Nebraska's "Excessive Absenteeism" Law Targets Special Needs Children

The following story was written by a Lincoln, Nebraska couple whose 10-year-old autistic daughter was targeted by Lincoln Public Schools, the Lancaster County Attorney's Office, and Child Protective Services under the guise of preventing "excessive absenteeism."  In order to protect their daughter, and because of the ongoing threat from CPS, the family wishes to remain anonymous at this time.

During the 2012-13 school year, our child missed over 20 days of school.  This was a combination of partial and full days.  Because she missed over 20 days, we were served by the county sheriff to appear in court.  The count against us stated that we lack proper parental care and failed to ensure our child’s regular and timely attendance at school.  It also stated these absences from school are negatively affecting our child’s educational progress. 

We received our summons in June, 2013.  That week, we attempted several times to reach the county attorney assigned to our case, Daniel J. Zieg, to explain our situation.  He did not return any of our phone calls, so we emailed him.  Here is a transcription of our email from June 20, 2013:

I am requesting that you dismiss (our case number). This is a result of our (child) missing more than 20 days of school during the previous school year. All of her absences were excused absences for either medical reasons or because our family was out of town. We informed the school prior to the school year and during the school year about the dates our family was going to be out of town. All homework and projects were completed on time. (Our child) is on the autism spectrum, and many of the absences were because of emotional or medical reason related to her autism. Some of her absences were partial days and some were full days. Reasons include doctor appointments, therapy and autism symptoms (high anxiety, migraines, vomiting, etc.). (Our child) also missed about a week of school because one of the paras (who has now been dismissed from the school) caused (our child) to have great stress and anxiety. As a result, she self-inflicted herself in her throat and had to receive medical attention. (Our child) continually gets good grades and no teachers have complaints about her. We are active parents in our kids’ education and well being.  We can provide documentation related to the family trips, medical appointments, autism diagnosis, etc.  We appreciate your understanding.

Mr. Zieg responded to our email the next day.  This is his response:

At this point I am not willing to dismiss.  I am concerned that (your child) is being pulled from school to go on family trips.  Family trips are not an excused absence.  A family needs to exercise discretion in pulling a child from their mandatory school program to go on a trip, especially when the child is autistic as they need a structured daily program.  The information I have from the school indicates they informed you that another family trip would put you over 20 days of absence however you still chose to take the trip.

This was our email response:

I appreciate the response.  I forgot to clarify that the times we were out of town were related to my work, and we did not have control of the dates. This was unique this last school year. It had not occurred prior to this year, and we don't see that happening again in the future. Prior to the school year, the school said that it would be OK to take (our child) on the business trips so we planned accordingly. It is difficult finding someone to watch her with her autism. She is more comfortable being with us.

We did not hear another word or get another response from the county attorney.

The next day, a case worker with the Nebraska Department of Health and Human Services (Child Protective Services) came to our house.  We were not home, but he left his business card with a hand written note on the back of the card that read:  Could you please call me as soon as you can.  We called him, and he stated that he wanted to interview us and our child – separately!  We told him no and that we were going to retain an attorney.  The next day, he called our house again, insisting that he interview us and our child. Again, we told him no and that we were going to retain an attorney. 

A couple days later, I did retain a private attorney.  We appeared in court in July 2013.  Present in the court room were two case workers from the Nebraska Department of Health and Human Services, an attorney from the Nebraska Department of Health and Human Services, the county attorney handling our case, the judge, the court reporter and an employee of Legal Aid as Guardian ad Litem for the minor child.  That’s seven people paid by our tax dollars to appear in court for our case!

Before entering the courtroom, one of the case workers from the Nebraska Department of Health and Human Services made a comment to us that we shouldn’t even be there.  I asked then why were we there, but did not get a response.

Our attorney requested that the case be continued until October 2013.  All parties agreed and an October 16 court date was set.  For three months, we were under enormous stress because of the accusations of neglect against us.  Our attorney told us that he attempted to contact the county attorney numerous times but never received a response.  On the morning of our October 16 court appearance, the county attorney finally notified our attorney that our case was dismissed.  Back in June, our case was urgent enough that CPS was called, but suddenly our case is so unimportant that it was dismissed?  Why is that?  What was the county attorney trying to accomplish?  Was he trying to intimidate us into never keeping our daughter home from school again?

On October 22, a few days after our case was officially dismissed by the county attorney and the judge, we received another call from the Nebraska Department of Health and Human Services case worker asking to interview our child again – knowing full well our case had been dismissed.  We told him no.  We notified our attorney.  This infuriates us!  Why are we continuing to be harassed after our case was dismissed?

Here are some excerpts from a Nebraska Legislature Judiciary Committee hearing on February 13, 2012 regarding the truancy law. This was the hearing to discuss the amendment to LB800. Senator Brad Ashford, the Senator behind this law, stated that “It was never the intent of this committee that the 20-day review be some prosecutorial effort to bring unexcused students into one big group with excused absences and start throwing them into the juvenile system.”  During that same hearing, Alicia Henderson of the Lancaster County Attorney’s Office stated that their office is dismissing referrals that are excused for illness and travel with parents.  This is obviously a lie!

So the bottom line is we had to spend nearly $1000 for a private attorney for something we had worked out with the school, as well as endure months of fear and stress for no reason.  The school knows our family situation and our child’s special needs, yet they chose to turn our ten-year-old autistic daughter over to law enforcement.  Worse yet, the county attorney decided to file charges and someone even filed a CPS report, as if we are abusive parents because we chose to take our special needs child with us on a business trip!

We are not against education.  We have college degrees ourselves. We are against this ridiculous law and its complete infringement on parental rights!

How dare Lincoln Public Schools and a young county attorney (who appears to be fresh out of law school) presume to judge the decisions we make in the best interests of our own child!  How dare a county attorney tell us, the parents, that our daughter shouldn’t go on a trip with us because autistic children need a “structured daily program”!  He doesn’t know what our child needs, we do.  He is a prosecutor who has never met our child, we are her parents who have raised her and loved her and advocated for her needs her entire life.  They are threatening our life!

And think of all the tax dollars wasted on our case alone. These dollars could be better used to help our Nebraska kids, especially kids with special needs.

This law is wrong and it needs to be repealed.  I have a meeting scheduled with our state senator and we will be sharing our story and asking her to help get rid of this terrible law that has harmed our family and many others.

UPDATE: 

On October 26, we received certified mail from the Nebraska Department of Health and Human Services.  The letter stated that the case against us was considered “unfounded.”  The report we  were named in was alleging Physical Neglect of our daughter.  Are you kidding me?  Physical Neglect because we took her on our business trips and because she missed school for medical reasons!  This is absurd!  The definition of Physical Neglect on the Nebraska Department of Health and Human Services’ Web site is when a parent does not provide basic needs or a safe place to live. This is a complete lie!