Judicial Spectrum Primer: What Judges Need to Know About Children with Autism Spectrum Disorders

• Author: Robert Marion,Sheryl Dicker
• Published date: 01 March 2012
• DOI: http://doi.org/10.1111/j.1755-6988.2012.01074.x
• Date: 01 March 2012

Judicial Spectrum Primer: What Judges

Need to Know About Children with Autism

Spectrum Disorders

By Sheryl Dicker and Robert Marion

Ricky’s Story*

In the summer of 2010, a young mother called 911 after finding her 1-year-old

daughter blue and not breathing. She was distraught when the police and emergency medical

service arrived. After the police discovered that her 2-year-old son, Ricky, had smothered the

little girl, Child Protective Services (CPS) was called and Ricky and his brother, Eddie, age

5, were taken into emergency foster care and placed with their grandmother.

The mother and father were arrested for child endangerment. CPS then moved to get a

court order keeping both boys in foster care. The motion was granted after the judge found the

boys in imminent risk of harm; the judge also ordered an immediate multidisciplinary evalu-

ation (MDE) of both boys by the local early childhood center that has expertise in mental health

and developmental disabilities of young children.

Two days later, the boys were evaluated at the early childhood center. Eddie was found

to be a normal kindergartener, but counseling was recommended to help him manage the death

of his sibling. In the meantime, Ricky was in the waiting room with his grandmother. He was

silently walking in circles, and did not respond to his name or anything else his grandmother

said, or take any interest in the other children or toys. The evaluators determined that he had

autism spectrum disorder (ASD) and immediately referred him for Early Intervention (EI).

Ricky was, however, already receiving EI for speech delay. The evaluator urged the EI

service coordinator to get Ricky into a specialized autism program immediately. Ricky was soon

admitted to a day autism program and received Applied Behavior Analysis (ABA) therapy

along with Occupational and Speech Therapy. His grandmother also received training.

*Names of children in Ricky’s Story have been changed.

Sheryl Dicker, J.D., has worked for 35 years on behalf of children challenged by foster care, disability,

and poverty as a legal services lawyer, foundation project director, and state official.For 16 years, she served

as the Executive Director of the NY Permanent Judicial Commission on Justice for Children. Currently, she

is a member of the pediatric faculty at Albert Einstein College of Medicine. Correspondence: sheryldicker@

optonline.net

Robert Marion, M.D., is a pediatrician and geneticist and the Executive Director of the Rose F.

Kennedy University Center for Excellence in Developmental Disabilities and the Children’s Evaluation and

Rehabilitation Center at Albert Einstein College of Medicine. He is the chief of the Divisions of Genetics

and Developmental Medicine in the Department of Pediatrics at the Children’s Hospital at Montefiore and

Professor of Pediatrics and Obstetrics and Gynecology and Women’s Health at Einstein.

Authors’ Note: The authors wish to acknowledge the excellent contributions of Cynthia Rivera,

Cardozo Law School Class of 2013, to this article.

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Juvenile and Family Court Journal 63, no. 2 (Spring) 1

© 2012 National Council of Juvenile and Family Court Judges

Based on the MDE’s findings and evaluations, the criminal charges against the parents

were dropped. The Family Court reviewed the case and kept the boys with their grandmother in

kinship foster care for six months so that Ricky could receive all the services he needed. Ricky and

his brother were then sent home to their parents. Ricky continues to receive intensive ASD services,

and the family receives counseling.

INTRODUCTION

Ricky’s story is a real Family Court case. Although most cases involving ASD may

not be as dramatic, the growing prevalence of ASD—1 in 88 children1—may signify

Ricky’s case as a harbinger of the future for juvenile and family courts. His case

underscores the importance of early identification of ASD, and demonstrates the necessity

for judges to understand the disorder as well as seeking and getting expert recommen-

dations to allow for meaningful decision making.

This article aims to provide information to juvenile and family court judges to help

them make effective decisions concerning children with ASD. Part I, written by a

pediatrician and geneticist, will present an overview of medical knowledge concerning

ASD, including its prevalence, how ASD is diagnosed, and its treatment and prognosis.

Part II will review the federal cases involving ASD, with an emphasis on those involving

the Individuals with Disabilities Education Act (IDEA), because it will help judges craft

orders for services. Part III will provide an in-depth look at the few published appellate

family law cases involving children with ASD, and will apply the medical and legal

information to issues that have or may arise in child protection, custody, visitation,

juvenile delinquency, and child support cases. Finally, the Appendix contains resources

including a checklist that can help courts gather information to assist in tailoring court

orders and rendering decisions on ASD cases.

I. OVERVIEW OF MEDICAL KNOWLEDGE CONCERNING

CHILDREN WITH ASD

ASD affects entire families. Ricky’s case demonstrates that ASD profoundly affects

the individual with the disorder; the lives of his parents, who often find themselves

unprepared to care for a child with such complex needs; his siblings, who have to live

with their brother’s ASD; the extended family, who must support the nuclear family; and

the entire community, which has to provide for the special needs of the child with ASD.

Although in the past, ASD was considered rare and relatively unimportant, the recent

explosive rise in the prevalence of ASD has turned the condition into one of the most

common intellectual and behavioral disabilities in the United States.2Thus, anyone

1See Ctrs.for Disease Control &Prevention,Autism Spectrum Disorders:Data &

Statistics, (March 29, 2012), http://www.cdc.gov/ncbddd/autism/data.html#prevalence. (“About 1 in 88

children has been identified with an autism spectrum disorder (ASD) according to estimates from CDC’s

Autism and Developmental Disabilities Monitoring (ADDM) Network”).

2 Catherine Rice et al., Prevalence of Autism Disorders—Autism and Developmental Disabilities Moni-

toring Network, United States, 58(SS10) MMWR 1-20 (2006).

2 | JUVENILE AND FAMILY COURT JOURNAL / Spring 2012