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2012 HSLDA Litigation Update

December 17–21, 2012   |   Vol. 114, Programs 26–30

“When parents aren’t able to be good patients and ask questions for themselves and for their child, there’s something wrong in our system. The social worker shouldn’t come in and seize a child just because the parents have asked a few questions. That’s what happened here; . . . we’re going to go forward, we believe that victory will come.”

What kind of challenges are the defenders of homeschooling freedom battling on a day-by-day basis? This week, some of HSLDA’s legal team join Mike Farris in the Home School Heartbeat studio to give an end-of-year update on several significant cases.

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In December of 2011, a Michigan court upheld the right of parents to make decisions about their children’s medical treatment, but the State has appealed the case. Join HSLDA Counsel and Darren Jones and host Mike Farris as they analyze the status of the Stieler Case on today’s Home School Heartbeat.

Darren Jones: Last year, Ken and Erin Stieler were taken to court by the state of Michigan when they disagreed with the doctor about their 8-year old son Jacob’s cancer treatments. Critical issues of medical care, parental rights, and the well-being of the child were at stake. Mike, what’s the current status of this case?

Mike Farris: Well Darren, the most important thing is that Jacob Stieler is doing great. He’s now had four clean CAT scans every three months, and there is no sign of reappearance of the cancer in his body. The legal side of it, in July we had oral arguments before the Michigan court of appeals and we’re waiting for a decision as of this moment. We don’t know—sometimes a couple months passes before a decision’s made; sometimes it’s eight months, and the longer it goes, frankly, the better I feel about it, although there’s no guarantees of any kind in a case like this. The ultimate issue is, who decides what treatment a child should have when it’s in a grey zone? It’s not clear that Jacob’s still sick, it’s not clear that these medicines are safe, and it’s not clear that these medicines are effective. And then our contention is, where it’s not clear, where the decision is a discretionary one, parents and not doctors, and not courts, should make that decision.

Darren: Mike, thanks for the update. For Home School Heartbeat, I’m Darren Jones.

Darren Jones: When a hospital social worker invokes an emergency custody seizure of a newborn infant, one would assume that parental neglect or possible harm might be imminent, but that was never the case for the Ferris family and their newborn daughter. Jodie Ferris was just asking questions about a medical treatment plan that was confusing to her. Mike, what’s the status of this case?

Mike Farris: Let me say first of all that Jodie and I are not related; we have similar sounding names but they’re spelled differently. Jodie and her husband were held to be effectively in contempt of the nurse by simply asking a few questions. And arguably, disagreeing with a couple of very very routine things, but there was no issue relative to the safety or the health of the child. When parents aren’t able to be good patients and ask questions for themselves and for their child, there’s something wrong in our system. The social worker shouldn’t come in and seize a child just because the parents have asked a few questions. That’s what happened here; we’re in the early stages of the case, we’re going to go forward, we believe that victory will come; we pray that everyone will join with us to support and encourage the Ferris family through your prayers for parental rights.

Darren: As homeschooling parents, we know how the loss of parental rights in one area can lead to restrictions across the board. For Home School Heartbeat, I’m Darren Jones.

Mike Farris: In 2005 without a warrant, social workers demanded entry into the Loudermilk home, saying, “If you don’t let us in, we’re going to take your kids.” We sued in federal court, saying this was a violation of the family’s fourth amendment rights. Darren, update our listeners on the status of this case.

Darren Jones: Okay, social workers received an anonymous tip that the interior of the Loudermilk’s home contained safety hazards related to it still being under construction. And even though the county had permitted the occupancy, the social workers demanded to be allowed in. The Loudermilks declined. Two months later, the supervisor decided to show her subordinates how to get inside a house. She called for police backup on the way to the house. After forty-five minutes, the Loudermilks relented to prevent the social workers from immediately taking their kids. We sued both the social workers and the officers. Now the trial court ruled our case could go forward to trial, but the police officers appealed and the Ninth Circuit dismissed them out of the case, saying they were entitled to qualified immunity. The trial court is now deciding whether we can still go to trial against the social workers.

Mike: Darren, the Ninth Circuit decision was outrageous. They contended that you can threaten parents with taking their kids and it doesn’t violate their 4 th Amendment rights. We hope that we can overturn this eventually. I’m Mike Farris

Mike Farris: Darren, we’ve done lots of cases involving allegations of child abuse. We’ve got one now where the allegation is elder abuse. Tell me what’s going on.

Darren Jones: That’s right! Mr. and Mrs. Batt have opened up their home to take care of Mrs. Batt’s father. He suffers from dementia, and they have nurses coming in and out several times a week to help out. But someone maliciously reported them to Adult Protective Services. Their adult son Joseph was caring for grandpa that day. Joseph looked out, he saw a police officer watching their house. So he went out and asked what the officer was doing there. The officer rudely stated he had to come in immediately because they had a complaint that his grandfather was being abused. Joseph politely said, “I’m not going to let you in without a warrant,” and then he went inside to call his parents, and the officer followed him in, shouting at him, “You don’t know the law; I have a legal right to come in, I don’t care if there’s no emergency!”

Mike: Darren, it’s obvious, that police officer doesn’t know the Constitution. What policy recommendations would you make to help State officials stay within the boundaries of the Constitution?

Darren: Well, most importantly, they need to know that the 4th Amendment protects our right to be free from unreasonable searches and seizures. And this means that government officials can’t just come in to a private home without a warrant or an emergency, even if they’re investigating child abuse, or elder abuse.

Mike: Thanks for your work in this case; I’m Mike Farris.

Mike Farris: About a year ago, a homeschooling family was charged with five counts of truancy by the State of Nebraska. They were convicted of that in the lower court and HSLDA has appealed and won a complete reversal in the case handled by Peter Kamakawiwoole. Peter, what got this family into trouble in the first place?

Peter Kamakawiwoole: Well the family had moved to Nebraska last spring and Nebraska law says that for first-time filer, homeschoolers are required to provide notices to the state thirty days before they plan to begin homeschooling. Because the family’s living situation was up in the air, they decided to start their homeschool year in early November. This would still leave them plenty of time to meet Nebraska’s minimum instructional requirements, and so they didn’t file their notice until thirty days prior, at the end of September. Meanwhile, a sheriff’s deputy visited the home to investigate charges of truancy, threatened to take the children unless they were immediately enrolled in public school, and handed the case over to the county attorney for prosecution. Although the family hadn’t violated the law, the state decided to go to trial anyway.

Mike: What did the family know that the truant officers apparently didn’t?

Peter: That they hadn’t violated the law, because parents, not public school officials, get to set the homeschool calendar.

Mike: Well, we’re grateful that the judge agreed with that argument and ruled in the family’s favor. Knowing your law is the first line of defense. I’m Mike Farris.

Michael P. Farris, Esq.

Michael Farris is the chancellor of Patrick Henry College and chairman of the Home School Legal Defense Association. He was the founding president of each organization.

Farris is a constitutional appellate litigator who has served as lead counsel in the United States Supreme Court, eight federal circuit courts, and the appellate courts of 13 states.

He has been a leader on Capitol Hill for over 30 years and is widely known for his leadership on homeschooling, religious freedom, and the preservation of American sovereignty.

At Patrick Henry College, Farris teaches constitutional law, public international law, and coaches PHC’s Moot Court team which has won six national championships.

A prolific author, Farris has been recognized with a number of awards including the Salvatori Prize for American Citizenship by the Heritage Foundation and as one of the “Top 100 Faces in Education for the 20th Century” by Education Week magazine.

Darren Jones

Darren Jones received his J.D. from Oak Brook College of Law, an apprenticeship-based law school in Fresno, California. While enrolled in school, he first worked for Christian Solidarity International, a Christian human rights organization assisting persecuted Christians around the world. He later came to work for HSLDA as a legal assistant to Dewitt Black, where he worked with members who were experiencing legal difficulty in their home schooling. As a litigation attorney, Darren assists Jim Mason in preparing cases and defending members who are experiencing legal difficulty.

Darren and his wife Sara were married on September 30, 2000, and they have four children, Adelaide, Stuart, Daphne and Phillip. They “officially” began homeschooling in April 2005.

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