CHARLESTON – In a separate opinion relating to the state Supreme Court's decision to overrule a circuit judge's ruling for a school board to provide a wheelchair-bound boy with a full-time nurse, Justice Margaret Workman faulted her colleagues for not explaining the proper remedy available to compensate the boy.
The court this week issued an opinion that said the Putnam County Board of Education did not have to abide by the ruling from Wood Circuit Judge J.D. Beane in the case of C.E.M., a 13-year-old sixth grader at Winfield Middle School.
The state Department of Health and Human Resources had sought a full-time nurse for the boy, arguing that he is prone to unexpected seizures that required a qualified medical official to administer medication.
The justices, in blocking Beane's ruling, said that the Putnam school board was not properly notified of the hearing where the DHHR made this argument.
While Workman said she agrees with her colleagues' decision based on the due process factor, but she dissents because the opinion did not offer advice to the parties that are trying to help C.E.M.
Workman said state school board policy and state code allow for more proper and expedient resolutions to enforcement of or modifications to the individualized education plans of special needs children – not in the context of an abuse and neglect proceeding, as was the case with C.E.M.
C.E.M. became a ward of the state shortly after his premature birth, court records say.
Workman faulted her colleagues for not discussing these other options in the opinion. And, she notes, C.E.M.'s health problems still remain at issue.
"Given the lack of any clarification on the issue, it is probable that (DHHR) will re-litigate this issue in Wood County (this time with notice to Putnam County BOE), again in the context of an abuse and neglect proceeding, which clearly is not the proper means of seeking such relief," Workman wrote.
Workman added, "If that happens, the case will in all likelihood wind up again in this court. This could be death (literally) by due process for this child. The failure of the opinion to address the fact that existing law provides a method for the enforcement or modification of an IEP that is separate and distinct from an abuse and neglect proceeding leaves to the parties (and our law) completely in the dark."
Workman says the court's opinion leaves the impression that jurisdiction lies with the Wood Circuit Court.
"That is just not the case," Workman said. "Absent jurisdiction to hear the matter, the Circuit Court of Wood County exceeded its legitimate powers and the majority's grant of a writ of prohibition should have encompassed this determination."
Workman sums up that it took nearly seven months for the court to rule on the challenge to Beane's order.
"The fate of this boy should not have been left twisting in the wind, with all parties now guessing as to how to proceed, while his life may be in danger," Workman wrote. "This court should have ordered that the matter be remanded to the proper court with proper notice to all parties and be resolved in an expeditious manner."
Supreme Court case number: 34617