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July 02, 2019 Article

Incorporating an Individualized Education Plan into Your Client’s Defense

Detailed and specific data regarding your child client’s inherent abilities, baseline functioning, and necessary accommodations can translate into better representation at school meetings and in the courtroom.

By Cristina F. Freitas, Debbie F. Freitas, and Alexandra G. Roark

For many juvenile court practitioners, attending special education meetings and modifying a child client’s individualized education plan (IEP) is a routine activity that is seen as a distinct and separate piece from practitioners’ courtroom advocacy for their clients. No doubt, representation at the special education table is both a necessary and essential part of our roles as lawyers for children. However, whether you are able to advocate for your client at an IEP meeting or not, in an increasingly busy and data-driven juvenile court, incorporating your client’s IEP into your courtroom advocacy can provide an individualized and sophisticated defense. Indeed, since youth spend a majority of their day in school, school staff become the de facto experts on the youth in a way that other professionals, such as probation officers or child welfare caseworkers, simply cannot. By harnessing this specialized knowledge, we can offer an individualized and informed defense specifically tailored to accommodate and leverage the youth’s disabilities.

On many levels, the goals of an IEP serve many of the same needs we have in providing zealous courtroom advocacy for our child clients. IEPs set reasonable goals for the child on an annual basis, which pre-identify the youth’s abilities and functioning levels. IEPs also pre-identify what types of services or accommodations are necessary for the youth to meaningfully engage with written and verbal information, and they often include achievement testing scores and data that can be a red flag for competency and other issues. IEPs can show a youth’s ability to comply and engage in services, and because they cover three environments (the general education curriculum, extracurricular activities, and nonacademic activities), they can help identify how a particular disability manifests itself at school and in the community. All of this information can not only guide our interactions with child clients—it can be part of a defense in some of our most common juvenile court cases.

Status Offense Cases

Status offense cases pose a particularly difficult conundrum in the juvenile court. Status offense cases refer to those types of cases that implicate a youth’s behaviors or choices only because of the youth’s age. For example, status offense cases often include truancy petitions, where a child failed to attend school in conformity with the state’s compulsory attendance law, or petitions that allege a child has run away repeatedly from his or her parent. These cases, by their very nature, are problematic because they would not be the source of a court encounter but for the child’s minority status in that these behaviors are not illegal if engaged in by adults. Their problematic nature is often compounded when a youth’s disability and how that disability manifests itself are not adequately understood or considered. Among the most common status offense cases are cases that are based on a youth not following the lawful commands of a parent or guardian and are typically interpreted as stubborn adolescent behavior.

Indeed, while many people at first glance interpret difficult adolescent behaviors as signs of stubbornness, defiance, or aggression, IEPs can often offer greater insight into why a youth is experiencing these behaviors and can offer a zealous defense against a status offense case. This is because status offenses, like the criminal offenses, which they evolved from decades ago, are generally not strict liability offenses. In other words, in every status offense case, there is some sort of willfulness or purposeful conduct requirement. See Millis Pub. Sch. v. M.P., 478 Mass. 767 (2018), and Matter of the Welfare of B.K.J., 451 N.W.2d 241, 243 (Minn. Ct. App. 1990). To attorneys for children, this is intuitive when viewed in the context of other cases, such as truancy. For instance, we don’t necessarily want to bring within the jurisdiction of the juvenile court youth who are missing school because of medical illnesses or appointments merely because they have exceeded a certain number of school days. The crucial question in truancy cases therefore transforms itself from why the child is missing this many school days to why the child is acting this way, which is often shorthand for the legal question of whether it is willful. After all, the status offense laws were created not to punish sick children who have to attend multiple medical appointments or are homebound for significant amounts of time due to debilitating illnesses, but to get to the children who are on the street during school hours or playing hooky and to reach them before they enter the delinquency system.

While this line of thinking is instinctive for truancy cases, the crucial question of why the child is acting this way or whether it is willful is just as applicable a framework for other types of status offense cases, such as stubbornness petitions. Indeed, behavior that is in conformity with a diagnosis is not willful or purposeful conduct and, as such, cannot be the source of a stubbornness petition. Viewed in this light, IEPs, which often detail not only the disability but also how that disability manifests itself in certain situations, offer a crucial piece of the puzzle in these types of cases. For instance, an IEP that documents a diagnosis of intermittent explosive disorder can explain why a parent and child often get into intense arguments over trivial things, because intermittent explosive disorder is characterized by explosive outbursts of anger that are disproportionate to the situation at hand. Likewise, an IEP that documents a diagnosis of attention deficit hyperactivity disorder (ADHD) can explain why a parent is alleging that the child doesn’t listen to him or her or engages in risky behavior, because ADHD is characterized by limited ability to pay attention and impulsiveness.

While the parent and, frequently, the courts attempt to characterize these behaviors as stubbornness or defiance on the part of the youth, the IEP makes clear that these allegations are really just a layperson’s observations of the clinical manifestations of a youth’s disabilities. If these behaviors are a manifestation of the youth’s disability, then they are not willful, which is a fundamental requirement in status offense cases, lest they become strict liability crimes. Further, a parent’s commands cannot be lawful and reasonable, as status offense cases require, when the parent is essentially commanding the youth to stop the behavior that is a manifestation of his or her disability. Finally, the IEP assists the child’s lawyer in placing the onus on the correct party because failure to understand a child’s documented diagnosis is a hallmark of parental limitations, not a status offense for the child. The IEP can also bolster the argument that the status offense case is pointless because there is no helpful service that the court can offer the family. The IEP clearly lists the services to which the child is entitled and the accommodations necessary for the youth to make progress with the disability. The remedial measures most courts have the power to put into place in status offense cases, such as a change in custody, can actually make the youth’s situation worse by placing the youth in a congregate care placement that is ill suited to support his or her diagnosis and can trigger juvenile justice involvement, as well as ultimately create educational instability in a youth who may have been previously engaged in school. Finally, even a correct status offense adjudication is not without consequences for the youth because exposure to the juvenile court system, in and of itself, increases recidivism.

Delinquency Cases

Although perhaps not traditionally part of the necessary discovery in a delinquency case, a good understanding of the youth’s IEP can be critical in several stages of a delinquency case, including the probable cause stage and in violation proceedings.

1. Probable cause determinations. Probable cause determinations are arguably the most important step in a delinquency case, a distinct place in time to stop any further criminal proceedings against the youth, yet many times, these decisions are made blindly by prosecutors. This isn’t for lack of any authority on the topic. The federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(k)(6)(B) (2012), clearly states that schools have a statutory duty to disclose information regarding a student’s IEP to the prosecutor in order for the prosecutor to make an informed and individualized decision on whether to pursue a charge against a youth based on the circumstances. When behaviors that could reach the delinquency realm also appear to be manifestations of the child’s disability, the IEP is particularly important in allowing the prosecutor to exercise sound judgement in deciding whether to allow the school to deal with the issue in a disability-focused way or whether to transfer the incident to the juvenile justice system for prosecution.

While ideally the school would provide this information to the court and the prosecutor for school-based offenses that lead to prosecution, it may be advantageous to your client for you to inform the court and the prosecutor about the youth’s IEP and to help decipher what could be seen as prosecuting the youth based on a manifestation of his or her disability. Related to this, there may also be other factors that the police complaint for a given offense may not fully explain, such as the fact that the behavior occurred at a specialized school or residential placement. When a youth is in a specialized placement as a result of his or her disability, should that youth be criminally prosecuted when that youth’s behavior at the specialized placement is a manifestation of that disability? In other words, should a youth be prosecuted for the very behavior for which he or she is receiving treatment? The Massachusetts Appeals Court took that question up in Commonwealth v. Orville O., 85 Mass. App. Ct. 1126 (2014) (order pursuant to Massachusetts Appeals Court Rule 1:28), in the context of a prosecution of a youth charged with annoying and accosting statements against staff. The court lamented in Orville O. that

[w]e infer from the nature of the facility [a residential facility for developmentally disabled or emotionally disturbed youth] that residents, such as the juvenile, are chosen precisely because of their propensity to engage in the sort of conduct and speech attributed to the juvenile. We also infer a concomitant need for guidance and correction in the juvenile’s social interactions with peers and adult members of the community. In such a setting, a counselor who presumably is trained to carry out the facility’s mission cannot reasonably take offense if a juvenile falters in conforming his language to the expected norms. . . . [W]e conclude that the Commonwealth failed to prove that this language would have been offensive to a “reasonable” person in the circumstances at issue here.

The reasoning behind this decision is applicable to many more scenarios facing our children in special education placements who are charged for school-based offenses, and the IEP should be central to the inquiry as to whether to prosecute the youth. Although more recently the court has stepped back from granting judges the power to dismiss cases such as these prior to arraignment, it has consistently implored the prosecutor to exercise judgement in determining if prosecution of the child is in the child’s best interest.

2. Violations of probation or conditions of release. A youth’s IEP can also prove crucial in defending against an alleged violation of pretrial conditions of release or violations of probation in delinquency cases. For any youth who is involved with the delinquency system where there are conditions of release or probation put in place, there are frequently alleged violations of those conditions or probation. These proceedings are high stakes in that the youth’s freedom can be revoked in the pretrial stages and the youth can be detained for months prior to trial based on a lesser quantum of evidence than at the actual trial. When conditions are imposed as part of a probation disposition to a delinquency case, the youth can be saddled with even more burdensome conditions or even imposition of a sentence after a probation violation hearing. Many youth fail in these two contexts because the conditions the court has ordered are often too onerous or, frankly, too numerous to remember or inapposite to what we know about the adolescent brain. Further, many times, the court creates a list of conditions in addition to the standard conditions that are not individualized to the particular youth’s intelligence, comprehension level, actual needs, and maturational level. This sets the youth up for failure, especially when the court insists on absolute compliance with conditions. When all of this information is combined with the low burden of proof associated with these violation hearings, the risk that our youth clients will end up in detention and further penetrate into the juvenile justice system is serious.

In this scenario, having intricate knowledge about the youth’s IEP, disability, and accommodations can mean the difference between long-term detention in the juvenile justice system and the youth being free in his or her community. Specifically, the youth’s IEP can be used to discern whether the juvenile was actually complying with the conditions of release to the best of his or her ability, which is the heart of any violation. The IEP is a great data source to bring up at a violation of probation hearing, even if untraditional. After all, because the juvenile spends most of his or her day every weekday at school, who could be a better expert about the child than the school?

The IEP can provide valuable insight into the youth in several ways. First, the defense lawyer can use the IEP just as in the status offense context described above, to challenge the juvenile’s willfulness in violating the condition. In this context, the defense lawyer can use the achievement testing included in most IEPs to argue that the youth simply did not grasp all of the conditions. For example, if the IEP lists the youth’s comprehension testing results in the eighth percentile, how will the probation officer prove that the youth comprehended the particular condition? Any information in the IEP from full-scale intelligence quotient testing can reveal serious deficits in the area of memory that are directly relevant to the question of whether any alleged violation of a condition was willful. While the juvenile court might ordinarily interpret the lack of compliance with conditions as defiance or even typical adolescent behavior, where the attorney has lodged his or her argument in the youth’s IEP, this argument is sourced directly from unique and specific data regarding this juvenile, data that were created prior to the violation and that therefore have a high degree of trustworthiness—not an excuse, but an explanation of the youth’s behavior.

Indeed, the accommodations section of an IEP may also have clues about how the conditions were a setup for failure, in addition to providing guidance on how future conditions should be crafted in order to avoid setting up the youth for failure again. For example, a common IEP accommodation includes presenting information on an uncluttered page. Because this accommodation is required in the school setting to ensure the youth can meaningfully access the material, it is directly on point for what accommodations are required in court for the youth to similarly engage with the material meaningfully. We know that typical court forms are anything but uncluttered. As a result, not only does the IEP provide a defense to lack of compliance with any particular condition, it can also provide a prescription for ensuring future compliance as long as the conditions are crafted in a disability-informed way. Another typical IEP accommodation requires that grade-level materials be read to the youth, but court conditions of release forms or probation forms are often not written to grade level for children, nor read to the youth, and this poses a serious problem for then holding the youth accountable for an alleged violation later.

Other parts of the youth’s IEP can also be useful in defending against an alleged violation of a condition. Many times, a youth will be charged with a violation for not following a condition 100 percent of the time, but there may be evidence in the IEP that the youth is not capable of 100 percent compliance with any specific task. Specifically, all IEPs include a measurable goals section that school personnel—as experts on the child—set for this youth annually. Those goals are aspirational in that there is no reason not to set especially high goals for the youth because there is no consequence for not achieving 100 percent compliance with those goals. Nonetheless, the goals are almost never set at 100 percent compliance, and this is because these goals have to take into account each individual youth’s current abilities. When the court looks at these measurable goals, which may be set at 75 percent of the time the youth will do X or the youth will take advantage of X opportunity two out of four times, then even 80 percent compliance with a court-imposed condition is certainly full compliance for this particular youth when viewed in context. In other words, even though 100 percent compliance with the court-imposed condition is lacking, it is nonetheless what full compliance looks like for this particular youth, according to his or her IEP goals.


By expanding your discovery practice to include your client’s IEP, you can harness and leverage an incredible amount of information about your client. That detailed and specific data regarding your client’s inherent abilities, baseline functioning, and necessary accommodations can translate into better representation at school meetings and in the courtroom alike.

Cristina F. Freitas and Debbie F. Freitas are partners at Freitas & Freitas, LLP, in Lowell, Massachusetts, where they represent parents and children in the child welfare and juvenile justice systems. Alexandra G. Roark is a supervising staff attorney in the Trial Panel Support Unit of the Children and Family Law Division of the Committee for Public Counsel Services in Boston, Massachusetts.

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