Homeschooling Mother Vindicated in Court
The Anonymous Tip—Can Children with Learning Disabilities
Homeschool?
When a social services investigator arrived at her house in the fall
of 2011, homeschooling mother Josslyn Kittinger (names changed to
protect privacy) called Home School Legal Defense Association and
spoke with attorney Mike Donnelly. After she politely asked the
social worker to leave, as recommended by attorney Donnelly, the
social worker complied with her request.
Nevertheless, the social worker did not close the investigation
against the family. As it turns out, some of the Kittinger children
have learning disabilities, and the social worker—as well as the
person who called in the anonymous tip—believed the children’s
special needs would be better met in public school. During the
course of her involvement with the state, Ms. Kittinger’s neighbors,
the social worker, and prosecutors would question her right to
homeschool over the issue of her children’s learning disabilities.
According to attorney Donnelly, “Many families homeschool their
children who have learning disabilities because they find that the
children’s needs are better met in a one-on-one homeschool
setting—research shows that this is true. It is intolerable that
someone would question a family’s right to homeschool simply because
their children have a learning disability.”
The Court Order to Seize the Children
Several days later, based on a neighbor’s comment and a drive past
the Kittinger’s house, the social worker erroneously concluded that
the family intended to flee the state. The social worker sought and
obtained a verbal order from the local court to take the Kittinger
children into state custody. Fortunately, the children were never
taken as Ms. Kittinger was willing to demonstrate that she was
homeschooling legally and had no intention of leaving the state.
Nevertheless, because the social worker had contacted the court and
received a court order, a prosecutor proceeded to open a case
against Ms. Kittinger for educational neglect.
The Court Case
HSLDA’s local counsel James Rouse defended Ms. Kittinger at her
initial court hearing. At Mr. Rouse’s urging, the court nullified
the verbal order given to the social worker to take the Kittinger
children into custody. In Colorado, homeschoolers have two options
to legally homeschool. They can either file an annual notification
directly with a school district, or they can enroll in an
independent school. Mr. Rouse demonstrated that Ms. Kittinger was
homeschooling legally in Colorado with an independent school.
Despite this evidence, the prosecutor refused to dismiss the
educational neglect case. A total of three hearings were held during
the fall of 2011 and a five-day trial was scheduled for December and
March. For the December trial date, attorney Donnelly represented
Ms. Kittinger.
Victory!
During the first day of trial, HSLDA defended Ms. Kittinger’s right
to homeschool, calling Steven Duvall, Ph.D., as an expert witness to
demonstrate that the Kittinger children were receiving an adequate
education under the law. The trial day in December was only the
first of the scheduled five-day trial. In March, attorney Donnelly
returned to Colorado to represent the Kittinger family again.
This time, however, after multiple visits with the family, the
social worker agreed that no educational neglect was transpiring and
convinced the prosecutor that the case was not worth pursuing just
hours before the second day of the trial started. The case was
settled, and Ms. Kittinger was able to continue homeschooling her
children.
According to attorney Donnelly, the Kittinger case is significant.
“This victory is important for all homeschooling parents, because it
strengthens the idea that all children have the right to be
homeschooled and the need for HSLDA,” he said. “How would this
single mother have defended herself? The resources needed for this
were far beyond her own means, and most court-appointed defenders
simply do not have the experience or sympathy to aggressively defend
a mom homeschooling in this situation. I consider it a privilege to
have been allowed to defend this mom who was doing what I believe
was indeed best for her children!”
• • •
HSLDA Social Services
Contact Policy
We desire to advise our members in every contact with a social
worker and/or police officer in investigations resulting from
allegations of abuse or neglect. If homeschooling is an issue, we
will represent our member families until the issue is resolved. On
Fourth Amendment unreasonable search and seizure issues, HSLDA will
advise our members whenever the privacy of their home is violated by
forced or coerced entry for the purpose of an unsubstantiated
investigation. HSLDA membership benefits do not extend to court
actions resulting from non-homeschooling matters. However, in
circumstances where there is a clear violation of the Fourth
Amendment, HSLDA may, as we have done in the past, choose to take
the case in an effort to establish legal precedent.
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