Northwest ISD Legal Update October 28, 2014

1. Northwest ISDLegal UpdateOctober 28, 2014 Mari M. McGowan Brandy N. Davis Abernathy, Roeder, Boyd & Joplin 1700 Redbud Boulevard, Suite 300 McKinney, Texas 75070 214-544-4000

2. Subpoenas

3. Subpoenas: the Basics Texas Rules of Civil Procedure (TRCP) 176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must: (a) state the style of the suit and its cause number; (b) state the court in which the suit is pending; (c) state the date on which the subpoena is issued; (d) identify the person to whom the subpoena is directed; (e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2; (f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any; (g) state the text of Rule 176.8(a) [“Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.”]; and (h) be signed by the person issuing the subpoena.

4. Subpoenas Cont’d TRCP 176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following: (a) attend and give testimony at a deposition, hearing, or trial; (b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person. TRCP 176.3(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).

5. Subpoenas Cont’d TRCP 176.4 Who May Issue. A subpoena may be issued by: (a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party; (b) an attorney authorized to practice in the State of Texas, as an officer of the court; or (c) an officer authorized to take depositions in this State [see below], who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena. [Depositions may be taken by a clerk of a district court; (2) a judge or clerk of a county court; or (3) a notary public of this state. Tex. Civ. Prac. & Rem. Code 20.001.]

6. Subpoenas Cont’d TRCP 176.5 (a) Manner of Service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law [see below]. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record. • A witness is entitled to $10 for each day the witness attends court and for $1 for production of documents or certification of the record. Tex. Civ. Prac. & Rem. Code 22.001, 22.004. • This means a witness required to appear and testify AND produce documents is entitled to $11.

7. Subpoenas to Staff • Subpoenas have to be served in person, unless the recipient has agreed otherwise. • A subpoena for testimony may be for a deposition (usually at an attorney’s office) or for a hearing or trial in court. • Office staff have no obligation to aid the server or provide any information to the server that would not be shared with the general public. The server has no right to go into non-public/restricted areas of the school, such as classrooms. • That said, it is generally easier to just accept the subpoena and deal with it, rather than evade service. • When served with a subpoena in the capacity of a school employee, the building principal should be notified immediately. • The District’s legal counsel will assist when there are questions or concerns about the subpoena. The District’s legal counsel will file objections or a motion for protective order on behalf of the District and the staff member.

8. Subpoenas for Records • A subpoena for records will often be to “the custodian of records.” A “custodian of records” is a person responsible keeping records in the ordinary course of business. • Sometimes the subpoena will state that a business records affidavit may be provided in lieu of personal appearance. Sometimes it will not. However, we can always ask the attorney who issued the subpoena to agree to accept a business records affidavit, and often they will agree. It is always preferable to provide the records along with a business records affidavit, rather than have to appear in person to authenticate the records. • The TRCP provides that a party requiring production of documents by a nonparty must reimburse the nonparty's reasonable costs of production. TRCP 205.3

9. FERPA and Subpoenas • Written consent from a parent or eligible student is not required for the disclosure of FERPA-protected information if the disclosure “is to comply with a judicial order or lawfully issued subpoena.” 34 CFR 99.31(a) (9) • The school is required to first make a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action UNLESS the court has ordered the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed (this is unusual and would be indicated on the subpoena). See id.

10. Parents’ Rights and Access to Records

11. Parental Rights and the Law • Parental rights are outlined in Chapter 26 of the Education Code as well as Texas Family Code §151.001 (enumerating a parent’s rights, including the right to make decisions concerning a child’s education). • TEC §26.001(a): Parents are partners with educators, administrators, and school district boards of trustees in their children's education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children. • A parent’s may be modified or restricted by court order.

12. Who is a Parent? “Parent" includes a person standing in parental relation, but does not include a person as to whom the parent-child relationship has been terminated or a person not entitled to possession of or access to a child under a court order. TEC §26.002. “Parent” includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian. FL(LEGAL)

13. Parent’s Rights Generally • A parent is entitled to: • (1)  petition the board of trustees designating the school in the district that the parent's child will attend; and • (2)  reasonable access to the school principal, or to a designated administrator with the authority to reassign a student, to request a change in the class or teacher to which the parent's child has been assigned, if the reassignment or change would not affect the assignment or reassignment of another student.

14. Parent’s Rights Generally Contd. • A parent is also entitled to: • Request, with the expectation that the request will not be unreasonably denied: • (A)  the addition of a specific academic class in the course of study of the parent's child in keeping with the required curriculum if sufficient interest is shown in the addition of the class to make it economically practical to offer the class; • (B)  that the parent's child be permitted to attend a class for credit above the child's grade level, whether in the child's school or another school, unless the board or its designated representative expects that the child cannot perform satisfactorily in the class; or • (C) that the parent's child be permitted to graduate from high school earlier than the child would normally graduate, if the child completes each course required for graduation [See EIF]; and • have a child who graduates early as provided by Subdivision (3)(C) participate in graduation ceremonies at the time the child graduates. TEC §26.003.

15. Access to Student Records • A parent is entitled to access all written records of a school district concerning the parent's child, including: •  attendance records; • test scores; • grades; • disciplinary records; • counseling records; • psychological records; • applications for admission; • health and immunization information; • teacher and counselor evaluations; and • reports of behavioral patterns. • Parents also have a right to access state assessment instruments, access teaching materials, and attend board meetings. • “A parent is entitled to full information regarding the school activities of a parent's child.” TEC § 26.008. See FL(LOCAL); TEC §§ 26.003, 26.005-26.007, See also 34 CFR § 99.4.

16. Rights of Parents of Children with Disabilities • The right to receive Notice of Procedural Safeguards. TEC §26.003, 34 CFR §300.504. • The right to inspect and review any education records relating to their children that are collected, maintained, or used under the IDEA; • The right to inspect and review education records under the IDEA includes-- • The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records; • The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and • The right to have a representative of the parent inspect and review the records. See 34 CFR §300.613.

17. What if a Parent’s Rights Have Been Revoked? • The District shall presume that a parent has authority to inspect and review the student’s records unless it has been provided with evidence that there is a court order, state statute, or legally binding document that specifically revokes these rights. FL (LEGAL); See also 34 CFR § 99.4; Family Code §§ 153.012, 153.073; 34 CFR § 300.613(c).

18. What if the Student is 18? • FERPA: When a student turns 18, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student. 34 CFR § 99.5. • However, although the rights under FERPA have now transferred to the student, a school may disclose information from an “eligible student’s” education records to the parents of the student, without the student’s consent, if the student is a dependent for tax purposes. • TEC: Except as provided by federal law, all rights of a parent under Education Code Title 2 and all educational rights under Family Code 151.003(a)(10) shall be exercised by a student who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Family Code Chapter 31, unless the student has been determined to be incompetent or the student's rights have been otherwise restricted by a court order. TEC § 26.002.

19. Fun in the Sandbox:Child Custody, Guardianships, and Divorce Issues

20. http://www.youtube.com/watch?v=ysxtqtyu70A

21. Texas Family Code § 151.001(d) • The rights and duties of a parent are subject to: • a court order affecting the rights and duties; • an affidavit of relinquishment of parental rights; and • an affidavit by the parent designating another person or agency to act as managing conservator. • Nonparents, including grandparents, aunts, uncles, and stepparents, can and frequently are appointed as conservators for the children. As with parents, they can be appointed sole managing conservators, possessory conservators, and joint managing conservators. Their rights are similar to those of parent sole managing conservators, possessory conservators, and joint managing conservators.

22. Parental Rights Under a Court Order Affecting the Parent-Child Relationship • The rights and duties of the parents of a child are altered as a result of a divorce, a paternity suit, or similar court order affecting the parent-child relationship. Typically, the court appoints both parents as conservators of the child. A parent can be appointed as sole managing conservator, possessory conservator, or joint conservator. • Texas Family Code § 153.071 provides that the court shall specify the rights and duties of the parent conservators that are to be exercised 1. by each parent independently; 2. by the joint agreement of the parents; and 3. exclusively by one parent.

23. Parental Rights Under a Court Order Affecting the Parent-Child Relationship Contd. • In most cases, each parent conservator will have certain rights and duties at all times. Of these rights and duties, the ones most relevant to schools are the following: • the right to receive information from the other parent concerning the health, education, and welfare of the child; • the duty to inform the other parent in a timely manner of significant information concerning the health, education, and welfare of the child; • the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child; • the right of access to medical, dental, psychological, and educational records of the child;

24. Parental Rights Under a Court Order Affecting the Parent-Child Relationship Contd. • the right to consult with school officials concerning the child's welfare and educational status, including school activities; • the right to attend school activities; • the right to be designated on the child's records as a person to be notified in case of an emergency; and • the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child. See Texas Family Code §§ 153.073; 153.076.

25. Parental Rights Under a Court Order Affecting the Parent-Child Relationship Contd. • In most cases, each parent conservator will have additional rights and duties while that parent has possession of the child, i.e., when the child is with that parent. These rights include: • the duty of care, control, protection, and reasonable discipline of the child; • the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure; • the right to consent for the child to medical and dental care not involving an invasive procedure; and • the right to consent for the child to medical, dental, and surgical treatment during an emergency involving immediate danger to the health and safety of the child. See Texas Family Code § 153.074.

26. Orders Regarding Possession/Visitation Schedules What is the school’s responsibility? • A school district does not have any legal obligation to enforce a custody order.   • A school is not subject to any liability if the visitation/possession schedule is not followed. The school is not under the jurisdiction of the family court, only the parentsare at risk of being held in contempt of court if they fail to follow the court’s orders.   • Of course, in situations in which there is a protective order or other circumstances in which the parent cannot be at the school or around the child, the school will deny that parent access and involve law enforcement if needed.  

27. Orders Regarding Possession/Visitation Schedules With regard to custody orders, the District is primarily interested in two things: • The parents’ rights regarding school-related issues and decision-making, and • The children’s safety: whether there is a protective order or other indication of safety concerns.

28. Supervised Visitation and School Activities Sometimes a court order will specify that a parent’s visitation must be supervised. This can be due to concerns regarding the child’s safety and wellbeing (a history of abuse, neglect, substance abuse, etc.) or due to concern that there is a “flight risk” (that the parent may abduct and relocate the child). The school district does not provide supervised visitation. A court may or may not consider having lunch with the child at school or attending a school-related event to be “visitation.” So what does the school do when a parent for whom the court requires supervised visitation shows up for lunch with his or her child?

29. Supervised Visitation and School Activities Contd. • There is no definitive answer to this question, so we use reasonable judgment in interpreting the order. • If the court order requires supervised visitation, but permits that parent to “attend school activities” or something similar, it seems safe to assume that the court does not consider the parent to be such a threat that he or she cannot be allowed to access the child at school. Without other reasons for concern, there is probably no basis to exclude the parent from lunch or school-related activities.

30. Supervised Visitation and School Activities Contd. • If the court order requires supervised visitation, and does not provide that the parent may “attend school activities” or something similar, it seems safe to assume that the court considers the parent’s presence to be a threat to the child’s safety or wellbeing to the extent the parent should be excluded from lunch or any other activity where the parent will have direct access to the child (classroom parties, etc.). • If the parent disagrees with the school’s interpretation, he or she may obtain a clarifying order from the court. • For events that are open to the public (such as football games), the school has no obligation to monitor attendees to ensure the parent is not present.

31. The Right to Attend School Activities • Divorce decrees often designate the right to “attend school activities.” What does that mean? Is lunch with your child considered a “school activity”? • If students’ parents and/or other visitors are generally permitted to attend lunch, then it should be assumed that the parent can attend lunch unless there is reason to believe the parent’s presence would be a threat to the child’s safety and wellbeing or would be a disruption. For example: • the parent has a history of being disruptive • The parent appears intoxicated • A protective order or restraining order is in place • A court order may reasonably be interpreted as removing that parent’s right to attend school activities • The parent’s rights have been terminated entirely

32. The Right to Attend School Activities • Principals have the right to eject individuals who pose a risk to the safety and wellbeing of students or cause a disruption (See GKA and GKC series). • “Unless otherwise provided by law, a board of trustees, administrator, educator, or other person may not limit parental rights.” TEC 26.001(c).

33. Protective Orders/Restraining Orders If there has been family violence, a court may issue a temporary ex parte protective order or a protective order, or both, to protect a child or adult. These orders can prohibit a parent from communicating with the child and from coming within a specified distance of the child’s school.  A temporary ex parte protective order is granted after an informal hearing at which the alleged offender is not present. It is valid for a maximum of 20 days, although it may be extended for additional 20-day periods.  A protective order may last for a maximum of two years. If no expiration date is stated in the protective order, it expires on the second anniversary of the date the order was issued. See Texas Family Code §§ 83.001;83.002; 85.021; 85.022(b)(2)(4); 85.025(a).

34. Protective Orders/Restraining Orders Contd. • Schools must know if a student is affected by a protective order and must know the duration of that order. If a protective order or temporary ex parte protective order prohibits a person from having contact or having unsupervised contact with a child, the school must act to prevent a violation of the order. • No one but the court can waive the restrictions in a protective order or temporary ex parte protective order, not even a parent who is protected by that order. Under penalty of contempt of court, no person, including a person protected by the protective order, may give permission to anyone to ignore or violate any provision of the order during the time the order is in effect. If both parents attempt to pick up the child and one is prohibited from having contact with the child, either the school must refuse to release the child while the offending parent is present or the police must be notified.

35. Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. • (a) A person commits an offense if the person takes or retains a child younger than 18 years of age: • when the person knows that the person's taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child's custody; • when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child's custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or • outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person. • (b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

36. Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY contd. (c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense. (c-1) It is an affirmative defense to prosecution under Subsection (a)(3) that: (1) the taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or (2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor's retention of the child was due only to circumstances beyond the actor's control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child. (c-2) Subsection (a)(3) does not apply if, at the time of the offense, the person taking or retaining the child: (1) was entitled to possession of or access to the child; and (2) was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person. (d) An offense under this section is a state jail felony.

37. Sec. 25.031. AGREEMENT TO ABDUCT FROM CUSTODY. (a) A person commits an offense if the person agrees, for remuneration or the promise of remuneration, to abduct a child younger than 18 years of age by force, threat of force, misrepresentation, stealth, or unlawful entry, knowing that the child is under the care and control of a person having custody or physical possession of the child under a court order, including a temporary order, or under the care and control of another person who is exercising care and control with the consent of a person having custody or physical possession under a court order, including a temporary order. (b) An offense under this section is a state jail felony.

38. Sec. 25.04. ENTICING A CHILD. (a) A person commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, he knowingly entices, persuades, or takes the child from the custody of the parent or guardian or person standing in the stead of the parent or guardian of such child. (b) An offense under this section is a Class B misdemeanor, unless it is shown on the trial of the offense that the actor intended to commit a felony against the child, in which event an offense under this section is a felony of the third degree.

39. Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an offense if, in violation of an order issued under Article 6.08, Code of Criminal Procedure, the person knowingly or intentionally: (1) commits an offense under Title 5 or Section 28.02, 28.03, or 28.08 and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure; (2) communicates: (A) directly with a protected individual in a threatening or harassing manner; (B) a threat through any person to a protected individual; or (C) in any manner with the protected individual, if the order prohibits any communication with a protected individual; or (3) goes to or near the residence or place of employment or business of a protected individual. (b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. (c) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order. (d) An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the defendant has previously been convicted under this section two or more times or has violated the protective order by committing an assault, in which event the offense is a third degree felony.

40. Authorization Agreement for Nonparent Relative Under Chapter 34 of the Texas Family Code, a parent or both parents of a child may enter into an authorization agreement with a grandparent, adult sibling, or aunt or uncle of a child to authorize the relative to perform certain acts on behalf of the child, including consenting to medical treatment, enrolling the child in a public or private school, and granting permission for the child to participate in age-appropriate extracurricular, civic, social, or recreational activities, including athletic activities. Chapter 34 lists specific requirements regarding the authorization agreement. Only one authorization agreement may be in effect for a child at any time. An authorization agreement is void if it is executed while a prior authorization agreement remains in effect.

41. Documents to Verify Parental Rights/Legal Guardianship • Birth Certificate (when no other documents are provided, the school may assume that the parents listed on the birth certificate have all rights) • Divorce Decree or Family Court Order (Including Paternity Orders and Orders Terminating of Parental Rights) • Order Appointing Guardian (Family or Probate Court) • Power of Attorney / Affidavit Transferring Rights • Authorization Agreement for Nonparent Relative

42. Authorization Agreement for Nonparent Relative (Family Code Chapter 34) • Allows a parent to authorize certain relatives or voluntary caregiver in a Parental Child Safety Placement to take specified actions and obtain services on behalf of a child if the parent is unable to for some reason (limited in scope) • Only an option for: • grandparent; • adult sibling; or • adult aunt or uncle; and • An individual with whom the child is placed under a parental child safety placement agreement. • Must contain specific information – a form is available online from the TDFPS: https://www.dfps.state.tx.us/Site_Map/2638.asp

43. Authorization Agreement for Nonparent Relative (Family Code Chapter 34) Contd. • Allows the following rights: • (1) to authorize medical, dental, psychological, or surgical treatment and immunization of the child, including executing any consents or authorizations for the release of information as required by law relating to the treatment or immunization; • (2) to obtain and maintain health insurance coverage for the child and automobile insurance coverage for the child, if appropriate; • (3) to enroll the child in a day-care program or preschool or in a public or private primary or secondary school; • (4) to authorize the child to participate in age-appropriate extracurricular, civic, social, or recreational activities, including athletic activities; • (5) to authorize the child to obtain a learner's permit, driver's license, or state-issued identification card; • (6) to authorize employment of the child; and • (7) to apply for and receive public benefits on behalf of the child. • Can be revoked in writing at any time

44. Power of Attorney A parent can transfer rights to any individual Can be limited to certain rights or can include all parental rights Must be notarized Can be revoked in writing at any time

45. When presented with conflicting information, a document you don’t understand, or a document you suspect is invalid or inauthentic… • Consult with legal counsel. An attorney can review the document to assist in interpreting the parents’ rights. It may be necessary to request additional records from the issuing court. • If the situation is urgent (i.e., both parents are present to pick up a child and it is unclear which parent is entitled to possession), it may be necessary to contact law enforcement to intervene. If you suspect a child is in danger, contact the police immediately. • Explain to the parents that the school takes no sides in a custody dispute, but is legally obligated to follow the most current court order or other legal document that appears valid on its face.

46. Example Scenarios Involving Parents with Custody Orders Scenario 1: Johnny’s parents are “happily divorced.” They have a standard visitation schedule and have both remained active in his school life. Johnny’s dad shows up in the parent pick-up line on Wednesday. Wednesday is not a scheduled visitation day, and his teacher did not receive a note from mom informing them of the change. Do you release Johnny to dad?

47. Example Scenarios Involving Parents with Custody Orders Scenario 2: Jennifer’s parents are divorced and have a temporary visitation schedule in which mom has supervised visits every other weekend. Jennifer’s mom shows up at school to pick her up. While this Friday is her scheduled visitation day, it is before the designated time of 6 p.m. Do you release Jennifer to mom?

48. Example Scenarios Involving Parents with Custody Orders Scenario 3: Kate’s parents are divorced with a somewhat typical visitation schedule. Kate’s mom shared with the office manager at the beginning of the school year that dad is not to have custody of their daughter before 6 p.m. Kate’s dad is on the list of people who can pick Kate up from school. It’s the second Friday of the month, and Kate’s dad shows up in the parent pick-up line. It is his visitation day, but it is before 6 p.m. Do you release Kate to dad?

49. Students in Foster Care - Admissions Admissions (FD (LEGAL)): • A student placed in foster care by an agency of the state or a political subdivision, and whose foster parents reside in the District, shall be permitted to attend District schools free of any charge to the foster parents or to the agency. No durational residency requirement shall be used to prohibit such a student from fully participating in all activities sponsored by the District. Education Code 25.001(f)

50. Students in Foster Care – Admissions Contd. • A student enrolled in a primary or secondary public school who is placed in the conservatorship of the Department of Family and Protective Services and at a residence outside the attendance area for a school or outside the District is entitled to continue to attend the school in which the student was enrolled immediately before entering conservatorship until the student successfully completes the highest grade level offered by the school at the time of placement without payment of tuition. Education Code 25.001(g)