Health

Sunday, Jun 24 2012 04:00 AM

They can't get along, so taxpayers cough up $1M

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    By Michael Fagans / The Californian

    Larry, Darlene and Preston McCue, 4, photographed at The Bakersfield Californian on Tuesday morning.

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By LOIS HENRY, Californian columnist lhenry@bakersfield.com

Is it really possible that a child was taken from his parents for five months, igniting a four-year legal battle that resulted in several costly settlements and one, if not more, changes to county policy all because of a fight over nuts?

Oh yeah, it's possible.

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Read archived columns by Lois Henry at Bakersfield.com/henry.

COUNTY POLICY CHANGES

In fact, I think you can almost pinpoint the start of this ugly fracas to the moment South Fork Union School District Superintendent Robin Shive decided to eliminate the elementary school cafeteria's nut-free table in the 2007-08 school year.

That one decision began a series of events that led to taxpayers shelling out a $1 million settlement for misdeeds by Kern County Child Protective Services. The South Fork district paid its own $35,000.

Not to mention, of course, the psychological damage done to a 7-year-old little boy already struggling with numerous medical issues.

And none of it had to happen.

 

***

 

A nut-free table had been set up by the elementary school in the 2006-07 school year for then 6-year-old Preston McCue.

He had suffered almost all his life with various medical ailments and that year had a near-fatal reaction to a cashew nut that sent him to the hospital. From that day forward Preston has carried an EpiPen, an auto injector that treats symptoms of a serious allergic attack, around his waist at all times.

His mom, Darlene McCue, talked to the school about food precautions. The nut-free table was established in the cafeteria soon after. He could eat there with the other kids as long as they didn't bring anything that had nuts or nut products to the table.

Everything went well that year, Darlene said.

The next year, though, South Fork Union Superintendent Shive said the school couldn't continue to provide Preston that table. He was made to eat lunch in the office.

Preston cried and felt he was being punished. Eventually the other kids, being kids, started picking on him for his perceived special treatment.

Darlene said she got nowhere with Shive despite numerous meetings and even attempts to talk to the school board.

She was never informed, she says, that there were other formal steps she could have taken, such as having Preston's allergy doctor fill out a medical statement requesting accommodations or contacting the State Board of Education.

She eventually did call the Ed Board after Preston had another, milder reaction when he merely touched a peanut butter cookie, which was served during a school event on Feb. 28, 2008. The Ed Board reprimanded the district, according to past Californian articles. It was too little too late, however, as from what I can tell, the district, ignoring plentiful evidence, had already decided Darlene was a troublemaker.

I tried to speak to Superintendent Shive but couldn't. The district directed all media calls to attorney Anthony DeMaria.

And he said, in effect, "no big deal."

The relatively low settlement amount, he argued, reflects the lack of merit in this case, in which numerous counts were whittled down over the years.

"All our motions to dismiss had been successful and we were very confident we would have had the last few issues dismissed as well," he said.

The allegations regarding the school's lackadaisical attitude toward the boy's nut allergies, he said, had been dismissed early on because the parents hadn't sought an administrative remedy, meaning you can't sue complaining you didn't get a fair shake from the district if you never went through all the steps to get that shake.

 

***

 

To a certain extent, the nut-no-nut squabble may have come down to personalities.

Darlene is plain spoken, blunt, even, and willing to go to the mat for her only child. Relentless would be an accurate description of her pursuit of a nut-free table, if not a nut-free school.

Shive was implacable, insisting the only accommodation for Preston was for him to eat in the office.

As you might imagine, the relationship soured.

Meanwhile, Preston had a very rough year, medically speaking. He'd missed a lot of school from a bout with flu, then viral meningitis and finally a blood infection. In January 2008 he was evaluated at UCLA for complex regional pain syndrome.

Doctors were zeroing in on his food allergies and treatments were showing success. But all the hospitalizations, illnesses and precautions were wearing on the little boy.

One of his UCLA doctors brought in a psychologist, Jessica Borelli, to evaluate how he was coping.

She made her first call on February 1, 2008 to Preston's 2nd grade teacher, Shannon Damron.

According to the report, Damron tells Borelli "I have wondered if mom wasn't giving him something to make him sick."

And that's just the start. Damron went on at length describing Darlene as overprotective and overbearing. Preston being sick, Damron says, seems to give Darlene an "identity."

The calls continued through February and Damron even initiated one call to Borelli.

The information, according to Borelli's report, continued to be mostly about how teacher Damron viewed Darlene's behavior. Rarely was it how she viewed Preston's.

On Feb. 25, 2008 UCLA filed a referral with Kern County Child Protective Services suggesting Darlene might have been subjecting Preston to unnecessary medical procedures.

Ten days later, on March 6, 2008, Preston was taken from school and put into Jamison Center, the county's center for abused and neglected kids.

Hours later, a Sheriff's deputy and social worker showed up at Darlene's house and told her they needed to talk about Preston.

"I collapsed to the ground, I just collapsed," Darlene said, still choking back tears at the memory. "I thought they were going to tell me my child was dead."

Far from an ending, this was just the beginning of the family's ordeal.

Turns out no one got Preston's full medical records prior to taking him. And though law enforcement did interview Damron and Shive, then educators don't appear to have produced the medical records that the school had on hand and documented all of the boy's absences.

The South Fork District's attorney, DeMaria told me the school district can't be held responsible for the failings of CPS or UCLA.

School personnel, he said, were simply answering questions from UCLA and later Kern County authorities. UCLA called CPS, not the school, he reminded.

"The school is a mandatory reporter (of child abuse) as is UCLA. The school was legally compelled to respond to those questions and that is all they did."

Not quite all.

My reporting shows that in the days before Preston was taken, his school file was flooded with notes from teachers and even the school secretary that appear to add weight to the idea Darlene was making up or inflating the seriousness of Preston's medical conditions.

There's a note from Sabine Mixon, a kindergarten teacher, dated March 5, 2008 saying that the day before, March 4, she'd come in the office and the McCues were there with Preston heating up his food. Upon taking a bite, Mixon writes, Preston said "there is something in this," after which Darlene and Larry acted frantic.

Damron, Preston's teacher at the time, added several notes to the file dated March 4 and 5, 2008. One says Darlene told her Preston was allergic to "lidocaine" and needed to undergo dental work without pain meds. Another says she saw Darlene feed him ravioli with tomato sauce, though Darlene had said he was allergic to tomatoes. Yet another says Preston had a bandage on his hand and when she asked him about it Preston said he'd cut his hand and his mom had poured acid on it.

Really? If Damron or anyone at the school had truly believed a mom was pouring acid on her kid, they were required to go to the cops, not stick a silly note in his file. Sheesh.

Despite DeMaria's insistence that the school was an innocent bystander, I think it's clear they were at least guilty of piling on.

 

***

 

But it doesn't end there.

In the most outrageous example of apparent meddling by South Fork, it looks like the school district tried to have the McCue's educational decision-making rights over their son stripped away.

That's a very big deal.

Even after CPS takes a child, parents still retain educational and medical decision making-rights over their children. It requires a court order to remove those rights.

The back and forth is a little confusing, but the timing is important here.

After Preston was taken on March 6, 2008, Darlene was still contacting South Fork personnel. School officials had an attorney send her a letter on March 24 telling her to stop contacting the school.

The letter also said Preston was no longer enrolled at South Fork. That was news to the McCues, who had never given their permission for his school to be changed.

They had their attorney fire back a letter saying they indeed retained educational decision-making rights over Preston and no one had a right to disenroll him from South Fork. A lawyer for the district replied by letter on April 29, acknowledging that fact and noting that Darlene could continue to communicate with Supt. Shive.

Yet even that didn't settle things. Two weeks later the district attacked again.

In an email, the district's lawyer urged Kathleen Furlong, who was the attorney appointed for Preston and was deeply involved in the CPS case, to begin the process of revoking the McCues' educational rights.

"One of the MOST important things that I believe you can do for this child is to convince the court to appoint a person to hold his educational rights," attorney Stacy Inman wrote on behalf of the district.

Furlong was taken aback by the assault. Correspondence shows that she ran Inman's email by two other attorneys involved in the CPS case.

"I got this Email from the school. They want me to take away the parent's educational rights. I know they are a bother but I am really surprised that the district wants the parents' educational rights taken," Furlong writes.

South Fork "just answered questions?" I don't think so. It looks to me as if they were doing everything possible to get rid of this family. If they forced out Preston, they seem to have been thinking, they would no longer have to deal with his parents.

Perhaps the school's behind-the-scenes involvement couldn't be legally proven to have resulted in Preston's and the McCues' rights being violated, but that doesn't make it any less nasty and underhanded.

 

***

 

In the end, the McCues decided to settle for a number of reasons. The stress of Preston's being taken and ensuing legal fight took its toll physically. Larry McCue, in particular, had several serious issues develop. He's quite a bit older than Darlene and they were worried he simply wouldn't make it through another five years of fighting.

Preston, now 11, is a quiet kid who listens closely and smiles easily at small jokes. His doctors have finally identified his many allergies and he's on a regimen of mediation that keeps them in check so he's able to live a normal life with some precautions.

He's no longer in the South Fork district and attends Woodrow Wallace Elementary School in the Kernville Union School Disrict, where he's been since the start of school in 2008. Shive was since been hired as superintendent for Kernville.

So far, Darlene said Woodrow Wallace has been a dream. The principal and cafeteria manager make sure a nut free table is available at all meal times and they notify the McCues ahead of time if the cafeteria serves any kind of nut product so other arrangements can be made for Preston.

Meanwhile, South Fork Union schools continue serving nuts.

DeMaria told me there aren't any children with nut allergies in the district now. But, he said, the district would make accommodation for a student who requested it.

After everything that's happened, I would certainly hope so.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com Californian radio

Lois Henry hosts Californian Radio every Wednesday on KERN 1180 AM from 9 to 10 a.m. You can get your two cents in by calling 842-KERN. In the midst of settling with the McCue family for $1 million, the County of Kern also initiated changes to Child Protective Services policies with regards to taking children.

Prior to this case, social workers simply took children they felt were in danger without a warrant.

However, the law is very clear that a warrant is required unless the social worker believes the child is in "imminent" danger, meaning they could be injured or killed within the few hours it would take to get a warrant.

That didn't happen with Preston McCue, who was taken directly from his school without a warrant and no prior notification of his parents.

The county is now reworking its warrant policy. A draft is written but must be approved by the Presiding Judge of Juvenile Court, according to the Department of Human Services (DHS).

In most cases, social workers must also notify parents before contacting a student at school. Preston's parents were not notified before he was taken from his school campus in 2008.

That policy was changed after a 2009 9th Circuit Court of Appeal case that didn't involve Kern County, according to DHS.

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