the option of the school or district.
2) a teacher from an approved public school
3) a teacher advisory service report from a publisher of a commercial curriculum together with a portfolio of the student’s work
4) a report prepared by the parents or the student’s instructor together with a portfolio of the student’s work
5) the complete results of a standardized achievement test administered by a qualified person
6) the complete results of a standardized achievement test administered by an approved Vermont school, at the option of the school or district.
Despite my misgivings, I had made a good faith effort to comply with the agreement, but I unable to find a certified Vermont teacher or private school teacher to assess my children who would not charge a fee I could afford. I thought under the state and federal laws, my children were/are to receive a FREE and appropriate education. If the assessments are not FREE and are mandated by the state, then I shouldn’t have to pay for them.
You may also take note, that when my children attended public school, they were allowed to take ‘out-of-level’ or ‘off-level’ ‘alternative’ assessments as opposed to the state mandated assessment tests. The problem is that my children were never given alternative off-level assessments to my knowledge. If they were, I was never notified or allowed to see the results. I imagine the school district did not include my children in any alternative assessments as they were afraid my children would drag their ratings down. As it stands now, the Molly Stark school, where my children received some of their public education and special education, is now designated as a low
performing school who needs state oversight.
Referring back to the home study regulations that apply, I presume you are obligated to uphold and enforce the laws that have been enacted, as an officer of the court. I once again remind you, that no matter what excuses the DOE made as to why they were so late in objecting to my home study program, the Commissioner, or his designee, failed to comply in the time restrictions, defined by law, by sending me a written notice long after the 45 calendar day period had expired. Lame excuses do not justify the DOE’s failure to object within the legal time frame.
Their other objection to my home study program was that I refused special education services for my children. Special education is an entitlement. Even though a hearing officer may have a right to order a comprehensive evaluation for my children on the grounds that they may need a special education evaluation, the law does not go beyond that. But the Commissioner has not requested a hearing for that reason. State and federal law, like IDEA, does not obligate a parent to accept special education and related services. The Commissioner’s designee failed to send a written notice to me within the 45 allotted calendar days after receiving my home school notice, Since the following did not occur within the time restriction required by law, then this hearing itself may be illegal. The regulations also state, “Nothing in this section requires that a home study program follow the program or methods used by the public schools.” So, a home schooling parent, like myself, cannot be required to follow a specialized program that is based on an IEP either. The content is supposed to be adapted to the age and ability of the child.
I also find it very troubling that VT DOE legal counsel,Barbara Crippen, admitted that she was unfamiliar with, as were you, about the highly publicized home schooling parent, Karen Maple case and the VT Supreme Court (Docket No. 99-351--May 26, 2000) decision. I would hope that you would research this Vt. Supreme Court decision before venturing to make a ruling that may well be in total conflict with their finding. To summarize the case, Karen’s Maple’s son was accused of being truant from public school, even though Karen had been home schooling, and was refusing to accept special education services through the public school for him. To put it as simply as I can, my understanding is that the Vt. Supreme Court ruled that Karen Maple’s son was not truant since it was her decision to keep him home and she had the right to refuse special education services for him. This case mirrors my current plight.
The problem, as I see it is this. The school districts in Vermont have failed to provide my children with a Free and Appropriate Education. They failed to teach them to read. They made minimal progress in both their regular education and special education programs. I have heard that in the first three years of school, children learn to read, and then after that, they read to learn. I believe that I can do a whole lot better. I am more invested in my children and their welfare that any strangers in the school districts. We should not be discriminated because we are poor and because we lost our home in a fire. We are in the process of rebuilding.
Isn’t it discriminatory to have lower expectations and set lower standards for my “handicapped” children. The state testified that the minimum course of study goes beyond the “minimum” expectations and that my standards have been set too high. I say that they have a double set of standards. A high standard for other public school children, but a lowered standard for mine. The State Board of Education has a mission statement: The State Board of Education shall sustain a vision of high skills, creative thinking, and love of knowledge and learning for every student by setting education policy that improves student achievement in a safe and healthy learning environment. I entrusted my children to their care. My children were teased and harassed at school by other students. They were afraid to go to school at times. The
records will demonstrate that I discussed the teasing with school staff. Nothing was ever done about it. My children did not feel safe.
I think the record will also support that my children did not receive an adequate education while attending public schools. I believe a thorough review of the records will demonstrate that the school districts failed to complete their comprehensive evaluations, that my child (perhaps children) were mis-classified, and that the IEP’s had been developed based on incomplete evaluations and erroneous evaluations. I will focus on Andrew as he was in public school the longest.
Prior to starting school, Andrew was enrolled in a Head Start Program. A Primary Project report was filled out by one of the staffers. This report, written on 4/2/92, identified as a standard Transition Form, provided a brief overview of Andrew by Laura Williams, Bennington Head Start Program. She observed that Andrew “appears to be emotionally stable”…and that his “fine motor skills were good.” She further observed that he is “very particular and takes his time to do a good job”…. She concluded, based on what, I don’t know, that he had not had as much exposure to a great deal of gross motor activity stating that he is “a little awkward, but with appropriate…. : She did not finish this sentence.
A screening was done on Andrew, 2/10/93, almost a year later, based on his teacher’s observation that Andrew was performing below the expected range for his age. Her concerns were related to his speech and language development. A screening was done (not a comprehensive evaluation) and the conclusion was that Andrew was behind his classmates. A recommendation was made to the Head Start program by the EES Director that a comprehensive evaluation be initiated. To my knowledge, a formal referral was never made.
I have since learned, that under Child Find, the district had a further obligation to seek out and identify children with suspected needs and initiate a formal request for a comprehensive evaluation. If their concerns were so grave at that time, then why did they fail to pursue the evaluation. On 2/1/94, a year later, I signed a consent form for the Head Start Program to release confidential information to the public school as I had enrolled Andrew in Kindergarten. So they should have seen the same written information as outlined above. Andrew’s Kindergarten teacher wrote on his the 3rd and 4th quarter progress reports, that speech was a “major concern”. She also noted that Andrew was “not on an IEP and was not receiving services from a Speech Language Pathologist”. She felt his reading skills were below average. She then gave Andrew a Slosson Reading Readiness Test on June 2, 1994, without my consent, which he failed. However, despite his failure to pass this test, he was still promoted to the first grade. Something else does not add up. According to Andrew’s pupil progress report card for his third and fourth quarter that year, this same teacher stated that Andrew performed satisfactory. So despite the fact that she stated that “speech was a major concern” and the fact that he failed the reading readiness test she gave in June of 1994, he received satisfactory grades and was passed to the next grade.
When Andrew entered the first grade at the Catamount Elementary school, his teacher drafted goals for Andrew, a standard practice for each student. One of her stated goals, among others, was to help Andrew feel better about him self. She said he could do many things without help, through praise and encouragement: practice naming letters and sounds; counting, to paraphrase her report.
It wasn’t until Nov. 2, 1994, that a referral was actually made, by an Andrea Hogan, to the Instructional Support Team to have a meeting on Nov. 8, 1994. Her concern was worded, “Andrew entered school for the first time in Feb. of 1994. He is very low academically and socially.” There is no signature in the signature location of the case manager. I never received an invitation to attend this meeting, nor did I receive any meeting notes. In fact, there doesn’t appear to be any meeting notes as to what the Instructional Support Team decided to try. Also, conspicuously absent were the recommendations this team decided to implement. So how are we to know what instructional support was given to Andrew? In the records is a Parent Information Sheet that lists Andrew’s current information, birth and medical history, school history and speech-language history. This form was filled out by someone other than
myself. The speech and language form was left pretty much blank. But speech and language had been a major concern for them.
Finally, on Jan. 20, 1995, a referral was made for Special Education Services by a Charles Young (who is later identified as the principal) two years after the staff first suspected that my son may have had a disability. I did not receive a written content of notice to attend this meeting. Next in the records, is a form,, dated 2/8/95, that was identified as an Initial Evaluation request for Information To Develop an Evaluation Plan. The signature again says Charles Young, but it does not match the first “Charles
Young” signature on 1/20/95, which leads me to assume the same person also forged his signature a second time.
On 2/10/95, a Parent/Teacher Planning form was filled out. It identified Andrew’s strengths as “Knows letters and sounds; able to write understandable sentences by self; uses readiness skills in math”. Attached are the teacher’s quarterly reports. However, only the 1st quarterly report was completed by the teacher.
On 2/14/95, an Evaluation Plan form was completed by the Basic Staffing Team. The written notice of this meeting, addressed to me, was also dated that same day, 2/14/95. The Evaluation Plan listed a number of tests and other evaluations and information to be gathered or done on Andrew. None of these tests or purposes was ever explained to me. I was just expected to sign the Consent form, which I signed on 3/ 2/95.
Then the records get even more confusing at that time. The EPT obviously met without me on 2/14/95. One of the tests the EPT determined was necessary to a comprehensive evaluation was a Woodcock-Johnson Adaptive Behavior test, assigned to Brenda MacDonald, consulting teacher. It stated that the need for this test was to assess Andrew’s skills in independence and caring for his needs outside of school. Yet it seems this test was never done. There is no record of this evaluation in the files. The team commented, according to the meeting minutes, when they coded my son, that they expected the adaptive behavior scale would be in the same range as cognitive, academic and language scores. In other words, they presumed that Andrew would perform poorly on the ABS. But without this particular test, they lacked the information necessary to identify my child as Learning Impaired versus having a Learning Disability. If my child was mis-classified then, how could possibly create an
IEP sufficient to his needs. Clearly, demonstrates as indifference toward their obligation to complete the comprehensive evaluation. Part of this comprehensive evaluation also included reviewing past records. A Child Rating Scale was done by Betsy Clune and was to be repeated at the end of the academic year. Since there is nothing further in the file, it appears that they did not repeat it at the end of the year.
The conclusion of the EPT (BST), on 4/30/95, once again, a meeting held without my participation, was that Andrew demonstrated a Learning Disability. The tests they administered indicated he was working more than 1 standard deviation below the mean in reading and written language. The team concluded that Andrew needed a developmental structured reading program (unspecified) and re-mediation of visual motor skills and fine motor written language. The records do not mention the completion of the Woodcock-Johnson Adaptive Behavior Test as agreed to by the team, that might have identified Andrew as Learning Impaired. One must also conclude, based on this and a new recommendation to have an OT screening to look at tracking, fine motor and visual skills, is that Andrew may have been erroneously mis-classified from the very first evaluation. The EPT (or BST) failed to complete the
comprehensive evaluation as outlined in their initial planning meeting on 2/14/95. Which also raises the concern as to why they recommended that Andrew needed re-mediation of visual motor skills and fine motor written language skills. There was no OT, PT or ABS assessment done.
The Decision of Basic Staffing Team was dated 4/30/95 on a form addressed to me. It included that “If parent has any questions or concerns or would like to meet with the BST, call 447-7543.”On 5/1/95, there was, oddly enough, yet a second Notification Form of Basic Staffing Team Meeting to Determine Eligibility, to be held on 1/9/95 to determine if Andrew is eligible or continues to be eligible for special education services. Keep in mind that he had been found eligible on 4/30/95. Persons who had not been invited attended. The stated purpose of meeting was for an Initial Evaluation.
Meeting minutes confirm that the discussion was for a comprehensive evaluation, i.e., medical, life circumstances, with attached recommendations:
1. Recommend OT screening, 2. Developmental Structured Reading Program, signed by Charles Young (I must point out that once again, this signature does not match his first signature, but it does match the second signature that appears to be forged).
The unexplained second BST’s decision was that, my son, Andrew, was eligible, yet again, for special education services under the disability category 2362.1, learning disability. An additional form, dated 5/95 is found in the file. It is a Student Information Form _Reading Skills: Level pp1. It outlined programs used:
Project Read: Wright Group Story Box/ *Whole Language Strategies. It again states that Andrew “needs a Developmental Reading Program”. Math Skills: Level 1.
Programs used: Math their Way; Addison-Wesley: Is gaining in beginning math skills. Has basic understanding of addition and subtraction, but is weak in all areas.
Written Language Skills: Level-early phonetic. Expressive Language Skills- Can use beginning, middle and ending sounds in *inventive spelling.
Social Skills: Has had 1 ½ years in school. Attending two different schools. Finds it difficult to make and maintain friends; often initiates social contact in less than desirable ways. Check list for Accommodations made in the classroom. Needs visual
presentations.
On 5/9/95 is another set of meeting minutes identified as a second Basic Staffing Team meeting. It once again stated that the BST has found Andrew Veach eligible to receive special education services. “These services are described in the Individualized Education Program that was written for your child.” “The IEP Team recommends that following placement: Andrew needs a developmental structured reading program and recommendation of visual motor and fine motor skills. We recommend this placement because Andrew is significantly below his classmates (by one year in academic and social interactions).
Other placement options we considered were Chapter I. We rejected these options because “Not sufficient enough to meet Andrew’s needs”.” Handwritten notation on this form stated, “Consent form not signed.” This notice is signed by Maggie Freeman, Special Educator and is written on the same day that the IEP meeting was held. There is no prior written Content of Notice that an IEP meeting was to be held. A unsigned form for my parent signature was attached, when they mailed me their findings.
The next IEP was written a year later, but there was no formal review of the last IEP to see what goals and objectives had been measured and met. The IEP had been written to require that the goals and objectives were to be measured for very specific things in very specific ways. This was not done. Yet a new IEP was created with no baseline measures to start off with, and little carry over from one IEP to the next. The same was true the next year. Then we get to the next IEP. Progress on his IEP’s were seldom measured or documented. What progress reports in the file were brief and very vague, basically stating that Andrew had made some progress, but progress was never clearly defined.
In 1998, a three year re-evaluation was planned for Andrew. The team wanted to look into 3 specific areas: whether Andrew has a learning disability, a language impairment or an OHI, an Attention Deficit Disorder. Dr. Paul Garrison did the achievement testing. He noted that Andrew’s IQ had dropped significantly since the last evaluation (1995). He said he could not explain this. Three years earlier, he had a Full Scale IQ score of 82 (verbal was 93, performance IQ was 73). It dropped to a Full Scale IQ of 70, with a verbal IQ of 80 and a performance IQ of 65. The most significant drop was in his verbal IQ. While Dr. Garrison was puzzled by this, I am afraid he was not aware of the “Matthew Effect” which I will explain. Here is another student’s case:
“Paul is a thirteen year old student with a Central Auditory processing Disorder and ADHD. When he entered Kindergarten, his skills were about 6 months behind his peers. By second grade, he was about 1.5 years behind his peers. By 4th grade, he was 2.5 years behind. On his most recent evaluation, his Full Scale IQ had dropped by 9 points. On his report cards, he received average grades.”
The answer to this question about Paul and his dropping IQ score was answered like this, “ IQ scores will often vary from evaluation from evaluation. In most cases, IQ scores don’t change dramatically unless there has been an unusual event (injury, trauma, etc.). When we see falling IQ test scores, we ask if this is due to the “Matthew Effect”.
“The “Matthew Effect” is a term coined by Keith Stanovich, a psychologist who has done extensive research on reading and language disabilities. The “Matthew Effect” refers to the idea that in reading (as in other areas of life), the rich get richer and the poor get poorer.”
“If children with disabilities do not receive adequate re-mediation, they read less - and learn less from reading - than non-disabled children. Because some IQ subtests measure information learned from reading, poor readers will score lower on these subtests. Over years, the “gap” between poor readers and good readers grows.”
Another example follows:
The “Matthew Effect” was a key issue in the James Brody case. James is a child from North Carolina who has dyslexia. James was found eligible for special education in 3rd grade. After 3 years of special education, he was re-tested. According to the new testing, his IQ dropped from 127 too 109. Two years later, James was retested again - his IQ had dropped even further. Two experts, Dr. Rebecca Felton, from Southport, NC, and Dr. Rick Ellis, from Norfolk, VA., testified that James’ declining IQ test scores was an example of the Matthew Effect - and was evidence that James had not received appropriate re-mediation. The Administrative Law judge and the Review Officer agreed and found that the school district had not provided James with an
appropriate education. To read the Review Officer’s Final Decision, go to
http://www.wrightslaw.com/case_Brody_RO-decision.html
Dr. Margaret Kay, a psychologist from Pennsylvania, has also testified to the Matthew Effect in a special education case. Dr. Kay suggested this link for more information about the Matthew Effect:
http://www.edc.org/NECAC/resources/l-firstch.html
appropriate education. To read the Review Officer’s Final Decision, go to
http://www.wrightslaw.com/case_Brody_RO-decision.html
Dr. Margaret Kay, a psychologist from Pennsylvania, has also testified to the Matthew Effect in a special education case. Dr. Kay suggested this link for more information about the Matthew Effect:
http://www.edc.org/NECAC/resources/l-firstch.html
The article notes that, “Students who do not learn to read during the first three years of school experience enormous difficulty when they are subsequently asked to ‘read to learn’. Teaching students to read by the end of third grade is the single most important task assigned to elementary schools.”
Two other special education cases also reflect my belief that Andrew did not receive an appropriate education while in the public schools and on IEP’s. In the Fourth Circuit Court of Appeals in Carter v. Florence County School District Four [920 F.2d. 156 (4th Cir. 1991) at 159] found the public school’s IEP to be inadequate because rather than aiming at grade level equivalency, it “allowed Shannon to continue to fall behind her classmates at an alarming rate and therefore ensured the program’s inadequacy from it’s inception”
I would like to interject here, that when Andrew’s IEP for 1998 was drafted with Kathleen Keltz as his case manager, despite the fact that he was in the fifth grade, the team recommended in his IEP that material be represented to Andrew with On-Grade material. What they meant by On-grade, was to present material to Andrew with first and second grade material. They decided that Andrew’s grades would also be based on his IEP and not on the fifth grade curriculum. The IEP only created a wider gap between Andrew and his peers.
In a Virginia state education agency decision, a hearing officer found that even though a special needs student was mainstreamed with regular education students, received passing grades, and was monitored regularly, the student did not receive the amount of “educational benefit” required by the federal “free and appropriate public education” standard. The hearing officer stated “[m]ore is required than passing grades in regular education classes, by a handicapped child for such a child to receive ‘educational benefit’.” Here the hearing officer relied on the lack of progress shown by low standardized test scores and determined that on the basis of those standardized test scores the student, in fact, made no progress in the areas which his special needs program was intended to address.
There are very distinct parallels to my own son’s public school experience. When he was in first grade, he was only a year behind his peers. By the time he was in 5th grade, the gap had widened. He was now 4 years behind his peers.
Mrs. Kathleen Keltz, who testified at the hearing, commented in a school record that Andrew had actually shown regression in reading. She also testified at the hearing that IQ scores do not change. Then how does she explain Andrew’s decline in IQ scores if they don’t change. I believe the Matthew Effect explains what can alter an IQ significantly as a result of inappropriate re-mediation. Also, the record support that Andrew was passed from grade to grade, despite that he fell further and further behind his peers.
One of the questions listed for the comprehensive evaluation was Question # 3. Are there any health or medical issues regarding motor skills or issues related to attending and concentrating? Answer to question #3. “There are no known health problems related to attention and concentration.” No evaluation was ever obtained by the school for a physician’s opinion as required by special education law.
* Vt. Regs., 2362 Eligibilit,y a student must receive a “ comprehensive evaluation (Rule 2362.2) For OHI (ADD/ADHD), a physician’s opinion is necessary to make this determination. Vt Reg. 2362.1 (g) page 20. The evaluation was slip-shod at best. Note: Attachments I received with the EPT report also have discrepancies: I believe the attached page from a older 1995 birth and medical history is attached as well as the teacher’s ADHD Rating Scale. Missing is the parent’s ADHD rating scale. There are 2 Nurse’s Medical Report attached. The EPT met on 4/8/98 to make the disability
determination. The first nurse’s report is dated 11/98 and the second nurse’s report is dated 5/1/99. Also, they fail to have included a developmental review or school record review to look at attentional concerns in the classroom since Andrew began school.
There was no OT report either. Mary Albyn, the O. T., was not present at the meeting on 4.8.99. Her report is also attached to my file, but is dated a day after the eligibility
determination. The first nurse’s report is dated 11/98 and the second nurse’s report is dated 5/1/99. Also, they fail to have included a developmental review or school record review to look at attentional concerns in the classroom since Andrew began school.
There was no OT report either. Mary Albyn, the O. T., was not present at the meeting on 4.8.99. Her report is also attached to my file, but is dated a day after the eligibility
determination meeting, on 4.9.99. More importantly, the EPT has only 30 days in which to write and IEP and determine placement. The last IEP services ended on 4/8/98. A new IEP was not written nor put into place until 9/17/99.
I wish to summarize some of the IEP. I want to point out, in particular, under item 6., “Include strategies, positive behavioral interventions and supports to address behavior issues when the behavior interferes with the student’s learning or other students’ learning. The column is marked N/A (not applicable. In other words, Andrew’s behaviors were not noted as problematic. The IEP also stated that “Andrew will receive reading instruction & speech articulation outside the regular classroom. Andrew needs a highly individualized ed program and a quiet environment to hear speech sounds.”
The Concerns listed in the IEP :
-Reading very weak 1.0 Slosson 9/98 has shown regression since comprehensive
evaluation
-Is easily distracted
-Math computation weak
-Low self-esteem
These goals and objectives in his IEP were to be met with the following
accommodations:
Prefers to work in quite setting.
Modified spelling list, grade 2-3
On-grade-level material to be read to him; modify and reduce written
assignments- include hands on activities.
Math manipulatives, and calculator to be used as decided by teacher
Stress key concepts
Adapted tests
Involve activities to foster self-esteem such as Project Adventure
accommodations:
Prefers to work in quite setting.
Modified spelling list, grade 2-3
On-grade-level material to be read to him; modify and reduce written
assignments- include hands on activities.
Math manipulatives, and calculator to be used as decided by teacher
Stress key concepts
Adapted tests
Involve activities to foster self-esteem such as Project Adventure
The record is silent on whether these interventions were actually implemented. The progress reports were so very brief and lacks specific information related to the IEP.
Mrs. Keltz progress reports are pretty generalized. She stated that he has picked up some general knowledge and concepts but has not mastered any set progression of skills. He can apply a few rules in reading and spelling words, and has made some progress in writing and math. Mrs. Keltz also noted in her progress report notes that Andrew as doing well on ‘Grade 2’ spelling words. Again, I want to point out that Andrew is in the 5th grade.
His next IEP, as submitted in discovery by the Vt. DOE, shows once again, that an IEP meeting was held for Andrew on 6/4/99. His last IEP, however, was valid until 6/17/99. Those present at this meeting are listed as myself, LEA Rep., Kathleen Keltz,, Steve Zimmer, Special Educator, Gail Crowley, Classroom teacher, and Sue Maguire, Principal, Barbara Barcomb, Speech Therapist, Lori Ableson, CCC/SEP, Speech-Language Pathologist. The record shows that Lori Ableson did not attend.
Again, the record supports that behaviors of Andrew were not a concern, as checked off on the Required IEP Planning Check list. The last IEP was not reviewed to see what should be carried over. In this new IEP, Andrew’s services are cut back. Instead of providing Andrew with a specific developmental reading program 5 times a week for 45 minutes, his reading time was cut back to 30 minutes 5 times week. This seems very odd considering his growing gap in reading achievement.
The IEP team made no attempt to specify how Andrew would improve his spelling of phonetic and irregular words. Distressing also, is the fact that now Andrew will improve his math skills to a 4.0 level as demonstrated by the Brigance Inventory of Basic Skills by 6/2000. Keep in mind, that he was never given the Brigance Inventory of Basic Skills, as required in his IEP, to determine if he met the goals of improving his math skills to a 3.0 level.
Speech/Language Goals were specifically outlined, but there was no service time set aside for speech/language therapy each week. No one was assigned to provide Speech/Language therapy to him. He is only listed as getting Written Language/Spelling for 30 minutes 5 times a week with a special education assistant in the resource room in a small group, not even individual attention. That is a far cry from speech and language therapy.
Andrew, of course, was promoted to the 6th grade with passing grades, but no authentic measures of his IEP goals and objectives. The trend to remediate Andrew’s reading disability was to continue to teach him reading on a second or early third reading level.
Andrew’s former special education teacher and Pam Spinney of the DOE gave testimony that was conflictual. Mrs. Keltz and Pam Spinney testified that Mental Retardation and Learning Impairment were the same, while Lori Ableson explained on the speaker phone that they weren’t. Mrs. Keltz testified that Andrew needed a specific program while Lori Ableson testified that educational materials could be purchased at K-Mart’s. How’s that for consistency.
To summarize, the state is overstepping their authority by their own failure to comply with the home study regulations. The school districts have failed to provide my children with a FAPE. I have no faith in the public school system or in the special education programs that were provided to my children.
Respectfully submitted by:
Patricia O’Dell
Date: 11/28/01
PO’D/FD
cc:
David Wolk, Commissioner
Neil Randall, State Rep.
Cindy Wade, Advocate
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Received unsigned and undated 10 page copy of Hearing Officer Bruce Bjornlund's ruling on Patricia O'Dell's homeschooling today 12/1/01.
In a nutshell:
ORDER
As Mrs. O'Dell has failed to meet the requirements of 16 V.S.A. Sections 166b (a) (3-4), (d) and (i) an is unable to provide the children with a minimum course of study, her home study enrollments for Andrew Veach, Samantha Thompkins, Angela Cameron and Elizabeth Veach are disallowed for this year and for the following school year. Pursuant to 16 V.S.A. Section 166b (h) this order shall take effect immediately and a copy of this order shall be forwarded to the superintendent of Mrs. O'Dell's school district of residence.
Dated at Waterbury, Vermont this ___day of ___.
__________________________
Bruce Bjornlund
Hearing Officer
*****************
There you have it folks. The VT DOE has completely ignored the Constitution, the VT Supreme Court and the law in order to maintain control of Patricia, her children, and the state and federal money that follows them into the public school system inspite of the fact that her children are NOT receiving an education and, in fact, are being damaged by the public schools!!!!!!!!!!!
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No. 04-411.
-- May 04, 2007
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
Paul F. Hudson, J. (Ret.), Specially Assigned.William D. Wright, Bennington County State's Attorney, and Andrew G. Costello, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
¶ 1. Defendant appeals her convictions for attempting to impede a police officer and custodial interference, arguing that there was insufficient evidence on the first charge and that conviction under the second charge was legally impossible. We affirm.
¶ 2. On September 13, 2002, the Bennington Family Court issued three emergency detention orders granting the Department for Children and Families (DCF) 1 custody of defendant's children due to alleged educational neglect. Two DCF employees and several law enforcement officers went to defendant's mother's house in an attempt to locate the children and execute the detention orders. Upon arrival, a DCF employee attempted to explain the orders to defendant. Defendant refused to release the children into DCF custody and would not allow anyone into the house without a warrant. Over the course of approximately two hours, defendant intermittently came in and out of the house, speaking with police and DCF workers, but continued to refuse entry. One law enforcement officer left to obtain a search warrant.
¶ 3. While waiting for the warrant, a police officer noticed one of defendant's children behind the house. Police officers began to chase the child, and defendant followed them. Defendant concedes that during this chase she made contact with an officer and then fell over herself. At this point, police arrested defendant. She was charged with attempting to impede a police officer under 13 V.S.A. § 3001, and custodial interference under 13 V.S.A. § 2451(a). At trial, defendant moved for acquittal pursuant to Vermont Rule of Criminal Procedure 29(a), arguing that there was insufficient evidence to demonstrate that she impeded the officer and that she did not receive proper notice of the detention orders. The district court denied the motion, and the jury returned a verdict of guilty on both counts.
¶ 4. On appeal, defendant first argues that the district court erred in denying her motion for acquittal because there was insufficient evidence to support the charge of attempting to impede an officer. Specifically, defendant claims that there was insufficient evidence to prove that she knowingly and purposefully pushed a police officer to prevent him from pursuing her child. In reviewing a denial of a motion based on insufficiency of the evidence, we view the evidence in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Burnham, 145 Vt. 161, 165, 484 A.2d 918, 921 (1984). Here, the trooper testified that while he was attempting to pursue the child, defendant pushed him with her hands, causing him to lose his balance. The trooper further testified that the push was not a result of defendant tripping. The jury also heard defendant's version of events and was instructed on the defense of mistake. From the evidence presented, the jury could conclude that defendant's actions were purposeful beyond a reasonable doubt. Thus, the motion for acquittal was properly denied.
¶ 5. Defendant's second argument is that it is legally impossible for her to be convicted of custodial interference because DCF is not a “lawful custodian” within the meaning of the statute. Because defendant did not raise this issue in the district court, we review for plain error. V.R.Cr.P. 52(b) ( “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).
¶ 6. Custodial interference is defined as “taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old.” 13 V.S.A. § 2451(a). In addition, the preceding chapter on kidnapping defines lawful custodian as “a parent, guardian or other person responsible by authority of law for the care, custody or control of another.” Id. § 2404. Based on this definition, defendant argues that DCF is not a person, and, thus, not a “lawful custodian” under the statute. Further, defendant maintains that the custodial interference statute was enacted to respond to parental abduction cases and that the Legislature did not intend for the crime to apply in situations where a parent takes or keeps a child, who is lawfully in DCF custody.
¶ 7. In interpreting statutes, “our goal is to give effect to the intent of the Legislature, and to do so we first look at the plain, ordinary meaning of the statute.” State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816. When the plain language is clear and unambiguous, we enforce the statute according to its terms. Id.
¶ 8. Upon examination of the statute's language, we conclude that “lawful custodian” includes state agencies, such as DCF. The statute broadly defines “lawful custodian” to include parents, guardians, or other persons responsible by authority of law. We disagree that DCF is excluded from this definition because it is not an individual. Statutes employ the term “person” to refer to entities other than individuals; indeed, the Vermont statutes generally define “person” to include “the state of Vermont or any department, agency or subdivision of the state.” 1 V.S.A. § 128. Moreover, in numerous decisions we have recognized that DCF serves as the legal custodian of children, like defendant's children here, who are ordered into its custody. See, e.g., In re E.L., 171 Vt. 612, 613, 764 A.2d 1245, 1247 (2000) (mem.) (recognizing that SRS, as legal custodian, has authority to place a child who is in its custody). In addition, we note that, to the extent other courts have addressed this question, they have also found that state agencies may act as lawful custodians within the meaning of a custodial interference statute. See State v. Gambone, 93 Or.App. 569, 763 P.2d 188, 190 (1988) (affirming defendant's conviction for custodial interference where defendant removed children from custody of Children's Services Division); see also State v. Whiting, 100 N.M. 447, 671 P.2d 1158, 1160-61 (Ct.App. 1983) (concluding that district court is a “person” that may be vested with legal custody).
¶ 9. Briefly, we address defendant's contention that the Legislature did not intend for the custodial interference statute to apply to situations where a parent keeps or removes a child from lawful DCF custody. As described above, the statute defines legal custodian broadly, and we refuse to read limitations into the usual and apparent meaning of the statute that the Legislature has not provided. Furthermore, we conclude that applying the statute in circumstances where DCF has legal custody is entirely consistent with the statute's purposes. The purpose of the custodial interference statute is to protect any custodian from deprivation of his or her rights, even if such deprivation results from the actions of a person who has a right to physical custody. State v. Petruccelli, 170 Vt. 51, 59, 743 A.2d 1062, 1068 (1999). In addition, the statute is designed to protect children, who are victims in these cases and suffer detrimental effects from wrongful taking or withholding. See State v. Wootten, 170 Vt. 485, 491-92, 756 A.2d 1222, 1226 (2000) (explaining that children are victims in parental abduction cases). Although the more typical case of custodial interference may involve one parent depriving another of custody, under this statute the welfare of the children must be recognized as paramount. There is a risk to children when they are wrongfully detained, whether unlawfully taken from one parent or unlawfully kept from DCF executing a judicially approved protective order. See id. (listing how children suffer from custodial interference); see also Gambone, 763 P.2d at 188-89 (describing how mother committed custodial interference by taking children from protective custody).
¶ 10. Here, the family court, in the interests of the children's welfare, issued an order transferring legal custody of the minor children to DCF. DCF was the “legal custodian” of the children when defendant refused to allow DCF workers to take the children into their protection. Thus, we disagree with defendant that it was legally impossible for her to commit custodial interference, and we affirm her conviction.
¶ 11. Finally, we respond to the dissent's argument that it was impossible as a matter of law for defendant to form the requisite intent for custodial interference because she was extremely emotional and upset. We disagree that there was insufficient evidence to submit the question of intent to the jury. See State v. Hanson, 141 Vt. 228, 233, 446 A.2d 372, 375 (1982) (explaining that standard for sufficiency of the evidence is “whether the evidence, viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.”). There was evidence presented to the trial court to demonstrate that defendant was aware that DCF was the lawful custodian of her children. Both DCF employees and police officers testified that they showed defendant the judge's order and explained to defendant that the court had granted DCF lawful custody of the children. In response, defendant admitted that many people spoke to her about the order and that she remembered receiving a copy of the order, but countered that she was too upset to look at it. Thus, the question of defendant's intent “was properly a matter for the jury to decide, based on all the evidence before it.” Id. at 233, 446 A.2d at 375. Although presented as a legal deficiency, the dissent's position that defendant had “neither the time nor the circumstances” to understand the significance of the protective order is a disagreement with the jury's factual findings. Post, ¶ 19. The jury, as the finder of fact, must resolve contradictions and decide who to believe. State v. Riley, 141 Vt. 29, 33, 442 A.2d 1297, 1299 (1982). In this case, the jury heard all the testimony, was properly instructed on the elements of the charge, and, based on the evidence, found defendant guilty. We find no basis to disturb that result.
Affirmed.
¶ 12. On the afternoon of Friday, September 13, 2002, case workers from the Department for Children and Families (DCF) appeared at mother's home accompanied by six to eight police officers and told mother they were going to take her children. She had received no prior notice that DCF had been granted temporary custody of the children or that DCF planned to pick them up that day. Rather, mother learned that DCF intended to take her children at the very moment the case workers and police showed up at her home. There are valid reasons for DCF to choose to pursue an ex parte emergency detention order in particular cases. The question here, however, is whether a parent under such circumstances can formulate the requisite intent-to knowingly keep the children from a lawful custodian (here, DCF)-such that she may be found guilty of custodial interference as defined by 13 V.S.A. § 2451(a). I believe that, under the precipitous and chaotic circumstances presented by this case, it was impossible as a matter of law for mother to form the culpable state of mind associated with the crime of custodial interference. Because an element of the offense was not supported by the evidence, mother should have been acquitted on this charge.2 Accordingly, I dissent from the portion of the majority affirming her conviction for custodial interference.
¶ 13. It is important to note at the outset that there was no allegation that the children in this case were threatened by imminent harm. Rather, the emergency detention orders were issued on the basis of alleged educational neglect (namely, the contention that mother refused to enroll the children in public school and was not qualified to home-school them). A hearing on these allegations was scheduled for Monday, September 16, 2002; DCF sought emergency detention orders the Friday before. Significantly, the orders were obtained through an ex parte proceeding. In other words, mother did not receive notice of the proceeding, did not participate in it, and had no way of knowing that DCF had been granted custody of the children by a judge-that is, until the moment DCF case workers arrived at her home.
¶ 14. When they arrived, the case workers brought with them Vermont state troopers as well as Bennington police officers. The case workers attempted to explain to mother that DCF had been granted temporary custody of the children pending the hearing, and that she would see them again at the hearing. Understandably, mother became extremely upset when told that DCF was there to take her children. She brought her children inside the house and refused to hand them over to DCF or the police. She insisted that the police obtain a warrant before she would allow them inside. In general, mother was very emotional from the moment the case workers and police arrived at the home.
¶ 15. It was in this charged and chaotic atmosphere that DCF case workers and the police attempted to explain to mother why they were there and the reason her children were being taken. The case workers conceded in their testimony that they were not able to communicate calmly and effectively with mother under the circumstances. Similarly, one of the state troopers testified that when he attempted to show mother the detention order, she refused to look at it. The trooper explained that, “it wasn't a situation where I could calmly read someone an order and I could ․ get good communication going with that person. It just didn't work.”
¶ 16. Given the difficulty that the DCF case workers and police officers had in attempting to communicate with mother, and the fact that she had no notice of DCF's custody prior to that Friday afternoon, the critical question is whether she even had the opportunity to form the intent necessary to commit the crime of custodial interference. “[O]ne of criminal law's most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result.” State v. Trombley, 174 Vt. 459, 460, 807 A.2d 400, 403 (2002) (mem.) (quotations omitted). The culpable mental state for purposes of the crime of custodial interference is that the defendant acted “knowingly”:
A person commits custodial interference by taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old.
13 V.S.A. § 2451(a). A person acts “knowingly” when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Model Penal Code § 2.02(2)(b); see Trombley, 174 Vt. at 461 n. 1, 807 A.2d at 403 n. 1 (referring to Model Penal Code definition of “knowingly” in context of crime of assault). In this case, the critical inquiry is whether mother was aware of “the attendant circumstances” that would make her behavior criminal-namely, that DCF was a “lawful custodian” of the children.
¶ 17. The statute defines “lawful custodian” as “a parent, guardian or other person responsible by authority of law for the care, custody or control of another.” 13 V.S.A. § 2404. A key component of this definition is that the custodian is “responsible [for the child] by authority of law.” Id. (emphasis added). Thus, in State v. Petruccelli we concluded that the defendant-who held his five-week-old daughter hostage at gunpoint and refused to surrender her to either the girl's mother or police-was not guilty of custodial interference because he “neither failed to comply with a court-ordered custody arrangement nor absconded with the child.” 3 170 Vt. 51, 60, 743 A.2d 1062, 1069 (1999) (affirming his conviction for the separate crime of kidnapping). In the absence of such evidence, “[t]he State ․ did not prove [the] defendant intentionally kept [the child] to unlawfully deprive [the girlfriend] of custody within the meaning of the custodial interference statute.” Id. at 61, 743 A.2d at 1069. In the instant case, while there was a valid court order in place, the question is whether mother had a meaningful understanding of this fact such that she could be said to have “knowingly” deprived DCF of custody. If not, this defeats the charge.
¶ 18. On that point, it is instructive to compare the facts presented to us here with those in State v. Wootten, 170 Vt. 485, 756 A.2d 1222 (2000). There, the mother had established visitation rights by court order, but when she went to pick the children up, the father had fled the state with them. Id. at 487, 756 A.2d at 1223. The father subsequently evaded service of the court's custody order for years on end by repeatedly moving with the children to different states and adopting a false identity. Id. When he was eventually located and charged with custodial interference, father argued that he could not have “knowingly” deprived the mother of custody because he was never officially served with the court order. The trial court concluded that there was substantial evidence that the father was nonetheless aware of the court order, and we agreed that “knowledge” for purposes of the crime of custodial interference could be either actual or constructive.4 Id. at 495, 756 A.2d at 1228-29.
¶ 19. Here, although there were undeniably numerous attempts to get mother to recognize that the State had been granted legal custody of her children,5 there is no direct evidence that mother knew that the State was a “lawful custodian,” and the circumstances surrounding the incident do not support such an inference. To begin with, it is undisputed that, because the emergency detention orders were issued ex parte, mother was not aware that DCF had been granted custody of her children before the case workers showed up at her home and attempted to explain this to her. Mother acknowledged in her testimony that one of the DCF case workers told her that “ she had a judge's order or something to pick up my kids.” Even assuming, however, that mother on some level understood that a court had issued an order allowing DCF to “pick up [her] kids,” this is different from understanding the full import of the concept of legal custody. While it is true that a valid court order was waved in her face, neither the time nor the circumstances existed for mother to understand the significance of that order and make a meaningful choice about whether to comply with it.
¶ 20. The scenario faced by mother in this case stands in marked contrast to the typical circumstances present in cases of custodial interference. In fact, all of our decisions interpreting the statute address situations where one parent has denied custody to another in violation of a family court custody order. See, e.g., Wootten, 170 Vt. at 486-87, 756 A.2d at 1223 (father fled state with children to avoid court-ordered visitation with mother); State v. Doyen, 165 Vt. 43, 45, 676 A.2d 345, 345 (1996) (father failed to return daughter to mother, who was custodial parent, at end of court-ordered visitation period and traveled with daughter to several other states).6 And indeed, this is precisely the scenario the statute was intended to address.
¶ 21. As we emphasized in Petruccelli, “[m]odern custodial interference statutes were intended to respond to the increasing occurrence of parental abduction of children as a means to settle a custody dispute or to permanently alter custody.” 170 Vt. at 59, 743 A.2d at 1068. In particular, Vermont's custodial interference statute was enacted “to create criminal liability for parental abductions of children that were evading prosecution under the kidnapping statute.” Id. at 60, 743 A.2d at 1069. We noted that in contrast to the crime of kidnapping, “[c]ustodial interference ․ generally occurs when a parent takes his or her child, or fails to return the child following a court-ordered visitation period, in a manner that prevents the other custodial parent from having contact with the child.” Id.
¶ 22. Accordingly, the elements of the crime focus not on the legal status of the defendant “ ‘but rather focus[ ] on the defendant's actions, the effect of the defendant's actions, and the intent with which those actions were performed.” ’ Id. at 59, 743 A.2d at 1068 (quoting Strother v. State, 891 P.2d 214, 221 (Alaska Ct.App.1995)). If we analyze these factors with respect to the facts of the instant case, it is apparent that mother's actions fall outside the ambit of custodial interference. In terms of her actions, mother took her children protectively inside her home-she did not attempt to abscond with them. In terms of the effect of her actions, she at most delayed DCF taking custody-there was no real threat that DCF would be thwarted altogether. Finally, in terms of her intent, all of the testimony from the witnesses to the incident indicates that mother was reacting hastily and defensively to the sudden appearance of DCF case workers and police officers, rather than being motivated by an affirmative intent to defy a court order.
¶ 23. The precipitous circumstances of a state agency showing up at a parent's home with a court order is quite different from the scenario of parental kidnapping that inspired the enactment of custodial interference statutes and that is the subject of our decisions interpreting the offense. In cases of parental kidnapping, the court order is typically issued in the context of ongoing divorce or custody proceedings so that even if a parent evades service of a specific order, there are circumstances from which we can infer knowledge of the existence of court-ordered custody arrangements, and further infer that defiance of such an order is done “knowingly.” These circumstances simply do not exist in this case. I would reverse the conviction for custodial interference.
¶ 24. I am authorized to state that Justice Skoglund joins this dissent.
FOOTNOTES
1. At the time, the agency was called Social and Rehabilitation Services.
2. While mother did not present this argument on appeal (other than to contend that application of the custodial interference statute to the facts of this case exceeded the purpose of the statute), it was the centerpiece of her defense at trial. Further, as an issue of law that goes to the heart of whether criminal liability exists in this case, failure to consider the argument would not serve the interests of justice. State v. Mears, 170 Vt. 336, 341, 749 A.2d 600, 604-05 (2000) (plain error exists where failure to recognize error would result in miscarriage of justice).
3. Similarly, in the instant case mother did not attempt to abscond with the children. Rather, she retreated into her home and insisted that police obtain a warrant to enter.
4. We did not rule on the merits of this issue as the trial court had dismissed the action on other grounds, which we reversed.
5. The State emphasized at trial that service is not required for an emergency detention order to take effect. Nonetheless, the fact that mother was not formally served with the order is further evidence that mother did not have the opportunity to fully understand the situation. It is true that the child comes into custody of the State as soon as the judge signs the detention order, but it is not necessarily the case that the parent becomes aware of this fact at the same time-quite the opposite when the order is issued ex parte, as it was here.
6. In addition, when enacting the statute, the Legislature discussed only cases of parental kidnapping as examples of instances where the statute would be applied. DCF was not mentioned or considered as a “lawful custodian” in connection with the offense.
David Wolk, Commissioner
Neil Randall, State Rep.
Cindy Wade, Advocate
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Received unsigned and undated 10 page copy of Hearing Officer Bruce Bjornlund's ruling on Patricia O'Dell's homeschooling today 12/1/01.
In a nutshell:
ORDER
As Mrs. O'Dell has failed to meet the requirements of 16 V.S.A. Sections 166b (a) (3-4), (d) and (i) an is unable to provide the children with a minimum course of study, her home study enrollments for Andrew Veach, Samantha Thompkins, Angela Cameron and Elizabeth Veach are disallowed for this year and for the following school year. Pursuant to 16 V.S.A. Section 166b (h) this order shall take effect immediately and a copy of this order shall be forwarded to the superintendent of Mrs. O'Dell's school district of residence.
Dated at Waterbury, Vermont this ___day of ___.
__________________________
Bruce Bjornlund
Hearing Officer
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There you have it folks. The VT DOE has completely ignored the Constitution, the VT Supreme Court and the law in order to maintain control of Patricia, her children, and the state and federal money that follows them into the public school system inspite of the fact that her children are NOT receiving an education and, in fact, are being damaged by the public schools!!!!!!!!!!!
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STATE v. DELL
STATE of Vermont v. Patricia O'DELL.No. 04-411.
-- May 04, 2007
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
Paul F. Hudson, J. (Ret.), Specially Assigned.William D. Wright, Bennington County State's Attorney, and Andrew G. Costello, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
¶ 1. Defendant appeals her convictions for attempting to impede a police officer and custodial interference, arguing that there was insufficient evidence on the first charge and that conviction under the second charge was legally impossible. We affirm.
¶ 2. On September 13, 2002, the Bennington Family Court issued three emergency detention orders granting the Department for Children and Families (DCF) 1 custody of defendant's children due to alleged educational neglect. Two DCF employees and several law enforcement officers went to defendant's mother's house in an attempt to locate the children and execute the detention orders. Upon arrival, a DCF employee attempted to explain the orders to defendant. Defendant refused to release the children into DCF custody and would not allow anyone into the house without a warrant. Over the course of approximately two hours, defendant intermittently came in and out of the house, speaking with police and DCF workers, but continued to refuse entry. One law enforcement officer left to obtain a search warrant.
¶ 3. While waiting for the warrant, a police officer noticed one of defendant's children behind the house. Police officers began to chase the child, and defendant followed them. Defendant concedes that during this chase she made contact with an officer and then fell over herself. At this point, police arrested defendant. She was charged with attempting to impede a police officer under 13 V.S.A. § 3001, and custodial interference under 13 V.S.A. § 2451(a). At trial, defendant moved for acquittal pursuant to Vermont Rule of Criminal Procedure 29(a), arguing that there was insufficient evidence to demonstrate that she impeded the officer and that she did not receive proper notice of the detention orders. The district court denied the motion, and the jury returned a verdict of guilty on both counts.
¶ 4. On appeal, defendant first argues that the district court erred in denying her motion for acquittal because there was insufficient evidence to support the charge of attempting to impede an officer. Specifically, defendant claims that there was insufficient evidence to prove that she knowingly and purposefully pushed a police officer to prevent him from pursuing her child. In reviewing a denial of a motion based on insufficiency of the evidence, we view the evidence in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Burnham, 145 Vt. 161, 165, 484 A.2d 918, 921 (1984). Here, the trooper testified that while he was attempting to pursue the child, defendant pushed him with her hands, causing him to lose his balance. The trooper further testified that the push was not a result of defendant tripping. The jury also heard defendant's version of events and was instructed on the defense of mistake. From the evidence presented, the jury could conclude that defendant's actions were purposeful beyond a reasonable doubt. Thus, the motion for acquittal was properly denied.
¶ 5. Defendant's second argument is that it is legally impossible for her to be convicted of custodial interference because DCF is not a “lawful custodian” within the meaning of the statute. Because defendant did not raise this issue in the district court, we review for plain error. V.R.Cr.P. 52(b) ( “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).
¶ 6. Custodial interference is defined as “taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old.” 13 V.S.A. § 2451(a). In addition, the preceding chapter on kidnapping defines lawful custodian as “a parent, guardian or other person responsible by authority of law for the care, custody or control of another.” Id. § 2404. Based on this definition, defendant argues that DCF is not a person, and, thus, not a “lawful custodian” under the statute. Further, defendant maintains that the custodial interference statute was enacted to respond to parental abduction cases and that the Legislature did not intend for the crime to apply in situations where a parent takes or keeps a child, who is lawfully in DCF custody.
¶ 7. In interpreting statutes, “our goal is to give effect to the intent of the Legislature, and to do so we first look at the plain, ordinary meaning of the statute.” State v. Eldredge, 2006 VT 80, ¶ 7, 180 Vt. 278, 910 A.2d 816. When the plain language is clear and unambiguous, we enforce the statute according to its terms. Id.
¶ 8. Upon examination of the statute's language, we conclude that “lawful custodian” includes state agencies, such as DCF. The statute broadly defines “lawful custodian” to include parents, guardians, or other persons responsible by authority of law. We disagree that DCF is excluded from this definition because it is not an individual. Statutes employ the term “person” to refer to entities other than individuals; indeed, the Vermont statutes generally define “person” to include “the state of Vermont or any department, agency or subdivision of the state.” 1 V.S.A. § 128. Moreover, in numerous decisions we have recognized that DCF serves as the legal custodian of children, like defendant's children here, who are ordered into its custody. See, e.g., In re E.L., 171 Vt. 612, 613, 764 A.2d 1245, 1247 (2000) (mem.) (recognizing that SRS, as legal custodian, has authority to place a child who is in its custody). In addition, we note that, to the extent other courts have addressed this question, they have also found that state agencies may act as lawful custodians within the meaning of a custodial interference statute. See State v. Gambone, 93 Or.App. 569, 763 P.2d 188, 190 (1988) (affirming defendant's conviction for custodial interference where defendant removed children from custody of Children's Services Division); see also State v. Whiting, 100 N.M. 447, 671 P.2d 1158, 1160-61 (Ct.App. 1983) (concluding that district court is a “person” that may be vested with legal custody).
¶ 9. Briefly, we address defendant's contention that the Legislature did not intend for the custodial interference statute to apply to situations where a parent keeps or removes a child from lawful DCF custody. As described above, the statute defines legal custodian broadly, and we refuse to read limitations into the usual and apparent meaning of the statute that the Legislature has not provided. Furthermore, we conclude that applying the statute in circumstances where DCF has legal custody is entirely consistent with the statute's purposes. The purpose of the custodial interference statute is to protect any custodian from deprivation of his or her rights, even if such deprivation results from the actions of a person who has a right to physical custody. State v. Petruccelli, 170 Vt. 51, 59, 743 A.2d 1062, 1068 (1999). In addition, the statute is designed to protect children, who are victims in these cases and suffer detrimental effects from wrongful taking or withholding. See State v. Wootten, 170 Vt. 485, 491-92, 756 A.2d 1222, 1226 (2000) (explaining that children are victims in parental abduction cases). Although the more typical case of custodial interference may involve one parent depriving another of custody, under this statute the welfare of the children must be recognized as paramount. There is a risk to children when they are wrongfully detained, whether unlawfully taken from one parent or unlawfully kept from DCF executing a judicially approved protective order. See id. (listing how children suffer from custodial interference); see also Gambone, 763 P.2d at 188-89 (describing how mother committed custodial interference by taking children from protective custody).
¶ 10. Here, the family court, in the interests of the children's welfare, issued an order transferring legal custody of the minor children to DCF. DCF was the “legal custodian” of the children when defendant refused to allow DCF workers to take the children into their protection. Thus, we disagree with defendant that it was legally impossible for her to commit custodial interference, and we affirm her conviction.
¶ 11. Finally, we respond to the dissent's argument that it was impossible as a matter of law for defendant to form the requisite intent for custodial interference because she was extremely emotional and upset. We disagree that there was insufficient evidence to submit the question of intent to the jury. See State v. Hanson, 141 Vt. 228, 233, 446 A.2d 372, 375 (1982) (explaining that standard for sufficiency of the evidence is “whether the evidence, viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.”). There was evidence presented to the trial court to demonstrate that defendant was aware that DCF was the lawful custodian of her children. Both DCF employees and police officers testified that they showed defendant the judge's order and explained to defendant that the court had granted DCF lawful custody of the children. In response, defendant admitted that many people spoke to her about the order and that she remembered receiving a copy of the order, but countered that she was too upset to look at it. Thus, the question of defendant's intent “was properly a matter for the jury to decide, based on all the evidence before it.” Id. at 233, 446 A.2d at 375. Although presented as a legal deficiency, the dissent's position that defendant had “neither the time nor the circumstances” to understand the significance of the protective order is a disagreement with the jury's factual findings. Post, ¶ 19. The jury, as the finder of fact, must resolve contradictions and decide who to believe. State v. Riley, 141 Vt. 29, 33, 442 A.2d 1297, 1299 (1982). In this case, the jury heard all the testimony, was properly instructed on the elements of the charge, and, based on the evidence, found defendant guilty. We find no basis to disturb that result.
Affirmed.
¶ 12. On the afternoon of Friday, September 13, 2002, case workers from the Department for Children and Families (DCF) appeared at mother's home accompanied by six to eight police officers and told mother they were going to take her children. She had received no prior notice that DCF had been granted temporary custody of the children or that DCF planned to pick them up that day. Rather, mother learned that DCF intended to take her children at the very moment the case workers and police showed up at her home. There are valid reasons for DCF to choose to pursue an ex parte emergency detention order in particular cases. The question here, however, is whether a parent under such circumstances can formulate the requisite intent-to knowingly keep the children from a lawful custodian (here, DCF)-such that she may be found guilty of custodial interference as defined by 13 V.S.A. § 2451(a). I believe that, under the precipitous and chaotic circumstances presented by this case, it was impossible as a matter of law for mother to form the culpable state of mind associated with the crime of custodial interference. Because an element of the offense was not supported by the evidence, mother should have been acquitted on this charge.2 Accordingly, I dissent from the portion of the majority affirming her conviction for custodial interference.
¶ 13. It is important to note at the outset that there was no allegation that the children in this case were threatened by imminent harm. Rather, the emergency detention orders were issued on the basis of alleged educational neglect (namely, the contention that mother refused to enroll the children in public school and was not qualified to home-school them). A hearing on these allegations was scheduled for Monday, September 16, 2002; DCF sought emergency detention orders the Friday before. Significantly, the orders were obtained through an ex parte proceeding. In other words, mother did not receive notice of the proceeding, did not participate in it, and had no way of knowing that DCF had been granted custody of the children by a judge-that is, until the moment DCF case workers arrived at her home.
¶ 14. When they arrived, the case workers brought with them Vermont state troopers as well as Bennington police officers. The case workers attempted to explain to mother that DCF had been granted temporary custody of the children pending the hearing, and that she would see them again at the hearing. Understandably, mother became extremely upset when told that DCF was there to take her children. She brought her children inside the house and refused to hand them over to DCF or the police. She insisted that the police obtain a warrant before she would allow them inside. In general, mother was very emotional from the moment the case workers and police arrived at the home.
¶ 15. It was in this charged and chaotic atmosphere that DCF case workers and the police attempted to explain to mother why they were there and the reason her children were being taken. The case workers conceded in their testimony that they were not able to communicate calmly and effectively with mother under the circumstances. Similarly, one of the state troopers testified that when he attempted to show mother the detention order, she refused to look at it. The trooper explained that, “it wasn't a situation where I could calmly read someone an order and I could ․ get good communication going with that person. It just didn't work.”
¶ 16. Given the difficulty that the DCF case workers and police officers had in attempting to communicate with mother, and the fact that she had no notice of DCF's custody prior to that Friday afternoon, the critical question is whether she even had the opportunity to form the intent necessary to commit the crime of custodial interference. “[O]ne of criminal law's most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result.” State v. Trombley, 174 Vt. 459, 460, 807 A.2d 400, 403 (2002) (mem.) (quotations omitted). The culpable mental state for purposes of the crime of custodial interference is that the defendant acted “knowingly”:
A person commits custodial interference by taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old.
13 V.S.A. § 2451(a). A person acts “knowingly” when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
Model Penal Code § 2.02(2)(b); see Trombley, 174 Vt. at 461 n. 1, 807 A.2d at 403 n. 1 (referring to Model Penal Code definition of “knowingly” in context of crime of assault). In this case, the critical inquiry is whether mother was aware of “the attendant circumstances” that would make her behavior criminal-namely, that DCF was a “lawful custodian” of the children.
¶ 17. The statute defines “lawful custodian” as “a parent, guardian or other person responsible by authority of law for the care, custody or control of another.” 13 V.S.A. § 2404. A key component of this definition is that the custodian is “responsible [for the child] by authority of law.” Id. (emphasis added). Thus, in State v. Petruccelli we concluded that the defendant-who held his five-week-old daughter hostage at gunpoint and refused to surrender her to either the girl's mother or police-was not guilty of custodial interference because he “neither failed to comply with a court-ordered custody arrangement nor absconded with the child.” 3 170 Vt. 51, 60, 743 A.2d 1062, 1069 (1999) (affirming his conviction for the separate crime of kidnapping). In the absence of such evidence, “[t]he State ․ did not prove [the] defendant intentionally kept [the child] to unlawfully deprive [the girlfriend] of custody within the meaning of the custodial interference statute.” Id. at 61, 743 A.2d at 1069. In the instant case, while there was a valid court order in place, the question is whether mother had a meaningful understanding of this fact such that she could be said to have “knowingly” deprived DCF of custody. If not, this defeats the charge.
¶ 18. On that point, it is instructive to compare the facts presented to us here with those in State v. Wootten, 170 Vt. 485, 756 A.2d 1222 (2000). There, the mother had established visitation rights by court order, but when she went to pick the children up, the father had fled the state with them. Id. at 487, 756 A.2d at 1223. The father subsequently evaded service of the court's custody order for years on end by repeatedly moving with the children to different states and adopting a false identity. Id. When he was eventually located and charged with custodial interference, father argued that he could not have “knowingly” deprived the mother of custody because he was never officially served with the court order. The trial court concluded that there was substantial evidence that the father was nonetheless aware of the court order, and we agreed that “knowledge” for purposes of the crime of custodial interference could be either actual or constructive.4 Id. at 495, 756 A.2d at 1228-29.
¶ 19. Here, although there were undeniably numerous attempts to get mother to recognize that the State had been granted legal custody of her children,5 there is no direct evidence that mother knew that the State was a “lawful custodian,” and the circumstances surrounding the incident do not support such an inference. To begin with, it is undisputed that, because the emergency detention orders were issued ex parte, mother was not aware that DCF had been granted custody of her children before the case workers showed up at her home and attempted to explain this to her. Mother acknowledged in her testimony that one of the DCF case workers told her that “ she had a judge's order or something to pick up my kids.” Even assuming, however, that mother on some level understood that a court had issued an order allowing DCF to “pick up [her] kids,” this is different from understanding the full import of the concept of legal custody. While it is true that a valid court order was waved in her face, neither the time nor the circumstances existed for mother to understand the significance of that order and make a meaningful choice about whether to comply with it.
¶ 20. The scenario faced by mother in this case stands in marked contrast to the typical circumstances present in cases of custodial interference. In fact, all of our decisions interpreting the statute address situations where one parent has denied custody to another in violation of a family court custody order. See, e.g., Wootten, 170 Vt. at 486-87, 756 A.2d at 1223 (father fled state with children to avoid court-ordered visitation with mother); State v. Doyen, 165 Vt. 43, 45, 676 A.2d 345, 345 (1996) (father failed to return daughter to mother, who was custodial parent, at end of court-ordered visitation period and traveled with daughter to several other states).6 And indeed, this is precisely the scenario the statute was intended to address.
¶ 21. As we emphasized in Petruccelli, “[m]odern custodial interference statutes were intended to respond to the increasing occurrence of parental abduction of children as a means to settle a custody dispute or to permanently alter custody.” 170 Vt. at 59, 743 A.2d at 1068. In particular, Vermont's custodial interference statute was enacted “to create criminal liability for parental abductions of children that were evading prosecution under the kidnapping statute.” Id. at 60, 743 A.2d at 1069. We noted that in contrast to the crime of kidnapping, “[c]ustodial interference ․ generally occurs when a parent takes his or her child, or fails to return the child following a court-ordered visitation period, in a manner that prevents the other custodial parent from having contact with the child.” Id.
¶ 22. Accordingly, the elements of the crime focus not on the legal status of the defendant “ ‘but rather focus[ ] on the defendant's actions, the effect of the defendant's actions, and the intent with which those actions were performed.” ’ Id. at 59, 743 A.2d at 1068 (quoting Strother v. State, 891 P.2d 214, 221 (Alaska Ct.App.1995)). If we analyze these factors with respect to the facts of the instant case, it is apparent that mother's actions fall outside the ambit of custodial interference. In terms of her actions, mother took her children protectively inside her home-she did not attempt to abscond with them. In terms of the effect of her actions, she at most delayed DCF taking custody-there was no real threat that DCF would be thwarted altogether. Finally, in terms of her intent, all of the testimony from the witnesses to the incident indicates that mother was reacting hastily and defensively to the sudden appearance of DCF case workers and police officers, rather than being motivated by an affirmative intent to defy a court order.
¶ 23. The precipitous circumstances of a state agency showing up at a parent's home with a court order is quite different from the scenario of parental kidnapping that inspired the enactment of custodial interference statutes and that is the subject of our decisions interpreting the offense. In cases of parental kidnapping, the court order is typically issued in the context of ongoing divorce or custody proceedings so that even if a parent evades service of a specific order, there are circumstances from which we can infer knowledge of the existence of court-ordered custody arrangements, and further infer that defiance of such an order is done “knowingly.” These circumstances simply do not exist in this case. I would reverse the conviction for custodial interference.
¶ 24. I am authorized to state that Justice Skoglund joins this dissent.
FOOTNOTES
1. At the time, the agency was called Social and Rehabilitation Services.
2. While mother did not present this argument on appeal (other than to contend that application of the custodial interference statute to the facts of this case exceeded the purpose of the statute), it was the centerpiece of her defense at trial. Further, as an issue of law that goes to the heart of whether criminal liability exists in this case, failure to consider the argument would not serve the interests of justice. State v. Mears, 170 Vt. 336, 341, 749 A.2d 600, 604-05 (2000) (plain error exists where failure to recognize error would result in miscarriage of justice).
3. Similarly, in the instant case mother did not attempt to abscond with the children. Rather, she retreated into her home and insisted that police obtain a warrant to enter.
4. We did not rule on the merits of this issue as the trial court had dismissed the action on other grounds, which we reversed.
5. The State emphasized at trial that service is not required for an emergency detention order to take effect. Nonetheless, the fact that mother was not formally served with the order is further evidence that mother did not have the opportunity to fully understand the situation. It is true that the child comes into custody of the State as soon as the judge signs the detention order, but it is not necessarily the case that the parent becomes aware of this fact at the same time-quite the opposite when the order is issued ex parte, as it was here.
6. In addition, when enacting the statute, the Legislature discussed only cases of parental kidnapping as examples of instances where the statute would be applied. DCF was not mentioned or considered as a “lawful custodian” in connection with the offense.
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