17.4 Adjudication

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

17.4 ADJUDICATION

17.401 Preliminary (Pre-Adjudication) Matters.

A. Jurisdiction over Allegations of School-Based Misconduct. The juvenile court has jurisdiction to consider allegations of school-based misconduct. ³⁷ In several cases, accused youths have challenged the ability of schools to file charges for school-related offenses against students with disabilities and the authority of juvenile judges to hear those cases. Courts have universally held that they do in fact have jurisdiction over delinquency petitions against students with disabilities, even if the result of the petition is to change a student's special educational placement. But in those cases, students do not lose their right to contest the appropriateness of the new placement or any rights under the laws that govern special education.

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In Morgan v. Chris L., ³⁸ in an action brought against a local school system, the Sixth Circuit Court of Appeals ruled that the filing of juvenile court charges against a special education student by his school violated the Individuals with Disabilities Education Act (IDEA) because the school did not follow the appropriate procedures for initiating a change in the student's educational placement. But 34 C.F.R. § 300.535 (amended after the Morgan decision) states,

[n]othing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. ³⁹

Although this regulation seems to implicitly overrule Morgan, ⁴⁰ challenges to the school's conduct under IDEA arguably remain viable when the school system, in the form of an administrator, is the actual petitioner rather than merely a reporter of delinquent activity.

The school is also responsible for the transmittal of the student's records to law enforcement or court intake: "An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime." ⁴¹ This provision places an affirmative responsibility on the school system to provide law enforcement or the court with all special education records. Arguably, the filing of the petition by the court intake officer should not proceed until those records have been considered.

B. Transfer to Circuit Court.⁴² In determining whether a child is a proper person to remain within the jurisdiction of the juvenile court, the judge must consider a variety of factors, including (i) the appropriateness of dispositional alternatives in juvenile court; (ii) the extent of the juvenile's

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mental illness and intellectual disability; (iii) the juvenile's school records; and (iv) the juvenile's physical, mental, and emotional maturity. ⁴³ Special education records may be relevant to these considerations, and advocacy for special education services may positively influence the transfer decision. Counsel should also consider whether the child subject to a transfer proceeding has significant learning deficits that may be the basis for special education eligibility, even though the school had not found the child eligible. A request for a school determination of eligibility for special education services can be made at any time. Also, there are certain due process protections for children who are not yet eligible for special education and related services but are later determined to be eligible. ⁴⁴

C. Detention in Local Jails. Students 18 to 21 years of age who were previously identified as eligible for special education services and whose services were not terminated before incarceration in an adult correctional facility are eligible to continue to receive special education services when detained in adult jails. ⁴⁵ Additionally, students with disabilities who are incarcerated in adult correctional facilities and are under the age of 18 have the right to be identified (if they have not been previously) as students with disabilities and to receive special education services. ⁴⁶

By enrolling the child in special education services in the jail, counsel gains the opportunity to get positive feedback and reports for disposition or transfer, but there is a tension between this right and transfer arguments regarding the differences in educational opportunities between the adult and juvenile systems. Lack of availability of an appropriate educational program at the jail should be considered an important factor in determining whether a child who is being tried as an adult should be held in an adult jail or juvenile detention home. The child must be held in the juvenile facility pending trial unless the court determines that the child presents a safety or security threat. ⁴⁷

17.402 Trial.

A. In General. A client's disability, its accompanying limitations, and the records in the school file may provide important evidence in support

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of suppression motions and defenses to specific intent crimes. These can be relevant at any proceeding, including detention, adjudicatory, and disposition hearings, where a juvenile is alleged to have committed a misdemeanor requiring specific intent during school hours while on school grounds or elsewhere at a school-related or school activity, or on a school bus. The juvenile is permitted to introduce into evidence as relevant to whether he or she acted intentionally or willfully any document created before the commission of the alleged delinquent act that relates to an individualized education program (IEP), a section 504 plan, a behavioral intervention plan, or a functional behavioral assessment on the issue of whether he or she acted intentionally or willfully. ⁴⁸ While the records must have been in existence before the alleged delinquent act, many documents beyond those enumerated in the statute could be considered as "relating to" an IEP, such as psychological evaluations, eligibility decisions, or prior manifestation determinations for similar behaviors, provided that the behaviors are relevant to the issue of specific intent. The juvenile's attorney must provide written notice and copies of the documents to the commonwealth's attorney at least 10 days before the proceeding in which the documents will be used. Copies of the records must be authenticated and an affidavit by the custodian of the record must be completed. ⁴⁹ At the time the records are submitted, the juvenile's attorney should also make a motion to seal the records. ⁵⁰ Attorneys should consider obtaining a release for records from the parent or adult student to ensure that the transmission of the records comports with the Family Educational Rights and Privacy Act." ⁵¹

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