Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services

Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School Disrict’s Retaliatory Acts Against Students and Parents by filing false claims of child abuse with the Department of Children and Family Services.

See link to News Article here: http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/

2009

  1. SMMUSD vs. Student

By Debra Shepherd

Good evening Council members. I am the parent of a child in general education and a child who requires special education services. I am also a member of the Working Group.

Although the non-disclosure agreements are no longer being used to my knowledge, the environment that brought about the use of those agreements still exists.

When a problem arises, there does not seem to be an ability to resolve the problem without input from the attorneys. Since November of 2008, the District has been more adversarial toward my family by threatening me with due process litigation at tax payers’ expense. The SMMUSD refuses to even acknowledge that my daughter has an autism spectrum disorder despite multiple pages of detailed assessments from UCLA in a school setting that have been a part of my child’s records for the last 4 years.

The District is also attempting to take needed services and accommodations out of my child’s educational program. I had to fight for two years for my daughter to receive occupational therapy services.

My extended family has also traveled thousands of miles to help me with these issues. The SMMUSD would rather spend thousands of tax payer dollars suing me than pay for a needed assessment for my child or provide her with a free and appropriate education as mandated by law.

I thought that we had reached our lowest point in the journey when school staff filed a false report against me with child services in retaliation against me for hiring an attorney. My youngest child is still not recovered from the trauma of that incident. I am also disturbed by the number of families of color that have left the district. When families of color complain about how they are treated by the district, their address is verified. This whole situation has taken a toll on my health and the well-being of my family.

2014

United States District Court for the Central District of California lawsuit:

      2. Student v Wendy Wax Gellis & Santa Monica Malibu Unified School District:

Fast forward to 2014, and this time the SMMUSD is once again being accused in Federal Court of the exact same form of retaliatory conduct against another family specifically because of their advocacy on behalf of their child. The family alleges that the SMMUSD’s common plan was/is to intentionally harass and retaliate against the Plaintiffs for their currently pending tort complaint and for their multiple OCR complaints.

The family alleges that an example of retaliatory action by the SMMUSD taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).

The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.

The content of Gellis’ report to DCFS was defamatory, reckless, false, and not made in good faith and was for intentional retaliatory purposes as a result of Parents federally protected advocacy on behalf of their child.

The family alleges that Wendy Wax Gellis knowingly lied about the alleged victims absence from school on December 18, 2013, when in fact he was present and available to be spoken to. Gellis used as pretext the fabricated story of a student with a history of habitual lying and psychological issues. This same student had even fabricated her own attempted suicide at school and was suspended for doing so, all of which Gellis was aware of.

The California Suspected Child Abuse Report Form specifically asks the mandated reporter to summarize what they OBSERVED or what the victim said to mandated Reporter. (“What victim(s) said/what the mandated reporter observed/what person accompanying the victim(s) said/similar or past incidents involving the victim(s) or suspect”) Wendy Wax Gellis intentionally chose not to observe or hear anything from the alleged victim solely so she could cause all of the Plaintiffs’ emotional harm.

This filing was a blatant abuse of process as Wendy Wax Gellis and the SMMUSD never observed anything and heard nothing from the alleged victim prior to making this retaliatory report to child services and the police.

The family alleges that the SMMUSD and Wendy Wax Gellis knew exactly what they were doing when they intentionally chose not to speak to the alleged victim and caused all of the family great duress by forcing them to be subjected to the intrusive investigations of both the Police and DCFS.

The family alleges that the SMMUSD and its employees are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police. A mandated reporter’s immunity is limited to child abuse claims that are based upon a reasonable suspicion and does not provide immunity for those who show a reckless disregard for the truth of the matters asserted.

The family continues to fear that the SMMUSD and staff will continue to take further retaliatory actions against them.

3. STUDENT vs. MARK KELLY & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Disability Discrimination

Plaintiffs allege that Mark Kelly’s conduct in baiting student was so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,” Mintz, 905 P.2d at 563. Mark Kelly’s knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition rises to both extreme and outrageous conduct.”  (“eggshell plaintiff” principle)

Some students may have vulnerabilities which necessitate a greater degree of caution on the part of school districts and their employees. In M.W. v. Panama Buena Vista Union School Dist., supra,

Abuse of Power

The extreme and outrageous conduct may take place in the course of a relationship in which the defendant holds authority or other power over the plaintiff or the plaintiff’s interests. If the authority — such as police officers, school authorities, landlords, and collecting creditor — abuse their positions in some extreme manner, they may be liable to the plaintiff for IIED.

4. PROFESSOR MICHAEL CHWE vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT

Verified Petition for Writ of Mandate Directed to Santa Monica Malibu Unified School District Ordering Compliance with the California Public Records Act

http://www.jdsupra.com/legalnews/verified-petition-for-writ-of-mandate-di-72936/

See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:

dwt20110223

The Santa Monica Malibu Unified School District Was Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers

http://www.jdsupra.com/legalnews/the-santa-monica-malibu-unified-school-d-42102/

See pdf attachment to the Court of Appeals of the State of California, Second Appellate District’s landmark ruling in Professor Chwe’s lawsuit against the Santa Monica Malibu Unified School District:

B231787-1

The Court of Appeal of the State of California, Second Appellate District, ruled  that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.”

In Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.) the defense representing the Burbank Unified School District asserted attorney-client privilege and the work-product doctrine as grounds for refusing to turn over the file from a investigation report.
The Second District Court of Appeal ordered production of the Sandhu investigative file, holding that disclosure was essential for fair adjudication of the action. (Baez v. Superior Court, 2008 WL 5394067 (Cal. Ct. App.).) Case Number B208294  Description: Petition granted by opinion

See pdf attachment:

SMMUSD IRRESPONSIBILITY ENDANGERS OUR CHILDREN

See link to many other troubling issues with the Santa Monica Malibu Unified School District:

http://chwe.net/safety/failures.html

The Santa Monica Malibu Unified School District demonstrates a consistent pattern of evading responsibility for child safety. The SMMUSD has refused to answer questions about teachers who have sexually abused and sexually harassed children, failed to inform parents when their children have been victims of potentially criminal harassment, destroyed evidence concerning harassment of children, asked parents to destroy emails and not talk to each other about teacher sexual harassment of children, removed evidence of child abuse from its own records, impugned the testimony of its own employees who report child abuse, ordered teacher’s aides to not talk to parents, tried to intimidate students and parents, tried to mislead parents about their legal rights, publicly misrepresented its own legal obligations, and violated California state law.

1. In November 2011, the parents of four children accused Jennifer Becker, Juan Cabrillo Elementary special education teacher, of abusing their children. Four teacher’s aides witnessed these actions and the case is being investigated by the Los Angeles County Special Victims Bureau. SMMUSD administrators responded to only one of the many reported incidents and ignored the others. Sara Woolverton, SMMUSD special education director, told parents that the four teacher’s aides are not credible because they are committing a “mutiny.” http://chwe.net/safety/becker/

2. In May 2011, two Santa Monica HS students on the wrestling team locked an African American teammate to a locker, shouting “Slave for sale” and displaying a noose. They are currently being investigated on hate crime charges. Santa Monica HS administrators failed to inform the victim’s mother of the incident, tried to intimidate the victim by telling him that the wrestling program might be canceled, and destroyed cell phone pictures taken by other students of the noose. http://www.santamonicadispatch.com/2011/06/smmusd-said-to-deny-civil-rights-of-students/

3. Ari Marken, Santa Monica HS teacher, sexually harassed a thirteen-­‐year-­‐old girl in December 2008. The SMMUSD has refused to release any information about Mr. Marken’s violation, in violation of California state law, and illegally delayed its response in order to allow Mr. Marken to try to stop or further delay the release of this information. http://chwe.net/safety/marken/

4. Thomas Beltran, former Lincoln MS teacher, was convicted in December 2008 of sexually molesting eleven Lincoln students over a period of more than ten years. However, a student complained about Mr. Beltran two years earlier, in March 2006. Even though this March 2006 complaint was serious enough to deserve a police investigation, the SMMUSD removed all records of this complaint and claimed complete ignorance after Mr. Beltran was arrested. The SMMUSD has refused to answer any questions about its handling of the March 2006 complaint. http://chwe.net/safety/beltran/

5. Carl Hammer, former Santa Monica HS band director, was convicted of a felony involving a fourteen-­‐year-­‐old girl in June 2005. After he was fired from his position in the SMMUSD, he continued to be paid by the Santa Monica HS band program to write musical arrangements for the band, using money from parent donations, with the full knowledge of SMMUSD administrators. No SMMUSD staff member has ever taken responsibility for re-­‐hiring Dr. Hammer after his conviction. http://chwe.net/safety/hammer/

6. Mike Hearn, former Santa Monica HS assistant coach, was convicted in October 2005 on nine sex-­‐related felony charges involving two 15-­‐year-­‐old Santa Monica HS students and another 17-­‐year-­‐old girl. http://chwe.net/safety/hearn/smdp100605a.pdf

On May 21, 2008, ten parents wrote a letter to SMMUSD Supt. Dianne Talarico asking 14 questions about the SMMUSD’s handling of the case of Lincoln MS teacher Thomas Beltran, who was later convicted of sexually molesting eleven Lincoln students over a period of more than ten years. On May 30, 2008, Supt. Talarico responded saying that “The active investigation status of this case prohibits the district from responding to many of your questions at this time.” We never received a further response. On September 2, 2010, long after the criminal case against Mr. Beltran was resolved, I wrote to Superintendent Tim Cuneo asking for the district to now answer our questions. Supt. Cuneo never responded. http://chwe.net/safety/beltran/chwe20080521.pdf

On December 7, 2010, over 150 SMMUSD parents wrote a letter to Supt. Tim Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about Mr. Ari Marken, a Santa Monica HS teacher who was found by the SMMUSD to have sexually harassed a thirteen-year-old ninth grade girl in one of his geometry classes. Supt. Cuneo and Dr. Pedroza did not respond. (http://chwe.net/safety/marken/). The parents of the girl have never been given any information about the results of the SMMUSD investigation apart from this letter saying that Mr. Marken violated SMMUSD policy 5145.7. However on January 24, 2012, the Court of Appeal of the State of California, Second Appellate District, ruled  that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.” See http://chwe.net/safety/marken/marken.pdf

The SMMUSD has destroyed evidence concerning harassment of children

Several Santa Monica HS students took cell phone pictures of the noose in the wrestling team practice room. These pictures were essential evidence, as the display of a noose to terrorize another person is a specific crime under California Penal Code section 11411. However, without reporting the matter to the police, Santa Monica HS administrators confiscated students’ phones and destroyed the pictures. http://chwe.net/safety/wrestling/smdp20110617.pdf

The SMMUSD has asked parents to destroy emails and not talk to each other about teacher sexual harassment of children

On August 31, 2010, SMMUSD Supt. Tim Cuneo sent a memo to parents asking them to destroy an email which Mr. Patrick DeCarolis, attorney for the 13-year-old girl sexually harassed by Mr. Marken, sent to parents on August 30, 2010, asking for help and information. This email was communication entirely between private citizens. Supt. Cuneo felt that he had the authority to write: “Please destroy all copies of the email and do not forward it or discuss the content of the email with others.” http://chwe.net/safety/marken/cuneo20100831.pdf

The SMMUSD removed evidence of child abuse from its own records

In March 2006, an eighth-grade Lincoln MS student made a written complaint about Thomas Beltran, two years before he was arrested for sexually molesting students. However, on May 8, 2008, after Mr. Beltran’s arrest, Asst. Supt. Mike Matthews said that “this is all new to us” and said that there were no complaints about Mr. Beltran in his personnel file. One might expect that a handwritten student letter about a possibly abusive teacher would be among the most sensitive and crucial of all records kept by a school district. On February 28, 2011, SMMUSD attorneys wrote that the district did not have a copy of the student’s letter. http://chwe.net/safety/beltran/aalrr20110228.pdf

The SMMUSD has impugned the testimony of its own employees who report child abuse

On October 22, 2011, teacher’s aides in the special education classroom at Cabrillo ES informed parents that the special education teacher Jennifer Becker was abusing their children. On October 28, 2011, the parents of four students met with SMMUSD director for special education Sara Woolverton. At this meeting, Dr. Woolverton stated that the four teacher’s aides were not credible and not trustworthy, and were committing a “mutiny” because Ms. Becker was making them work. http://chwe.net/safety/becker/

The SMMUSD has ordered teacher’s aides to not talk to parents

Melissa Winder, teacher’s aide in the Cabrillo ES special education class, states that Bekah Dannelly, SMMUSD special education coordinator, visited the special education classroom to order the teacher’s aides to not talk, text, or call the parents of the special education students.

The SMMUSD has tried to intimidate students and parents

After the hate crime incident involving two members of the wrestling team, Santa Monica HS H House principal Leslie Wells told the victim that “The incident could get the whole wrestling program canceled.” The victim did not tell his mother about the incident, reportedly because he did not want “to make a big deal out of it.”

On September 8, 2010, I wrote Supt. Cuneo asking specifically whether parents are legally obligated to destroy Mr. DeCarolis’s email. In his reply on September 9, 2010, Supt. Cuneo wrote: “The further dissemination of inaccurate information, which may include slanderous accusations, comes with it legal risk or liability. As such, the District response to the recipients about the information did not mince words in describing the seriousness of further dissemination.” Supt. Cuneo did not make any specific claim that anyone said anything slanderous. His response was nothing more than an attempt to intimidate.

The agreement between the SMMUSD and the Santa Monica Malibu Classroom Teachers Association states that if a student or parent wants to file a complaint against a teacher, the teacher can request a meeting. However, “if the complainant refuses to attend the meeting, the complaint shall neither be placed in the unit member’s personnel file nor utilized in any evaluation, assignment, or disciplinary or dismissal action against the unit member.” This policy is a license for intimidation. Very few children, or even adults, would be courageous enough to make a complaint against a teacher knowing that they would have to then meet the teacher face to face.

The SMMUSD has tried to mislead parents about their legal rights

After Supt. Tim Cuneo asked parents to destroy and not talk about an email sent to them by Mr. Patrick DeCarolis concerning Mr. Ari Marken’s sexual harassment of a 13-year-old girl. One must conclude that the SMMUSD is willing to intentionally mislead parents. Of course no parent is legally obligated to destroy any emails, regardless of implications for the district. The SMMUSD has no business telling parents what they can and cannot talk about. See Chwe email to SMMUSD Superintendent dated September 8, 2010. http://chwe.net/safety/marken/chwe20100908.pdf

The SMMUSD has publicly misrepresented its own legal obligations

After over 150 parents wrote a letter on December 7, 2010 to Supt. Tim Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about the SMMUSD’s finding that Mr. Ari Marken had sexually harassed a 13-year-old girl, Supt. Cuneo stated in a newspaper interview that the SMMUSD could not legally disclose details about the case. However, in its court filings, the SMMUSD admits that they are legally required to release this information. http://chwe.net/safety/marken/aalrr20111029.pdf

The SMMUSD has violated California state law

Under California Penal Code 11165.7, school personnel are legally required to report suspected child abuse to police. In the case of the alleged abuses in the special education classroom at Cabrillo ES, no one reported Ms. Becker’s actions to the police until the parents, informed by the teacher’s aides, reported it themselves.

The SMMUSD delayed in order to allow Mr. Marken to try to obtain a court order to stop the release of the records, ignoring the California Supreme Court ruling in Filarsky v. Superior Court (2002) that “the exclusive procedure for litigating the issue of a public agency’s obligation to disclose records to a member of the public” is a lawsuit initiated by the person requesting the records. http://ag.ca.gov/publications/summary_public_records_act.pdf

By not releasing the records concerning Mr. Marken’s violation, the SMMUSD is in violation of long-standing case law, including AFSCME Employees v. Regents of University of California (1978), which establishes that records concerning the actions of public employees who have been disciplined must be disclosed to the public. http://caselaw.findlaw.com/ca-court-of-appeal/1592245.html

The agreement between the SMMUSD and the Santa Monica Malibu Classroom Teachers Association states that if a student or parent wants to file a complaint against a teacher, no record of the complaint will be kept unless the student or parent agrees to a meeting with the teacher. This violates the California Code of Regulations Title 5, Section 4621, which states that “local policies shall ensure that complainants are protected from retaliation and that the identity of a complainant alleging discrimination remain confidential as appropriate.”

https://lawofficesofbarryfagan.files.wordpress.com/2014/08/smmusd-irresponsibility-endangers-our-children.pdf

These are not the actions of an altruistic educational Agency, but rather these are the actions of a few bad apples at the SMMUSD, all of whom truly believe that they can just keep abusing process and get away with it.

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