Petition for Writ of Certiorari — Bryant v. Waltham School Committee

Supreme Court brief1999

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Supreme Court, 0.8,

FILED

89 1 3 JUN 2 4 1999

OFFICE OF THE CLERK

No.

In the

Supreme Court of the United States

George Greeley, Kim Elizabeth,

George Nicholas, Nyssa Gale: Bryant

Petitioners

Waltham School Committee,

Associate Justice Margaret S. Fearey,

Respondents

On petition for a Writ of Certiorari to

Massachusetts Supreme Judicial Court,

Petition for Writ of Certiorari

George Greeley: Bryant,

Kim Elizabeth: Bryant,

Mail location:

Attention: Joseph Adams

Friends of the Constitution

Post Office Box 620115

Newton Lower Falls, Massachusetts

Questions Presented for Review

Question 1. Where the republican frame of government

prohibits the actions of government officers from being

repugnant and Contrary to the Declaration of Rights of

the Inhabitants contained in the Massachusetts

Constitution, may government officers act in such

manner to enforce a claimed “compelling state interest’

absent Constitutional and statutory authority, and in

violation of the unalienable rights of the Inhabitants to:

a) freely profess and exercise their religion per the

Massachusetts Constitution, Part |, Article II:

b) refuse enjoinder of attendance upon the instructions

of public teachers if there be none upon which they

may conscientiously and conveniently attend per

Massachusetts Constitution, Part |, Article Ill:

C) be fully informed of the Charges against and meet

the witnesses against them face to face, them per

Massachusetts Constitution, Part |, Article XII:

d) be controulable only by law and not opinion per

Massachusetts Constitution, Part |, Article X, and to

require that the Judicial Department may not

exercise the authorities of the Legislative per

Massachusetts Constitution, Part |, Article XXX

€) be fully heard in his defence by himself, or his

council, at his election per Massachusetts

Constitution, Part |, Article XII:

f) not be arrested, imprisoned, despoiled, or depri:2d

of his property, immunities, or privileges or put out

of protection of law without jury of peers per

Massachusetts Constitution, Part |, Article XII:

g) enjoy and defend their lives and liberties, including

the liberty to rear their children and to seek their

safety and happiness per Massachusetts

Constitution, Part |, Article |

h) not be compelled to produce evidence per Article XI

i) be free from unreasonable search and seizure of

person, papers and all possessions without warrant

issued upon foundation supported by oath or

affirmation per Massachusetts Constitution, Part I,

Article XIV?

Question 2. Where the Alaska Statute, AS 14.30.010

stands as evidence of a codification of law that protects

these natural and unalienable rights, may government

officers ignore the same in order to support their claim ~

of a “compelling state interest” and thus derogate the

Massachusetts Constitution?

List of Parties

The names of all parties are listed in the caption of this

case and no parent companies or nonwholly owned

subsidiaries are known to the Petitioners.

Table of Contents

Questions Presented for Review i

List of Parties iii

Table of Contents iv

Table of Cited Authorities v

Jurisdiction 1

Constitutional Provisions, and Statues —

Statement of the Case 2

Argument in Support of a Grant of this Writ............. 7

_ Appendix A 14

CARE AND PROTECTION OF BERT & another. 14

NOTICE OF DENIAL OF PETITION FOR

ERR ane aiearrr ne tontee vor NMEMaOnINENee eID 16

Appendix B 17

IN RE: CARE AND PROTECTION ....W0000.000000... 17

Appendix C 22

FINDINGS OF FACT AND CONCLUSIONS OF

UNE sii cs pueicneeecce aonceasate sveasnaondimasnacicacneen 22

IIIT CII oo si cccicecccacsstncsvecsemsensntovsianeam 22

F_UN SO AEN EN EI LaRN ONCE 25

Te. GPCIINND GU GID noises ccccsiicsvconcnececoceeeconconsstpnes 36

Appendix D 52

Massachusetts G. L. 119:24. oe 56

AFFIDAVIT OF PAMELA FINLEY... 58

Appendix E. 61

gk NTT RENAN HRA 61

: Vv

Table of Cited Authorities

Constitutional Provisions

Massachusetts Constitution, Part |, Article|... i, 2, 53

Massachusetts Constitution, Part |, Article Il... i, 2, 53

Massachusetts Constitution, Part |, Article IIl........ i, 2, 55

Massachusetts Constitution, Part |, Article VII... 11, 20

Massachusetts Constitution, Part |, Article X......... i, 2

Massachusetts Constitution, Part |, Article XII... i, 2, 66

Massachusetts Constitution, Part |, Article XIVii, 54, 69,

Massachusetts Constitution, Part !, Article XX... 72

Massachusetts Constitution, Part |, Article XXX ... i, 2, 20

Massachusetts Constitution, part Il, chapter. 5, § 219,

37, 69, 70

Massachusetts Constitution, Part the Second, Chapter

I, Section |, Article IV ooo. cccccoceceeece cc 62, 67

Massachusetts Constitution, Preamble... 11, 52, 76

united States Constitution Fourteenth Amendment4?2, 66

united States Constitution Fourth Amendment... 66

united States Constitution, Article IV, section 4... 1,2, 11

united States Constitution, First Amendment... 66

united States Constitution, Ninth Amendment....... 1,2,8

united States Constitution, Tenth Amendment... 1,2,8

Statutes

Alaska Statute, AS 14.30.010 0020000. ii, 5,7

Massachusetts General Law c. 119 §1 ...0...... 36

Massachusetts General Law c. 119 §29 00.0... 23

Massachusetts General Law c. 119 §51A........00000........ 30

Massachusetts General Law c. 119 §51B..................... 30

Massachusetts General Law C. 211, § 3.......... 17, 18, 21

Massachusetts General Law c. 76 §2.......... 27, 40, 43, 72

Massachusetts General Law c. 76, § 1 .................. passim

Massachusetts General Laws, Chapter 119, § 24 passim

Massachusetts General.Laws. Chapter 76..................... 3

Massachusetts General.Laws. chapter. 211, section 3 6

Massachusetts.General.Law. Chapter 119, section 51A

Petitions of the New England Home for little Wanderers

to Dispense with Consent to Adoption, 367 Mass.

Be CUNT Oe wctecenisnsscsssicetovssaniactontaatananenaaaienieaane 38, 39

Cases

Adoption of Carlos, 413 Mass. 339 (1992).................. 39

Adoption of Iris, 43 Mass. App. Ct. 95 (1997)............... 38

Adoption of Mary, 414 Mass. 705 (1993). ...........000..0... 39

Attomey General v. Bailey, 386 Mass. 367(1982)....... 45

Bezio v. Patenaude, 381 Mass. 563 (1980).................. 39

Callahan v. Westinghouse Broadcasting Co., Inc., 372

BE Ie CRF ecisesinvetscesesseicrermteuiecys caeennaee 38

Care and Protection of Charles, 399 Mass. 324 (1987)

sieseivneteqen Sivwisecenshensieeteltediineais tbat aiidendaiea nin anGe an aan passim

Custody of a Minor, 389 Mass 755 (1983)................... 40

Dunbrack V. Commonwealth, 398 Mass. 502, (1986) 18

McDuffy, et al. v. Secretary of the Executive Office of

Education, et al., 415 Mass. 545 (1993)....0000000000000... 37

Newell v. Homer, 120 Mass. 277 (1876) .....00..00000.. 38

Parents of Two Minors V. Bristol Division of the

Juvenile Court Dept, 397 Mass. 846 (1986)............. 18

Petition of the Committee of Public Welfare to Dispense

Vil

with Consent to Adoption, 383 Mass. 573 (1981) 39, 40

Pierce v. Society of Sisters, 268 U S. 510 (1925)....... 40

Planned Parenthood League of Massachusetts, Inc. v.

Operation Rescue, 406 Mass. 701 (1990)... 18

Richards v. Forrest, 278 Mass 547 (1932)... 40

Santosky v. Kramer, 455 U.S. 745 ( RE 40

Stone v. Essex County Newspapers, Inc., 367 Mass.

i ecitsecivabeah ree tea ear Net enn 38

]

Citations of the Reports of the Opinions and orders

The Opinion of the Massachusetts Supreme Judicial

Court upon review of this matter appears at Appendix A

to this petition and is reported at 429 Mass. 1001

(1999) as: “CARE AND PROTECTION OF BERT &

another’

The Opinion of the Massachusetts Supreme Judicial

Court, Single Justice Session upon review of this

matter appears at Appendix B to this petition and is

unpublished

The Findings of Fact and Conclusions of Law of the

Waltham District Court appears at appendix C to this

petition and is unpublished.

Jurisdiction

This Petition seeks to review the adjudication and order

of Associate Justice Fearey issued on July 31, 1998 in

Care and Protection of Bryant matter; the judgement of

Supreme Judicial Court Justice Ireland, on Petition for

Judicial Review affirming the original adjudication and

order on December 2, 1998; and the judgement of the

full Massachusetts Supreme Judicial Court under

further appellate review ruling Judgement affirmed on

February 12, 1998. The Massachusetts SJC "Petition

for Rehearing” denied on March 26, 1999.

The jurisdiction of the Court is invoked under the

united States Constitution, Ninth and Tenth

Amendments, and Article IV, section 4

Constitutional Provisions, and Statues

The Constitution of the Commonwealth of

Massachusetts Part the First, Preamble, Article |,

Article II, Article Ill, Article X, Article XII, and Article

XXX and others are involved in this case. Pertinent

parts of these are included in Appendix D.

Massachusetts General Laws, Chapter 119, §24, the

full text of this is included in Appendix D

Alaska Statute AS 14.30.010 the full text of this is in

Appendix D.

United States Constitution provisions involved in this

case:

a) Ninth Amendment “The enumeration in the

constitution of certain rights shall not be construed

to deny or disparage others retained by the

People.”

b) Tenth Amendment: “The powers not delegated to

the United States by the Constitution, nor

prohibited by it to the States, are reserved to the

States respectively, or to the people.”

c) Article IV, section 4. “The United States shall

guarantee to every State in this Union a

Republican Form of Government, and shall protect

each of them against Invasion;. . .”

Statement of the Case

George Nicholas and Nyssa Gale are the children of

George Greeley and Kim Elizabeth. The Waltham

School Committee and its agents have no evidence of

enrollment of either George Nicholas or Nyssa Gale in

any of the Waltham government schools.

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Mr. Daniel Doyle holds the statutorily created office of

Supervisor of Attendance and Census for the Waltham

School Department. Mr Doyle stated that in October,

1996, "...Mr. Barry, the principal at the Fitzgerald, told

me that he had received an anonymous phone call

alleging that a gentleman by the name of Mr. Bryant

had two school-aged children who were not attending

school." Mr. Doyle telephoned the family and on

November 8, 1998 spoke with Kim Elizabeth where

“Mrs. Engler, in our initial conversation, was quite clear

that she had no intention of cooperating in any way

unless | could produce a law or number of laws that

said that she -- that said she had to."

On November 8, 1996, Mr. Doyle sent a form letter for

the parents to fill out and a copy of the Waltham Policy

and Procedures regarding homeschooling, but did not

send the required law. When the Parents’ reply again

demanded law, Mr. Doyle initiated a criminal complaint

in Waltham District Court, pursuant to Massachusetts

General Laws. Chapter 76 for "failure to send child to

school. Failure to send child to school or provide proper

schooling.”

The Parents appeared in court in January 1997 and

again requested proof of authority for Mr. Doyle's

actions in the form of law. Mr. Doyle then filed

allegations of “educational neglect" with the

Department of Social Services (DSS) pursuant to

Massachusetts General Law, Chapter 119, section

591A. The DSS found the allegations of “educational

neglect" unsupported and dismissed the matter in June

1997. The charges of "failure to send” were first

changed from criminal to civil, and then dismissed upon

request of the Commonwealth, with prejudice.

On or about June 2, 1997, Mr. Doyle submitted an

affidavit in support of a Care and Protection Petition,

alleging that "Ms. Engler and Mr. Bryant are unwilling to

cooperate or provide information that their children

have received, are receiving or will receive the

necessary and proper educational care." The record is

not clear as to whether Mr. Doyle or the Waltham

School Committee is the Petitioner in the Care and

Protection matter.

In October, 1997 Attorney Lorie Kram was appointed as

Court Investigator in the matter and issued a report

stating that:

"By way of information for the Court, the

‘learner-led' approach is a well-established

avenue of education within homeschooling

literature. This ideology also serves as the basis

for various alternative schools throughout the

world. Two schools that utilize this type of

ideology are Summerhill in England and Sudbury

Valley Day School in Massachusetts.

"Because of their educational ideology,

the Engler/Bryant family does not intend to

submit their children to standardized testing:

The parents also believe that the children's work

product is their own private property and is not to

be made available for schoo! personnel.

Because the family believes in the 'learner-lead'

approach, they are not able to assess the

children's grade level, rather, they have utilized

materials presented by the Waltham School

district to indicate the areas of interest their

children have explored...."

The Attorney for the Parents, Attorney Hession,

submitted a Motion for More Definite Statement/Bill of

at Me Me a ee YR aE a

Particulars prior to the start of trial to require the

Waltham School Committee to fully disclose the charge

against the Parents. This motion was denied by the

District Court. Neither the Waltham School Committee.

nor Mr. Doyle have alleged any conditions set forth in

law upon which a Care and Protection petition may be

brought. The Waltham School Committee presented

no evidence that the Parents have failed in their duty to

rear their children appropriately.

The Parents gave several written assurances to

Waltham of their desire to obey law, and demanded on

several occasions that Waltham produce the statutes or

Constitutional provisions that requires parents to

produce information, or any other law to which Parents

need conform. In response, Waltham did not produce

any statute or Constitutional provision, which gave it

specific authority to require the parents to provide

information to the Waltham School Committee.

A trial was conducted in three court appearances over

six months, January 21, April 3, and July 10, 1998.

Associate Justice Fearey presiding, issued her

FINDINGS OF FACT AND CONCLUSIONS OF LAW

on 31 July 1998. During all proceedings to date, the

Parents have been denied Council for their assistance.

No jury was permitted to determine the facts or the law.

Expert testimony showed that children educated in their

family are generally afforded a better education than

those attending government schools. Expert testimony

showed that assignment to grade level, grading and

testing are not essential in order to rear children.

Evidence showed that no “compelling interest’ may

Support such intrusion (See AS 14.30.010)

The Court found that the burden of proof in this matter

is upon the Parents. The Court found that the Parents

did not fulfill the requirements set fourth in a

Massachusetts Court Opinion. The Court ordered that

the Parents, as penalty, must rear their children in the

manner dictated by the Waltham School Committee or

surrender the children to the Department of Social

Service.

The Parents petitioned a single justice of the

Massachusetts Supreme Judicial court for judicial

review. On or about December 2, 1998, Justice Ireland

denied Parents’ petition pursuant to Massachusetts

General Laws. chapter. 211, section 3 (SJC 98-520)

On or about February 12, 1999 the Supreme Judicial

Court affirmed Justice Ireland's decision of December

2, 1998. "

On October 7, 1998 and other Dates, Associate Justice

Fearey issued temporary custody orders committing the

children to the Department of Social Services.

Associate Justice Fearey recused herself from this

case on December 2, 1998.

The matter in the lower court is currently being heard

by Associate Justice Garinger. Associate Justice

Garinger ordered testing of the children which the

Parents provided under severe threat of harm to the

Children. On March 3, 1999, Associate Justice

Garinger returned custody of the Children to their

parents. The next review date for the proceedings is

scheduled for June 30, 1999.

As the Emergency petition to the single Justice of the

Supreme Judicial Court was not ruled on for three

months, The Parents appealed the first temporary

custody order, dated 7 October, 1998 to the

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Massachusetts Appellate Court so as not to loose their

right to do so. A hearing on the Appeal was conducted

on May 14, 1999. The Massachusetts Judicial Court

denied direct appellate review of this Appeal.

Alaska Statute AS 14.30.010 was entered into evidence

during the trial in the Waltham District Court. Issues

regarding the Constitutionality of the actions of the

Waltham School Committee and its agents were raised

prior to, during and after the proceedings and are

primarily listed within the Petition to Vacate in Appendix

These issues were incorporated by reference within the

Petition for Judicial Review and its addendum and

within the Request for further review and for

Reconsideration to the Massachusetts Supreme

Judicial Court.

The Courts have passed on these issues by claiming

that the issues have been long settled by the State’s

compelling interest in “ensuring the education of its

citizens”, an interest not supported by Law.

Argument in Support of a Grant of this Writ

This matter brings to light a conflict between the

unalienable rights and liberties of Parents protected by

the Constitution of the Commonwealth of

Massachusetts and a claim by government agents of a

“compelling state interest” that authorizes these agents

to act in a manner repugnant and contrary to the

Constitution. The Parents in this matter have studied

the law and find that no such authority can exist in our

form of government. The Parents have demanded

evidence of the existence of the authority claimed in the

form of Constitutional provision or statute but none is in

evidence. Therefore, the Parents bound by their

solemn compact with the whole people have acted to

enforce the provisions of the Constitution, and have

been put out of the protection of Law for so doing.

Under the united States Constitution, Tenth

Amendment, the People reserve powers not delegated

to the united States nor prohibited by the Constitution.

Thus the People have retained the unalienable right to

seek justice in any court of law to which the People give

jurisdiction to hear such matter. This unalienable right

may not be denied nor disparaged per the united States

Constitution, Ninth Amendment

The Waltham School Committee, by expending the

funds of these united States and the funds of the

Commonwealth, has made itself part of government.

The Waltham Schoo! Committee as the Accuser, and

various Courts named in this matter are government

agents and possess no rights, only those authorities,

duties and powers assigned them by the People. As

government agents, they may not deny the People’s

unalienable right to defend their lives and liberties in

this matter by denying or disparaging the People’s right

to demand justice and to enforce their Law in this court

of supreme authority in these united States.

This case presents an issue of fundamental importance

to the administration of justice in the courts of the

united States. The issue deals with the constitutional

limits on government authority , power, and of the

protection of the natural and unalienable rights of the

People. The government actors having no power

except that provided by the Constitution cannot claim a

————a~ ewe...

“compelling state interest” so as to render the various

provisions of the declaration of rights of the Inhabitants

inoperative.

Because Care and Protection petitions are promalgated

to remove children from their parents, because

government schools are dangerous, harmful and

ineffective for some children, because more and more

families are choosing to return to the primacy of

parental roles in child rearing and parents are treated

like obstructionists when their actions to ensure the

best interests of their own children conflict with the

opinions of governmental “authorities,” it is essential

that this Court settie these questions at the earliest

juncture. This decision if allowed to stand, may spawn

generations of children harmed by care and protection

proceedings and separated from their parents due to

differing religious beliefs and pedagogy. The effect of

this decision is to “standardize” all children, for any

parent refusing to administer a standardized test to his

child currently may be found unfit and the children may

be removed for this cause alone.

Thomas Jefferson, our third president, once stated:

"Is it a right or a duty in society to take care of

their infant members, in opposition to the will of

their parents? How far does this sight and duty

extend? [T]o guard the life of the infant, his

property, his instruction, his morals? The

Roman Father was supreme in all these: we

draw the line: but where? Public sentiment does

not seem to have traced it precisely. Nor is it

necessary in the present case. It is better to

tolerate the rare instance of a parent refusing to

let his child be educated, than to shock the

common feelings and idea by the public

asportation and education of the infant against

the will of the father.” '

The instant case is just this, a matter where the public

asportation of two children has occurred for the

purpose of educating the children against the will of the

father. This government abduction has occurred not

because the Parents refused to let their children be

educated, but because the Parents exercised their

unalienable rights to demand proof of authority, the law,

in order to protect the children from persons claiming to

act as government agents. This government abduction

has occurred because the Parents maintain their

religious belief that it is their unalienable right and duty

before the Creator to rear their offspring. This

government abduction has occurred because the

Bryant Family has been put out of protection of the law.

The evidentiary standard in this matter has placed the

burden of proof squarely on the Parents to produce

evidence that the children are enrolled in school, or

“approved” by the local school district. Such action is

unlawful per the Massachusetts and United States

Constitution. The government of Massachusetts has

no authority to declare all parents unfit and accountable

to government officers and to enforce such action to the

effect that Parents have no liberty to care for and

protect their own offspring in accordance with their

conscience and religious beliefs. Such action has made

' Morgan, Kerry L. Real Choice Real Freedom in American

Education, University Press of America, New York, 1997. P 106.

In the endnotes accompanying this quotation, Attorney Morgan

notes that “As used by Jefferson, the ‘public asportation and

education of the infant against the will of the father,’ means the

wrongful or felonious removal of a child from his or her parent by

the state.”

errand

the Bryant Family slaves of the Waltham School

Committee and made a mockery of the Constitution.

Our republican government is instituted for the

protection, safety, prosperity and happiness of the

People so that they may enjoy their natural rights and

the blessings of life (Massachusetts Constitution,

Preamble). Whenever any form of government

becomes destructive of these ends, it is the Right of the

People to alter or abolish it. (Massachusetts

Constitution, Part |, Article Vil)

The Petitioners of this writ, cognizant of the long train of

abuse and usurpation of the Rights of the People by

persons claiming to act as government agents, have a

right and a duty to seek justice in this Court so as to

prudently avoid the necessity of the People needing to

throw off their current government and institute a new

one within the Commonwealth of Massachusetts. The

actions of the Waltham School Committee and its

agents and the Massachusetts Courts as they stand

mean that the Declaration of Rights of the Inhabitants

clearly stated in the Constitution of Massachusetts has

no effect.

Further, this Court has jurisdiction over this matter

pursuant to the united States Constitution, Article IV,

section 4. The Respondents, as government agents,

have failed to support the frame of Government agreed

upon, ordained and established by the Inhabitants in

the Constitution of the Commonwealth of

Massachusetts and have thus denied the republican

form of government required by this Article of the

United States constitution. The Petitioners, Inhabitants

of Massachusetts, look to the united States to

guarantee the republican form of government, for the

eee ——

Inhabitants have suffered an invasion of oppression

and tyranny under the actions of the Respondents.

The Parents in this case demanded pro~f of authority

and demanded law in evidence so that they may

understand the nature of the charges they are being

held to answer for and in order to have knowledge of

the proceedings against them. They have demanded

the assistance of Council at all proceedings, and have

demanded due process and the protection of law.

These demands are their unalienable rights to which

the laws of Nature and of Nature’s God entitle them.

By the Court's decision, parents have been made

powerless to effect the education of their offspring and

children have become “mere creatures of the state”.

That this intrusion is unlawful is clear from the statute of

the State of Alaska. Where families in Alaska may rear

their children without providing names, birthdates,

education plans, grading, test results, progress reports,

portfolio materials, or any other information, data,

papers or possessions, no “compelling state interest” to

supply this may be supported in Massachusetts. The

inhabitants of the state of Alaska may not have more

natural, essential and unalienable rights than those of

the Commonwealth of Massachusetts as these rights

are fixed and unchangeable per the Great Legislator of

the Universe.

Conclusion

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted this 27" day of June, 1999 by

our hands,

Boy Aisle, hoo YU: hh by

leY: Bryant Kim Elizabeth: Bryant

Mail location:

Attention: Joseph Adams

Friends of the Constitution

Post Office Box 620115

Newton Lower Falls, Massachusetts

Appendix A

SJC-07912

CARE AND PROTECTION OF BERT & another.

February 12, 1999.

Supreme Judicial Court, Appeal from order of single

justice.

The parents of two children purport to appeal pursuant

to S. J. C. Rule 2:21, 421 Mass. 1303 (1995), from the

denial of their petition for relief by a single justice of this

court. The trial judge had ordered the parents to take

certain action regarding the education of the children

and specified that, if the parents had not fully complied

by a certain date, temporary custody of the children

would be transferred to the Department of Social

Services.

We treat that order as interlocutory for purposes of rule

2:21 (1), and turn to the requirement in rule 2:21 (2)

that "the appellant must set forth the reasons why

review of the trial court decision cannot adequately be

obtained on appeal from any final adverse judgment in

the trial court or by other available means." The only

statement which could be read as bearing on this

question, "the nature of care and protection

proceedings is to put forth numerous ‘temporary’

commitment orders that are possibly unappealable until

the children are permanently, finally, removed from the

custody of their parents at great harm,” is weakened by

the fact that the parents have filed a notice of appeal in

the underlying proceeding, from an October 7, 1998,

order and have filed an application for direct appellate

review thereof. Moreover, they do not state whether

the order at issue comes within the scope of G. L. c.

119, § 27, which pertains to appeals.

Judgement affirmed

The case was submitted on the papers filed,

accompanied by a memorandum of law.

The parents, pro se.

Kristyn Snyer for the children.

Jeannette A. McCarthy for Waltham School

Department.

Cheryl A. Watson for Department of Social

Services.

Susan Mojica, amicus curiae.

Supreme Judicial Court for the Commonwealth of

Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Father of Minor Children

P.O. Box 620115

Newton Lower Falls, MA 02462

RE: No. SJC-07912

CARE AND PROTECTION OF BERT & another

NOTICE OF DENIAL OF PETITION FOR REHEARING

The Petition for Rehearing filed in the above captioned

case has been considered by the court and is denied.

Jean M. Kennett, Clerk

Dated: March 26, 1999

To: Father of Minor Children

Thomas F. Reilly, Attorney General

Kristyn Snyer, Esquire

Jeannette A. McCarthy, Esquire

Chery! A. Watson, Esquire

S. J. C. for Suffolk County

Appendix B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY

NO. SJ-98-0520

IN RE: CARE AND PROTECTION

MEMORANDUM AND ORDER

The pareris of two children, G. and N. (collectively "the

children"), who are the subjects of the underlying care

and protection proceeding, filed a petition pursuant to

G. L. C. 211, § 3, for relief from an order by a judge in

the Waltham District Court (Feary, J.) issued on July

31, 1998. The order authorized the transfer of

temporary custody to the Department of Social

Services (the "Department") if the parents failed to

follow certain home schooling requirements for their

children or to enroll the children in the Waltham public

schools or approved private school by September 8,

1998. This order has been stayed until December 2,

1998, pending review by this Court

| briefly summarize the relevant facts from the judge's

Findings of Fact and Conclusions of Law. In October

1996, Daniel Doyle, an attendance supervisor for the

Waltham Public Schools, was informed by an

elementary school principal that the children were not

enrolled in school. After an initial investigation Mr.

Doyle was informed by the mother of the children that

she intended to educate the children at home. Despite

the mother's initial resistance to Mr. Doyle's inquiry, the

parties thereafter engaged in a protracted effort to

EE ae EE eo

resolve this matter. After numerous meetings and

exchanges of information, such as lists of curricular

materials and samples of educational activities, the

chief impediment to a resolution of the matter centered

around the parents’ refusal to permit an assessment

and standardized testing of the educational level and

progress of the children. Further, the parents did not file

a sufficiently detailed home schooling plan to allow the

school committee to chart the children’s educational

level and progress. Following the July 31 order, the

parents filed their petition pursuant to G. L. c. 211, § 3,

init seeking a dismissal of the matter below.

General Laws c. 211, § 3, provides general

superintendence over courts of inferior jurisdiction to

“prevent errors and abuses.” A party filing a petition

pursuant to c. 211, § 3, must demonstrate both a

substantial claim of violation of substantive rights and

error that cannot be remedied through the ordinary

review process. Planned Parenthood League of

Massachusetts, Inc. v. Operation Rescue, 406 Mass.

701, 706 (1990). The discretionary power of review

under c. 211, § 3, is exercised in only the most

exceptional circumstances. Id.

Initially, | must determine whether the petition tiled

under G. L. c. 211, § 3, is properly before me. On the

issue presented, the parents have exhausted their

remedies and have alleged a substantial violation of a

substantive right. The parents have satisfied the

threshold requirement for review. See Dunbrack V.

Commonwealth, 398 Mass. 502, 504 (1986): see also

Parents of Two Minors V. Bristol Division of the

Juvenile Court Dept, 397 Mass. 846, 849 (1986). |

proceed to the merits of the petition.

This case presents a clash between the fundamental

right of parents to raise and educate their children and

the Commonwealth's compelling and substantial

interest in providing for the education of children. The

United States Supreme Court has clearly stated that

child rearing and education are liberty interests

protected by the Fourteenth Amendment and that the

“primary role of parents in the upbringing of their

children is now established beyond debate as an

enduring American tradition Wisconsin v. Yoder, 406

U.S. 205, 232 (1972). Likewise, the parents’ right to

educate their children "must be reconciled with the

Substantial State interest in the education of its

citizenry.” Care and Protection of Charles, 399 Mass.

324, 334 (1987). Nonetheless, the "State's interest in

universal compulsory education . . . is by no means

absolute to the exclusion or subordination of all other

interests." Wisconsin V. Yoder, supra at 215.

From its infancy, the Commonwealth imposed a duty

upon "Legislatures and Magistrates, in all future periods

of this Commonwealth, to cherish the interests of

literature and sciences . . . especially public schools

and grammar schools in the towns." Massachusetts

Constitution, part Il, c. 5, § 2. The codification of that

duty is found in G. L. c. 76, § 1, which requires that

"[e]very child between the minimum and maximum

ages established for school attendance by the board of

education attend a public day school in [the] town

[where the child resides] or some other day school

approved by the school committee" unless the child is

“otherwise instructed in a manner approved in advance

by the superintendent or the school committee.” In the

instant case, there is no dispute that the children

neither attend a public school or other day school

where they reside.* Further, the children do not

receive alternative instruction with the advanced

approval of the schoo! district.

In the Findings of Fact and Conclusion of Law, the trial

judge ordered, absent the submission of an educational

plan to the school committee by the parents and an

agreement to a professional evaluation of each child's

educational level and cognitive development, that

temporary custody of the children would transfer to the

Department. To date, there has been no compliance

with the order by the parents. The parents assert that

the trial judge's order is violative of their rights under

Articles XII and XXX of the Massachusetts Declaration

of Rights and, as such, is unconstitutional. The

constitutionality of the judge's order is well settled. The

seminal case in Massachusetts is Care and Protection

of Charlies, supra. There, the Court held that C. L. c.

76, § 1, is applicable to proceedings under C. L. c. 119,

§ 1. Further, the Court concluded that c. 76, § 1, is

“neither void for vagueness nor an unlawful delegation

of legislative authority." Id. at 330.

It is important to note that the Court in Charles agreed

with the trial judge that the children were in need of

care and protection with respect to their educational

care. The Court further found that care and protection

“was warranted on the evidence” and cited as one

° At the hearing on the subject petition, the parents discussed the

possibility that the children would move to Connecticut. There was a

general discussion about the presentation of documents to the lower court

as proof of the new residence. The possibility of a change in residency

raised the issue of mootness and delayed the disposition of this matter To

date, | am not aware of any documents evidencing a change of address to

Connecticut

SNES PRCA se ein, SOM AR 2 es OS oie conan

Se ee ee RE Ne eR Re eg ee pene eee Meee. ee

example the parents’ refusal to permit testing of their

children. Care and Protection of Charles, supra at 340.

Because the parties in Charles "never confronted the

issues before them in light of the legal principles and

guidelines set out in [the] opinion,” the Court vacated

the judge's order and remanded the case to allow the

parties to make a serious effort to resolve the matter by

agreement. Id. The parties here, however, have had

the benefit of Charles and a remand for additional

discussions would only serve to delay this case further

and would possibly jeopardize the educational progress

of the children.

The trial judge in this case displayed a respectful

regard for the rights of the parties; a willingness to work

toward a resolution of the issues; and a careful

consideration of the applicable law. The trial judge has

committed no error of law or abuse of discretion. The

petition pursuant to G. L. c. 211, § 3, is denied.

By the Court,

S/Roderick L. Ireland

Associate Justice

Entered: December 2, 1998

—

Appendix C

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss WALTHAM DISTRICT COURT

Docket No. 9751-CP-10

Care & Protection of

George Nicholas Bryant &

Nyssa Gale Bryant

ee eee eee

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter is before the court pursuant to the

filing of a petition ("Petition") alleging that George

Nicholas Bryant, d.o.b. 2/16/88 ("George") and Nyssa

Gale Bryant, d.o.b. 10/26/89 ("Nyssa") (collectively, the

"Children"), are in need of care and protection pursuant

to G.L. c. 119, § 24, et seg., and praying that this court

SO adjudicate them. Having received evidence and

heard arguments of counsel, this court adjudicates

George and Nyssa to be in need of care and protection

and enters further orders as set forth infra. In

furtherance thereof, this court issues the following

findings of fact, conclusions of law and order.

1. Procedural History

1. The Petition was filed on June 2, 1997, by Daniel

Doyle (Mr. Doyle"), the attendance officer of the

Waltham School Committee (the "school Committee")

alleging that the Children were in need of care and

protection by reason of being school age, not having

been enrolled in school and not having approved home-

ee ee pa Be a

school plans on file with the School Committee. A

Summons was issued to Kim Elizabeth Engler, mother

of the Children ("Mother") and George Greeley Bryant,

father of the Children ("Father") (collectively, the

"Parents"), to appear on June 11, 1997, for initial

hearing.

2. On June 11, 1997, the Parents not being present,

the court issued new summons to the Parents for July

9, 1997, and ordered in-hand service of the new

Summons upon the Parents.

3. On July 9, 1997, the Parents appeared and decided

to regain private counsel. The case was continued to

August 6, 1997, to allow counsel time to prepare.

4. On August 6, 1997, Kristen Snyer, Esq. was

appointed to represent the Children pursuant to G.L. c.

119 §29. Attorney Gregory A. Hession ("Attorney

Hession") filed an appearance on behalf of the Parents,

and Attorney Jeannette McCarthy, Assistant City

Solicitor for the City of Waltham (Attorney McCarthy”),

appeared on behalf of the School Committee. (The

School committee, the Children and the Parents are

hereafter collectively referred to as the "Parties.")

Twenty-one exhibits were entered into evidence. The

initial hearing was continued to August 13, 1997.

5. On August 13, 1997, neither Attorney Hession nor

the Parents were present; and the case was continued

to September 12, 1997. The Parties continued to be

involved in settlement discussions. These discussions

continued as the case went to further hearing on

September 12, and October 1, 1997. As of October 22.

1997, it appeared to the Court that the Parties were

unlikely to be able to settle the case expeditiously, and

ateceeniaaaniicitaiinaiiaiiaaia aia

Lori D. Kram, M.A. J.D., was appointed court

investigator ("Investigator") pursuant to G.L. c. 119 §24.

6. The Investigator filed her report with the Court on

December 3, 1997, and it was admitted subject to

cross-examination and motions to strike on December

5, 1997. The case was continued to January 7, 1998,

for motions and January 21, 1998, for trial.

7. On December 5, 1997, the Children were identified

by the Court.

8. This matter proceeded to trial on January 21, 1998;

and testimony was taken on that date, on April 3, and

on July 10, 1998.' A list of all exhibits introduced at trial

("Exhibits") is attached as an appendix to these

Findings and is incorporated herein by reference.

Testimony was taken from the following witnesses:

Daniel Doyle School Dept 1/21/98

Emile Rosenberg, Ph.D. School Dept 1/21/98,

4/3/98

Lorie Kram, Esq School Dept 4/3/98

Samuel Biumenfeld, Ph.D. Parents 7/10/98

Dina Sweeney Parents 7/10/98

‘ The case was not heard for trial on February 20, March 13, or

May 13, at the request of at least one of the Parties with the assent

of the others. The inability to schedule this case on a day-to-day

basis, while frustrating for the Court, was not unreasonable in light

of the fact that the Children did not appear to be a serious risk, the

hope of settlement remained, and Parents’ counsel had to travel to

Waltham from Western Massachusetts.

ll. Facts

The following facts are found based upon clear

and convincing evidence:

1. George Nicholas Bryant, a subject of this Petition,

was born on February 16, 1988, in Newton,

Massachusetts, and is ten years old. At all times

pertinent to this action, George has resided at 9 Gale

Street in Waltham, Massachusetts ("9 Gale Street

Address"), and has been in the Parents’ care and

custody.

2. Nyssa Gale Bryant, the other subject of this Petition,

was born on October 26. 1989, in Newton,

Massachusetts, and is eight years old. At all times

pertinent to this action, Nyssa has resided at the 9 Gale

Street Address, and has also been in the Parents’ care

and custody.

3. Kim Elizabeth Engler, born on November 20, 1960,

is the mother of George and Nyssa. She, too, resides

at the 9 Gale Street Address.

4. George Greeley Bryant, born on August 31, 1955, is

the father of the Children. He resides at the 9 Gale

Street Address.

9. In late October, 1996, Daniel Doyle ("Mr. Doyle"),

Supervisor of Attendance and Census for the School

Committee, received a telephone call from Mr. John

Barry, principal of the Fitzgerald Elementary School in

Waltham informing him that one Bryant had two school-

age children who were not enrolled in school. Mr. Barry

gave Mr. Doyle the 9 Gale Street Address and the

Parents’ telephone number.

eee

6. The 9 Gale Street Address is within the jurisdiction

of the Waltham Schoo! Committee.

7. Mr. Doyle then went to the 9 Gale Street Address,

but found no one at home. Later that day, he

telephoned the number he had been given and spoke

with the "caretaker of the Bryant children,” who

informed him that there were two children of school age

at that number, both of whom were being schooled at

home.

8. At the time, neither of the Children had ever

matriculated in the Waltham Public Schools; nor were

they attending a private school, nor had a

homeschooling plan been filed with the School

Committee as to either of them.

9. The next day, Mother called Mr. Doyle and informed

him that he did not have the authority to inquire into the

Children's education and that she was not required to

give him any information. Mr. Doyle informed Mother

that she did have the right to homeschool the Children,

but that she had to comply with the law regarding

homeschooling. Mother asked for a copy of the

applicable law.

10. Mr. Doyle then sent mother the documents marked

Exhibit 5. Some days later, the Parents sent the

documents back to Mr. Doyle, having written "FRAUD"

across the face of one (Exhibit 6).

11. Mr. Doyle telephoned Mother and told her the likely

consequences of her refusal to comply, including

referral to the District Attorney.

————————

12. Subsequently, Mr. Doyle discussed the Bryant

matter with personnel from the Department of Social

Services ("DSS") and the District Attorney's office, as

well as with his own supervisor, Dr. Emile Rosenberg,

Assistant Superintendent of Schools for the City of

Waltham ("Dr. Rosenberg"). As a result of these

conversations, Mr. Doyle filed an application for a

criminal complaint in the Waltham District Court

pursuant to G.L. c. 76 §2, for failure to send ("Criminal

Complaint”).

13. After the Parents initial failure to respond to

summonses’ on the Criminal Complaint, a hearing was

scheduled before a District Court judge on or about

December 30, 1996.

14. In response to service, the Parents sent Mr. Doyle

a so-called "Non-Statutory Abatement," later filed in this

proceeding as Exhibit 7. Mr. Doyle later received

Exhibits 8 and 9. The Parents appeared in Waltham

District Court accompanied by their “council,” one of

whom informed Mr. Doyle he "had better sleep with his

eyes open.” The criminal complaint was reduced to the

status of a civil matter at the request of the District

Attorney and the School Committee.

15. Through February 1997, the correspondence

between the School Committee and the Parents shows

that the School Committee was attempting to inform the

Parents of the applicable law and regulations regarding

homeschooling in Waltham, while the Parents were

vigorously and continually asserting the School

Committee's (and the Court's) lack of jurisdiction.

* In fact, it appears that the initial summonses may never have

been served upon the Parents

16. The Parents and the School Committee

subsequently entered into discussions to determine

whether the case could be resolved. After their initial

meeting at Waltham District Court, they met in the

Government Center in Waltham on March 17, 1997

("March Meeting") and at the Waltham Public Library on

May 14, 1997 ("May Meeting”).

17. The March meeting was attended by Mr. Doyle, Dr.

Rosenberg, Attorney McCarthy, Father, Mother and

three unidentified adults accompanying the Parents.

One of those adults was the same man who had

accosted Mr. Doyle at the previous court hearing. One

of the unidentified males acted as spokesperson for the

Parents, giving certain views of his own about the

appropriateness of the Schoo! Committee's oversight

and the applicability of the Massachusetts Constitution,

as well as, perhaps, that of the United States.

18. Dr. Rosenberg explained the issues from the point

of view of the School Committee: specifically, that the

School Committee is supportive of parents who wish to

homeschool their children. The School Committee is

“very open” to homeschoolers participating in organized

public school instruction and activities to the extent that

those parents and children wish such participation, and

conversely, does not require any such participation.

The School Committee merely requires a written

description of how each child is being educated and

some testing results to allow it to assess the child's

level of achievement.

19. Following the March meeting, the Parents sent Dr.

Rosenberg a letter via Attorney McCarthy, explaining

the Children's educational plan in general terms and

attaching a copy of selected provisions of the

Constitution of the Commonwealth, which they describe

as their "Plan for Education"(Exhibit 11). The Parents

refused to state the Children's names or give anything

other than a General Delivery address. Their general

comments represent that they pursue a learner-led

approach, conduct certain science projects (examples

of which are referenced): facilitate the acquisition of

mathematics skills by the use of a computer, Cuisinaire

rods and an abacus; and engage in certain art, music

and physical education activities. Reference was also

made to Father's Cub Scout activities.

20. In Exhibit 12, the School Committee rejected the

Parents’ proposed educational plan in that it failed to

give the names, dates of birth and grade levels of the

Children, as well as statements regarding the hours

and days of instruction, the identities of the instructors

(and their backgrounds if not the Parents), access to

materials, written progress reports and standardized

test results.

21. The Parents responded (Exhibit 13) by refusing to

provide the information requested and attaching a

simplistic and facetious apologia for their failure to state

the length of their instructional day and year.

22. This skirmish abated during the month of April only

to resume in May. Just prior to the May meeting, on

May 12, 1997, Dr. Rosenberg repeated the five points

contained in his summary attached to Exhibit 12.

(Exhibit 14). The next day, May 13, Attorney McCarthy

helpfully drafted some sample educational plans that

would be approved by the School Committee and

attached a copy of Care and Protection of Charles, 399

Mass. 324 (1987) ("Charles"). The Parents responded

to Exhibit 14 by means of an annotated copy,

seemingly complying with the representations

requested in points 1 through 3, but declining to provide

the portfolios and standardized testing required in

points 4 and 5.

23. The persons present at the March Meeting

forgathered again for the May Meeting at the Waltham

Public Library. That meeting lasted for approximately

two hours and achieved no resolution.

24. The next day, May 15, 1997, Dr. Rosenberg sent

the Parents a summary of the School Committee's

position regarding their non-compliance with its

homeschooling procedures.

25. Meanwhile, as the Criminal Complaint was pending

before the Waltham District Court, a parallel

administrative process had occurred at DSS in

response to a report filed by Mr. Doyle pursuant to G.L.

c. 119 §51A ("51A Report") on or about February 18,

1997. DSS "screened in" the 51A Report and then did

an investigation pursuant to G.L.c. 119 §51B, which

resulted in an initial decision to "support" the allegations

of the 51A Report. An assessment worker, Dina

Sweeney ("Ms. Sweeney”), was assigned by DSS to

follow-up the 51B investigation. Ms. Sweeney met with

the Parents and saw the Children but was not given

access to them to conduct an interview. She was not

given permission to speak with any “collaterals.”

However, as a DSS assessment worker, Ms. Sweeney

would have been at liberty to speak with collaterals

without the consent form if she had been concerned

that the Children were being abused or neglected.

26. In any case, Ms. Sweeney was unable to complete

her assessment; and, after conference with DSS

supervisory and legal staff, she closed the case. The

support decision with regard to the 51A Report was

retroactively changed to “unsupported.” At the time the

case was closed, Ms. Sweeney had seen no evidence

of abuse or neglect, to the extent that she was able to

observe, nor did DSS personnel believe that the

Children were being abused or neglected. DSS made

and administrative determination that, given the

allegations, a matter of alleged educational neglect was

more properly handled by the Schoo! Committee than

by DSS.

27. Finally, on June 2, 1997, Mr. Doyle filed this

Petition.

28. Following the filing of the Petition, the Parties

entered into prolonged attempts to resolve this matter

so that the Petition could be dismissed. Exhibits 18

through 27 are indicative of the attempts made by both

the Parents and the School Committee to reach an

accommodation. Exhibit 22, for example, illustrates

substantial progress.

29. After Exhibit 22 was submitted to the School

Committee, Dr. Rosenberg responded by providing the

"scopes and sequences,” or curriculum overviews, for

grades one through six of the Waltham Public Schools

(Exhibits 23A-F) as an aid to the Parents in further

describing their homeschooling curriculum. The

Parents responded by merely placing check marks next

to the subjects in which they had engaged in some

activities. In other words, the resulting document would

be described more accurately as an "interest inventory”

than as a homeschooling plan.

30. By October, 1997, however, it was apparent that

the Parties had reached an impasse.° Of Dr.

Rosenberg's initial 5 points, first set forth in Exhibit 14,

the principal stumbling block continued to be the

question of assessment. The Parents had provided the

school with the Children's names and birthdates. They

had stated that they would be-the responsible

instructors, and they had provided lists of curricular

materials and samples of educational activities with and

in which the Children were engaged, albeit in a less

detailed form than the School Committee would have

liked.

31. However, they continued to refuse to provide any

samples of the Children's work or to submit the

Children to any standardized testing or to evaluate their

competencies, even in general terms such as

“commendable,” "satisfactory" or "needs improvement.”

Although the progress reports submitted with Exhibit 22

give a bare indication of the Children's level of

competence in math, for example, it would appear from

those statements that their principal math activity was

calculating change on shopping trips and that their only

exposure to fractions was dividing objects amongst

family members. These kernels of information are

clearly insufficient to determine whether the Children's

math skills are appropriate to their ages.

32. The Parents believe, in the words of the

Investigator, “that it is not only their right but their

obligation to raise and educate their children.”

investigator's Report, Exhibit 28, at 2. They believe ina

"learner-led" approach to education, in which the

3 After the letter marked Exhibit 27, there has been no further

correspondence between the Parents and the School Committee

related to the submission of educational plans for the Children.

educator (in this case, the Parents) facilitate the child's

exploration of his or her own interests. In the course of

exploring his or her interests, the child will, perforce,

acquire necessary basic skills in the areas of reading,

writing and mathematics. Needless to say, this

educational philosophy militates against the

development of a concrete "curriculum."

33. The School Committee does not object to the

Parents using this method of education. It has

approved numerous homeschooling plans that involve

varied educational methodologies. Fourteen familie:

representing 23 children, were engaged in

homeschooling programs during the 1997-1998 school

year, some utilizing the "learner-led" or "non-curriculum

based" approaches.

34. The School committee is supportive of

homeschooling parents and children and provides them

whatever public school resources they choose to utilize

So long as it is not disruptive of the normal public

school day.* Some homeschooling parents and

children in Waltham choose to participate in some

public school programs and others do not: the Schoo!

Committee does not require any level of participation

for a homeschooling plan to be approved. Although the

School Committee's rules require compliance with the

guidelines set forth in Charles, supra, at 337-340, it is

flexible in the application of those guidelines to

accommodate the learner-ied philosophy.

35. The School Committee does, however, require that

parents of homeschooled children between the ages of

* This level of support for homeschooling is not common across

the Commonwealth. Exhibit 28 at 7.

6 and 16 inform it of basic facts pertaining to the

children's educational level (e.g. grade or skill level)

and submit to some evaluation of their level of

educational achievement. The latter typically is

assessed using standardized testing instruments;

however, it can be accomplished through the

submission of portfolios of a student's work or through

some other means of evaluation. The School

committee will provide standardized achievement and

aptitude testing free of charge to homeschooled

children.

36. The School Committee also requires that parents

submit progress reports, which may include portfolios

or work samples, either quarterly or semi-annually.

Those reports are reviewed by School Committee

personnel and feedback can be provided to parents if

they desire it. Finally, homeschoolers must participate

in certain standardized testing during grades 3, 4, 8,

and 10. The School Committee's procedures for

submission and approval of homeschooling plans are

as described in Exhibit 1.

37. The School committee's requirement for semi-

annual or annual progress reports is in accord with the

practice of other school districts across the

Commonwealth. Exhibit 28 at 7. School districts vary

in how often they require such submissions, ranging

from quarterly to annually, with many school districts

requiring semi-annual reports. /d. As for other

evaluations, there are private agencies and individuals

who conduct baseline educational testing and portfolio

review for homsechooling families and certified

teachers sensitive to the concerns of homeschooling

families who will conduct any required testing. /d.

Thus, it is certainly possible to comply with the School

eee

District's flexible requirement for homeschooling without

violating the integrity of the “learner-lead" approach.

38. The Parents, however, not only refuse to submit

the Children to standardized testing; they also refuse

even to provide a portfolio of the Children's work for

review by the School Committee, viewing that work as

the children's private property.

39. Thus, after the two years this case has been in

court pursuant to the Criminal Complaint and then this

Petition, the Court and the School committee still know

virtually nothing about the Children's educational level

or mode of instruction. Even the Parents’ expert,

Samuel Blumenfeld, PHD (Hon.), knew virtually nothing

about the Parents, the Children or the Waltham Public

Schools and so could be of no assistance to the Court

in determining whether or not the Children had

achieved intellectual skills appropriate to their ages. He

could only express his personal confidence that the

Parents, as parents, would foster the education of their

Children better than could the Commonwealth or the

School Committee.

40. In sum, the Parents insist that the School

Committee trust that they will carry out their legal,

moral, and religious responsibility to educate their

Children with no oversight of their effectiveness in

meeting that mandate. The School Committee is

understandably reluctant to discharge its legal

responsibility to the citizens of the Commonwealth.

including the Children, by leaving the matter to blind

trust.

41. At the time of trial, neither of the Children had

matriculated in the Waltham Public Schools: nor were

they attending a private school. Further, as detailed

supra, the Parents had never filed with the School

Committee a homeschooling plan that was sufficiently,

detailed to allow the School Committee to assess the

Children's educational level and their progress in the

Parents' homeschooling program. Finally, the Parents

presented no evidence to indicate that the Children fell

under any of the other specific exceptions detailed in

G.L. c. 76 § 1.

42. Holt Associates, a homeschooling advocacy

organization in Cambridge, Massachusetts, maintains a

list f evaluators competent to assess the educational

level and progress of children who are being

homeschooled using a "learner-led" approach. See

Exhibit 28 at 8-9, Paragraph 4.

ill. Conclusions of Law

1. This proceeding is governed by the provisions of

G.L.c. 119 §1, et seq. (the "Statute"), with particular

reference to §§ 24 & 26 thereof ("Section 24” and

"Section 26," respectively). Specifically, Section 24

directs, in pertinent part, that a petition shall issue

under the Statue if "any person" alleges that a child

within the jurisdiction of the Court and under the age of

eighteen

Is without: (a) necessary and proper physical or

educational care and discipline or; (b) is growing

up under conditions or circumstances damaging

to the child's sound character development or.

guardian with care and custody, or custodian, or:

(d) whose parents, guardian or custodian are

unwilling, incompetent or unavailable to provide

any such care, discipline or attention....°

2. Children between the ages of six and sixteen are

required to attend public school unless they fit within

one of the specific exceptions set forth in G.L. c. 76, §1,

among which is "a child who is being otherwise

instructed in a manner approved in advance by the

superintendent or the school committee.” See also

Charles, supra, at 333.

3. Further, the School Committee is required to

"provide for and enforce the school attendance of all

children actually residing” in Waltham. G.L. c. 76, $1.

3rd paragraph. It also has an affirmative duty to assure

that each child within its jurisdiction receives an

adequate education. Massachusetts Constitution, Part

ll, c. 5 §2; McDuffy, et al. v. Secretary of the Executive

Office of Education, et al., 415 Mass. 545. 564-565

(1993).

4. Mr. Doyle, representing the Schoo! Committee, was

a proper petitioner under Section 24 of the Statute, See

Charles, supra, at 328-329.

5. Because the School Committee seeks an

adjudication that George and Nyssa are children in

need of care and protection under the Statute, it must

prove by clear and convincing evidence that Mother

* The School Committee relies solely upon Section 24 (d) and

does not allege that any of the other grounds set for the in

subsections (a) through (d) of Section 24 are applicable to this

Petition. See, e.g., Petitioner, Waltham Schoo! Committee's

Motion for Voluntary Dismissal (partial), dated April 9, 1998, and

Petitioner, Waltham Schoo! Committee's Request for Findings of

Fact and Rulings of Law, 10” request at 6

and Father are currently unfit to parent George and

Nyssa. See, e.g., Petitions of the New England Home

for little Wanderers to Dispense with Consent to

Adoption, 367 Mass. 631, 646 (1975)("New England

Home"). Indeed, “the tests ‘best interests of the child’

_.. and ‘unfitness of the parent’ ... reflect different

degrees of emphasis on the same factors, ... the tests

are not separate and distinct but cognate and

connected.” /d. at 641.

6. Proof by clear and convincing evidence means that

the evidence must induce in the finder of fact a degree

of belief greater than that required by proof by a fair

preponderance of the evidence and less than that

required by proof beyond a reasonable doubt. The

proof must be "strong, positive and free from doubt"

and “full, clear and decisive." Stone v. Essex County

Newspapers, Inc., 367 Mass. 849, 871 (1975)

(“Stone”), quoted in Callahan v. Westinghouse

Broadcasting Co., Inc., 372 Mass. 582, 584 (1977)

("Callahan"). See also, Adoption of Iris, 43 Mass. App.

Ct. 95, 105 (1997). Stone itself relied upon cases

stretching back to Newell v. Homer, 120 Mass. 277,

280 (1876): "The burden of persuasion ... in those

cases requiring a showing of clear and convincing proof

is sustained if evidence induces in the mind of the tner

a reasonable belief that the facts asserted are highly

probably true, that the probability that they are true or

exist is substantially greater than the probability that

they are false or do not exist.” This latter formulation is

derived from McBaine, Burden of Proof: Degrees of

Belief, 32 Cal. L. Rev. 242, 263-264 (1944).

7. Although the ultimate finding of "current parental

unfitness" must be found be clear and convincing

evidence, subsidiary findings of fact need only rest

eee ee a ee ee ee See ee nee

upon proof by a fair preponderance of the evidence.

Adoption of Mary, 414 Mass. 705, 710 (1993).

However, in this case, the Court has found all facts by

clear and convincing evidence.

8 “Unfitness" is a “standard by which we measure the

circumstances within the family as they affect the child's

welfare. ‘The critical question is whether the natural

parents are currently fit to further the welfare and best

interests of the child." Petition of the Committee of

Public Welfare to Dispense with Consent to Adoption,

383 Mass. 573, 589 (1981)("Petition of DPW’), quoting

Bezio v. Patenaude, 381 Mass. 563, 570-571 (1980). In

determining fitness, the court shall consider the parents’

“character, temperament, conduct and capacity to

provide for the child” and their readiness to assume

parental responsibility as well as the welfare of the child

in the context of his or her "particular needs, affections

and age.” See e.g., Adoption of Mary, 414 Mass.

705, 711 (1993); see also Adoption of Carlos, 413

Mass. 339, 348 (1992)

9. Further, “[a] parent may not be deprived of the

custody of [his or her] minor child in the absence of a

showing that they ‘have grievous shortcomings or

handicaps that would put the child's welfare in the

family milieu much at hazard’ or ‘unless some factor

such as lengthy separation and a corresponding growth

in the ties between the child and the prospective

adoptive parents indicates that the child would be hurt

by being returned to the natural parents." Petition of

DPW at 590, quoting New England Home at 639,646.

10 A parent's fundamental liberty interest in the

“care, custody and management" of his or her child had

long been recognized in both the courts of the United

States and those of the Commonwealth. See, e.g.

Santosky v. Kramer, 455 U.S. 745, 753 (1982);

Wisconsin v. Yoder, 408 U.S 205 (1972); Pierce v.

Society of Sisters, 268 U S. 510 (1925); Petition of the

Dept of Publ. Welfare to Dispense with Consent to

Adoption, 383 Mass. 573, 587(1981); Richards v.

Forrest, 278 Mass 547 (1932).

11. Nevertheless, despite the fact that the standard is

“current parental unfitness,” "It is not the quality or

character of parental conduct per se that justifies State

intervention on behalf of an abused, neglected or

otherwise endangered child. Rather, it is the

endangerment itself.” Custody of a Minor, 389 Mass

755,766 (1983) [“Custody of a Minor (1983)"].

12. This case is governed by Charles, supra, which

held that the requirements of G.L. c. 76, § |, provide the

substantive standard for whether or not a child is the

object of educational neglect under the Statute. Indeed,

but for Charles, this case would long ago have been

dismissed. Under any fair reading of the case law

interpreting the Statute, including the cases referred to

in paragraphs II1.8 through 11, supra, there is clearly

insufficient evidence to make a finding of “current

parental unfitness." The only report of abuse or neglect

with regard to the Children was the 5IA Report filed by

Mr. Doyle based solely upon the Parents failure to

comply with G.L c 76, § 1. The Department investigated

the 5IA Report and ultimately “unsupported it” based

upon the failure to document any protective concerns

with regard to the Children.

13. In effect, this case is a G.L. c.76, §2 case in which

the Parents are no doubt guilty of failure to send under

the terms of that statute. However, particularly in view

of the minor monetary penalties that can be imposed

OO ee oe a ee ee en ae

eR ene ie ee Ee er -

for violation of G.L. c.76, §1,° the School Committee

has no doubt felt compelied to invoke the equitable

powers available to the juvenile Session of this Court

when hearing cases brought under the Statute, In brief.

the Court is being asked, under the aegis of [the

Statute, to compel compliance with G.L. c.76, §1, in the

absence of any positive evidence of actual neglect of

the Children's educational needs by the Parents.

14. To be sure, the Schoo! Committee finds itself in an

untenable position; on the one hand, it is supportive of

homeschooling and do not wish to intrude into the

Parents’ and Children's privacy any more than is

necessary to fulfil its own obligations to the

Commonwealth and to the Children: on the other hand,

it is required to assure itself at a bare minimum, that the

requirements contained in G.L. c.76, §1, are being

enforced and that the Children's educational needs are

being met, Indeed, the School Committee has been

effectively prevented from evaluating whether or not

educational neglect exists, much less proving its

existence, by the Parents’ failure to provide any

information regarding the Children’s educational level.

their mastery of basic skills or the methods being used

to educate them.

15 In the face of the clear mandate of Charles. The

Parents view the School Committee’s insistence on

* Section 2 of G.L. c. 76 (“Section 2”) currently provides for a fine

of $20 for every six-month period during which the parents has not

caused the child to attend school for all but 7 full-day or 14 hailf-

day sessions. The amount of the fine has not changed since the

enactment of Chapter 240 of the Acts of 1852, although other

provisions of Section 2, such as the period of time a child must

attend school, have changed as a result of amendments enacted a

various times between 1860 and 1921.

eg re ea

obtaining such information as unnecessarily intrusive

and urge this Court to rule that the standard enunciated

in Charles should not be followed because it violates,

inter alia, the provisions of Article XXX of the

Massachusetts Declaration of Rights, which establishes

a strict separation of powers amongst the executive

and judicial departments. Whatever the merit, of the

Parents’ argument, this Court declines to reach this

question in the face of the clear language of Charles, a

case that is indistinguishable from this one. In Charles;

the Court stated as follows:

Having concluded that the approval process

under G.L. c 76, §1, is constitutionally

permissible, we caution the superintendent or

school committee that the approval of a home

school proposal must not be conditioned on

requirements that are not essential to the State

interest in ensuring that “all the children shall be

educated" We recognize "that courts are not

school boards or legislatures and are ill-

equipped to determine the ‘necessity’ of discrete

aspects of a State's program of compulsory

education.”... However. ...we offer some

guidance on the extent to which approval of a

home school proposal may be conditioned on

certain requirements without infringing on the

liberty interests of the parents under the

Fourteenth Amendment

(Citation omitted) In other words, the Court, in

furtherance of its duty to interpret the Statute in a

manner not violative of the Massachusetts and United

States Constitutions, appears to have created a safe

harbor for schoo! committees to use in deciding what

requirements are appropriate to impose when

a cm cl a ae aa ea aa

considering’ a home school proposal.

16.If the guidelines promulgated in Charles, supra, at

337-340, are a safe harbor for a school committee, they

also appear to erect a per se standard for assessment

of educational neglect. In other words, failure to comply

with a school committee's requirements so long as

those requirements are within the safe harbor, would be

pnma facie evidence of educational neglect subjecting

the parents to an unfitness determination under the

Statute.

17. In this case, the School Committee's requirements

(Exhibit 1) are clearly within the safe harbor established

by Charles, and the Parents have failed tc provide a

minimally adequate educational plan. Therefore, under

the guidelines of Charles, the Parents are per se

“currently unfit”

18.Charles, supra, at 338, provides that once the

parents have filed a home school proposal and it has

Deen rejected by the schoo! committee,

The burden of proof underG.bL.c.1190rGLlc

76,§2, shifts to the school committee to show

that the instruction outlined in the home schoo!

proposal fails to equal “in thoroughness and

efficiency, and in the progress made therein, that

in the public schoois in the same town [sic]

(Emphasis supplied.) This guideline does place the

ultimate burden of proof on the school committee, as it

Clearly should be under both an C. 119 or G.L. c, 76.

§2; however: it does not address the Circumstance

presented by this case, in which the Parents never filed

educational plans that were formally adequate within

the guidelines set forth in Charles.’ Consequently, the

burden has never shifted under Charles; and the

Parents must be held to a per se standard neglect if

they are to be found “currently unfit,” as Charles

contemplates that they would be in these

circumstances. Suffice it to Say that placing the initia!

burden of proof upon the parent is highly unusual, if not

unique, in cases decided under the Statute,

19. In addition to their separation of powers challenge,

the Parents argue that their due process rights were

violated because the Schoo! Committee did not

establish specific and objective requirements for them

to meet in submitting educational plans for the Children

and therefore rejected the plans proffered by the

Parents without sufficient basis. First, the School

Committee did establish specific and objective

requirements the Parents to follow: the Parents simply

chose not to fulfill them, Further, the requirements

established by the School Committee were well within

the safe harbor established by Charles. Ultimately, this

argument is foreclosed by Charles, supra, at 329-333

and 337-340.

20. ‘The Parents further contend that their rights

under Article XII of the Declaration of Rights are

violated by being required to provide the information the

School Committee has requested pursuant to G.L. c.

76, §1, and Charles, supra. The issues raised by this

Article XII challenge to G.L. c.76, §1, were effectively

” The emergence of this case, was foretold in Prof Ira Lupu’s

critical commentary on Charles, which discussed the inherent

difficulties of the Court's resolution of that case. Ira C. Lupu, Home

Education, Religious Liberty, and the Separation of Powers, 67

B.U.L. Rev. 971, 980-985 (1987).

dealt with by the Supreme Judicial Court in both

Charles and Attorney General v. Bailey, 386 Mass.

367(1982) (“Bailey”), even thought, in those cases, G.L.

c.76, §1, was being challenged only under the United

States Constitution rather than under Article xi.

21. ‘Finally, the Parents ask this Court to entrust the

Children's education to them alone, with no oversight

by the School Committee, as the least restrictive means

to ensure that children are properly educated,” referring

to A S. 14.30.010. No matter what the wisdom of the

Alaska statute regarding homeschooling, is not a

Massachusetts statute and this Court Cannot choose to

impose its terms in this case in derogation of

Massachusetts Statutory and case law.

IV. Adjudication and Order

Based upon the above Findings of Fact and

Conclusions of Law, this court finds as follows upon

Clear and convincing evidence:

|. that Mother and Father are unwilling to provide for

the Children's educational care and discipline within

the meaning of Charles supra; and

* In Charles, the Court examined the constitutionality of G.L. c. 76

§1, under the Fourteenth Amendment to the United States

Constitution, inter alia: while in Bailey, the challenge had

roceeded under the First and Fourth Amendments.

That is, they are “currently unfit” to assume parental responsibility

for the Children. The case law, as set forth more particularly

Supra, requires such a finding for the court to retain jurisdiction of

the case; although in this Case, as apparently in Charles, there is

NO positive evidence of the parents: “unfitness” as that term is

commonly understood. Comparison of the facts of this case with

those of other cases decided by the Supreme Judicial Court or the

Appeals court under Sections 24 and 26 of the Statute, with the

2. that Mother and Father are unlikely to comply with

the guidelines set forth in Charles, for the

foreseeable future.

Consequently, in accordance with the mandate of

Charles, this court hereby orders as follows:

1. If the Parents intend to homeschool the Children

during the 1998-1999 school year, they shall

a) file with the Schoo1 Committee an

educational plan for each of the Children for

the 1998-1999 school year in the form they

previously utilized for the 1997-1998 school

year (specifically, the form used in Exhibit 22);

b) obtain a professional evaluation of each of the

Children's educational level and whether or

not they have reached an age appropriate

cognitive development and have acquired age

appropriate knowledge and skills, those

evaluations to be made by an independent

evaluator On the Holt Associates list

(referenced in Exhibit 28 at 8) or by an

evaluator acceptable to the School

Committee, within its sole discretion; and

C) file such educational plans and evaluations

with the School Committee on or before 8

September 1998.

2. Ifthe parents do not intend to homeschool the —

Children during the 1998-1999 school year, they

sole exception of Charles, illustrate that the facts of this case are

not those generally contemplated in the case law or in the Statute.

shall have enrolled the children, on or before 8

September 1998, in the Waltham Public Schools

Or in a private school approved by the School

Committee.

3. If the Parents have not fully complied with

Paragraphs 1 or 2 of this Order on or before 8

September 1998, temporary custody of the

Children will be transferred to the Department.

SO ORDERED.

S/ Margaret S. Fearey, Associate Justice

Dated: 31 July 1998

APPENDIX

EXHIBITS

NUMBER NAME PARTY

1 Procedures for School

Consideration of Home Dept

Schooling Requests,

Waltham Public Schools

2 Birth Certificate of Nyssa School

Gale Bryant Dept

3 Birth Certificate of George School

Nicholas Bryant Dept

4A Quitclaim Deed to 9-11 Gale School

Street, Waltham, Dept

Massachusetts, and another

parcel, running to Kim E.

Engler and George G.

Bryant, as joint tenants,

inter alia

Quitclaim Deed to 9-11

Gale Street, Waltham,

Massachusetts and another

parcel, running to Kim E.

Engler and George G.

Bryant, as tenants by the

entirety

Memorandum from Dr.

Emile Rosenberg to Kim

Engler & George Bryant,

dated November 8, 1996,

inscribed with the word

“FRAUD"

Letter from Kim E. Engler to

Mr. Daniel E. Doyle, dated

November 14, 1996

Document entitled “Part

One. Non- Statutory

Abatement,” &c.

Document entitled “Part

Two. Non-Statutory

Abatement,” &c,

Letter from Daniel E. Doyle

to Mr. George Bryant and

Ms. Kim Engler, dated

February 6,1997

Letter from George Greeley:

Bryant [sic] and Kim

Elizabeth: Engler [sic] to

Daniel E. Doyle, dated

February 12, 1997

Letter from George Greeley:

Bryant [sic] and Kim

Elizabeth: Engler [sic] to

Jeannette [sic] A. McCarthy, :

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

dated March 20, 1997 with

attachment

Letter from Jeannette A.

McCarthy to Ms. Kim E.

Engler and Mr. George G

Bryant, dated March 25.

1997, with attachment

Letter from George Greeley:

Bryant and Kim Elizabeth:

Engler to Jeannette A.

McCarthy and Dr. Emile

Rosenberg dated March 27.

1997

Document signed by Emile

Rosenberg and dated

5/12/97

Letter from Jeannette A.

McCarthy to Ms. Kim

Elizabeth: Engler and Mr.

George Greeley Bryant

dated May 13, 1997, with

attachment.

Copy of document signed

by Emile Rosenberg and

dated 5/12/97, Exhibit 14,

with holographic notations

by George Greeley: Bryant

and Kim Elizabeth: Engler

dated May 14, 1997

Letter from Dr. Emile

Rosenberg to Ms. Kim

Elizabeth Engler and

George Greeley Bryant,

dated May 15, 1997

plan for Education For [sic]

the Family of George

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

Greeley: Bryant and Kim

Elizabeth: Engler

19 Memorandum from Dr. Schoo!

Emile Rosenberg to Atty. Dept

Jeannette A. McCarthy,

dated July 7, 1997

20 Plan for Education 1997- School

1998 For the Family of Dept

Greeley: Bryant and Kim

Elizabeth; Engler

21 Memorandum from Dr. School

Emile Rosenberg to Atty. Dept

Jeannette McCarthy, dated

September 11,1997

22 Plan for Education 1997- School

1998 For the Family of Dept

Greeley: Bryant and Kim

Elizabeth; Engler

23A Grade One Curriculum School

Overview, Waltham Public Dept

Schools -

23B Grade Two Curriculum School

Overview, Waltham Public Dept

Schools

23C Grade Three Curriculum School

Overview, Waltham Public Dept

Schools

23D Grade Four Curriculum School

Overview, Waltham Public Dept

Schools

23E Grade Five Curriculum School

Overview, Waltham Public Dept

Schools

23F Grade Six Curriculum School —

Overview, Waltham Public Dept

Schools

eee ee

SS ii 9 8 aa a gm i te a a

Resp. A

Annual Progress’ Report

1996-1997 For the Family of

George Greeley: Bryant and

Kim Elizabeth: Engler [Child

George Nicholas: Bryant]

Annual Progress’ Report

1996-1997 For the Family of

George Greeley: Bryant and

Kim Elizabeth: Engler [Child

Nyssa Gale: Bryant]

Memorandum from Dr.

Emile Rosenberg to Atty.

Jeannette McCarthy, dated

September 30, 1997

Letter from George Greeley:

Bryant and Kim Elizabeth:

Engler to Dr. Emile

Rosenberg c/o Jeanette A.

McCarthy, dated October

01[sic], 1997

Report of the Independent

Investigator, Lorie D. Kram,

MA., J.D., 1.0., dated

December 3, 1997

School District Profile.

Waltham

Certified copy of A.S.

14.30.010

School

Dept

School

Dept

School

Dept

School

Dept

School

Dept

Parents

saoiuiaiaaiiilia ia

Appendix D

A CONSTITUTION

FORM OF GOVERNMENT

FOR

The Commonwealth of

Massachusetts

PREAMBLE

The end of the institution. maintenance and

administration of government is to secure the existence

of the body-politic, to protect it and to furnish the

individuals who compose it, with the power of enjoying

in safety and tranquility their natural rights, and the

blessings of life: And whenever thee great objects are

not obtained, the people have a right to alter the

government, and to take measures necessary for their

safety, prosperity and happiness. -The Body-Politic is

formed by a voluntary association of individuals: It is a

social compact, by which the whole people covenants

with each Citizen. and each Citizen with the whole

people, that all shall be governed by certain Laws for

the common good. It is the duty of the people,

therefore, in framing a Constitution of Government, to

provide for an equitable mode of making laws, as well

as for an impartial interpretation, and a_ faithful

execution of them; that every man may, at all times,

find his security in them. WE, therefore, the people of

Massachusetts, acknowledging with grateful hearts, the

goodness of the Great Legislator of the Universe, in

affording us, in the course of his Providence, an

opportunity, deliberately and peaceably, without fraud,

violence or surprize, or entering into An Onginal,

explicit, and Solemn Compact with each other; and of

forming a New Constitution of Civil Government, for

Ourselves and Posterity; and devoutly imploring His

direction in so interesting a Design. DO agree upon,

ordain and establish, the following Declaration of

Rights, and Frame of Govemment. as the

CONSTITUTION OF THE COMMONWEALTH OF

MASSACHUSETTS.

Part the First

A Declaration of the Rights

Of the Inhabitants of the

Commonwealth of Massachusetts.

Art. |. All men are born free and equal and have certain

natural, essential, and unalienable rights; among which

way be reckoned the right of enjoying and. defending

their Lives and liberties: that of acquiring, possessing,

and protecting property; in fine, that of seeking and

obtaining their safety and happiness.

ll. It is the right as well as the Duty of all men in society,

publicly, and at stated seasons to worship the

SUPREME BEING, the great Creator and preserver of

the Universe. And no Subject shall be hurt, molested,

or restrained, in his person, Liberty, or Estate, for

worshipping GOD in the manner and season most

agreeable to the Dictates of his own conscience, or for

his religious profession or sentiments: provided he doth

not Disturb the public peace, or obstruct others in their

religious Worship. -

Xll. No subject shall be held to answer for any Crimes

or Offence, until the same is fully and plainly,

substantially and formally described to him; or be

compelled to accuse, or furnish evidence against

himself. And every subject_shall have a right to produce

all proofs that may be favourable to him to meet the

witnesses against him face to face, and to be fully

heard in his defence by himself, or his council, at his

election. And no subject shall be arrested, imprisoned,

despoiled, or deprived of his property, immunities, or

privileges, put out of the protection of law, exiled, or

deprived of his life, liberty, or estate, but by the

judgment of his peers, or the law of the land. And the

legislature shall not make any law, that shall subject

any person to a capitol or infamous punishment,

excepting for the government of the army and navy,

without trial by jury.

X. Each individual of the society has a right to be

protected by it in the enjoyment of his life, Liberty and

property, according to standing Laws. He is obliged,

Consequently, to contribute his share to the expence of

this protection; to give his personal service, or an

equivalent, when necessary: But no part of the property

of any individual, can, with justice, be taken from him,

or applied to public uses, without his own consent, or

that of the representative body of the people. in fine,

the people of this Commonwealth are not controulable

by any other Laws then those to which their

Constitutional representative body have given their

consent And whenever the public exigencies require,

that the property of any individual should be

appropriated to public uses, he shall receive a

reasonable compensation therefor.

XIV. Every subject has a right to be secure from all

unreasonable searches, and seizures, of his person,

his houses, his papers, and all his possessions. All

| sieeneeeeaiiaaiil

————— a

a eer =

warrants, therefore, are contrary to this right, if the

cause or foundation of them be not previously be

supported by oath or affirmation; and if the order in the

warrant to a civil Officer, to make search in suspected

places, or to arrest one or more suspected persons, to

seize their property, be not accompanied with a special

designation of the persons or objects of search, arrest.

or seizure: and no warrant ought to be issued but in

cases, and with the formalities prescribed by the laws.

XXX. In the government of this Commonwealth, the

legislative department shall never exercise the

executive and judicial powers, or either of them: The

executive shall never exercise the legislative and

judicial powers, or either of them: The judicial shall

never exercise the legislative and executive powers, or

either of them: to the end it may be a government of

laws and not of men.-

Article Ill in pertinent parts states:

*...And the people of this Commonwealth have also a

right to, and do, invest their legislature with authority to

enjoin upon all the Subjects an attendance upon the

instructions of the public teachers aforesaid, at stated

times and seasons, if there be any on whose

instructions they can Conscienciously and conveniently

attend. --

Massachusetts G. L. 119:24.

Procedure to commit child to custody or other

disposition.

Section 24. The divisions of the juvenile court

department, upon the petition of any person alleging on

behalf of a child under the age of eighteen years within

the jurisdiction of said court that said child is without:

(a) necessary and proper physical or educational care

and discipline or; (b) is growing up under conditions or

circumstances damaging to the child's sound character

development or; (c) who lacks proper attention of

parent, guardian with care and custody, or custodian or,

(d) whose parents, guardian or custodian are unwilling,

incompetent or unavailable to provide any such care,

discipline or attention may issue a precept to bring such

child before said court, shall issue a notice to the

department, and shall issue summonses to both

parents of the child to show cause why the child should

not be committed to the custody of the department or

other appropriate order made. Said summonses shail

include notice that the court may dispense with the

consent of the parents to the adoption of the child if it

finds that the child is in need of care and protection and

that the best interests of the child would be served by

said disposition. Notice shall be by personal service

upon the parent. If the identity or whereabouts of a

parent is unknown, the petitioner shall cause notice ina

form prescribed by the court to be upon served upon

such parent by publication of said notice once in each

of three successive weeks in such newspaper as the

court orders. If after reasonable search no such parent

can be found, summons shail be issued to the child's

lawful guardian, if any, known to reside within the

commonwealth, and if not, to the person with whom

such child last resided, if known. If, after a recitation

under oath by the petitioner of the facts of the condition

of the child who is the subject of the petition, the court

is satisfied that there is reasonable cause to believe

that the child is suffering from serious abuse or neglect,

or is in immediate danger of serious abuse or neglect,

and that immediate removal of the child is necessary to

protect the child from serious abuse or neglect, the

Court may issue an emergency order transferring

custody of a child under this section to the department

or to a licensed child care agency or individual

described in clause (2) of section twenty-six. Said

transfer of custody shall be for a period not exceeding

seventy-two hours, except that upon the entry of said

order, notice shall be given to either or both parents,

guardian with care and custody, or other custodian, to

appear before said court. The court at this time shall

determine whether such temporary custody should

continue until a hearing on the merits of the petition for

care and protection is concluded before said court.

Upon the issuance of the precept and order of notice

the court shall appoint a person qualified under section

twenty-one, to make a report to the court under oath of

an investigation into conditions affecting the child. Said

report shall then be attached to the petition and be on a

part of the record. The jurisdiction of the Boston

juvenile court for the subject matter of this section shall

extend to the territorial limits of Suffolk county. Any

child may be committed to the department under this

section without a hearing or notice with the consent of

the parent or parents or guardian.

AFFIDAVIT OF PAMELA FINLEY

STATE OF ALASKA )

FIRST JUDICIAL DISTRICT ) ss

AT JUNEAU )

|, Pamela Finley, being first duly sworn, do state as

follows:

1. | am the Revisor of Statutes for the State of Alaska

2. My duties as revisor include directing.the publication

of the Alaska Statutes and retaining a copy of the

Alaska Statutes.

3. | certify that attached hereto as Exhibit 1, and

incorporated by reference herein, is a true and

correct copy of the most recent version of AS

14.30.010, as it appears in the 1997 Supplement to

the Alaska Statutes.

FURTHER YOUR AFFIANT SAYETH NAUGHT.

S/Pamela Finley

SUSCRIBED AND SWORN TO before me this 2"? day

of January, 1998.

SWen C. Ibesate

Notary Public, State of Alaska,

My commission expires 7/29/99

97-132.1mb STATE OF ALASKA

OFFCIAL SEAL

Wen C. Ibesate

NOTARY PUBLIC

ee ee ee ee

Sec. 14.30.010. When attendance compulsory. (a)

Every child between seven and 16 years of age shall

attend school at the public school in the district in which

the child resides during each school term. Every parent,

guardian or other person having the

Affidavit of Pamela Finley, Exhibit 1, Page 1 of 2

responsibility for or control of a child between seven

and 16 years of age shall maintain the child in

attendance at a public school in the district in which the

Child resides during the entire school term, except as

provided in (b) of this section.

(b) This section does not apply if a child

(1) is provided an academic education comparable to

that offered by the public schools in the area, either by

(A) attendance at a private school in which the teachers

are certificated according to

AS 14.20.020:

(B) tutoring by personnel certificated according to

AS 14.20.020: or

in compliance with AS 14.45.100 — 14.45.200 bya

religious or other private school:

(2) attends a school operated by the federal

government:

(3) has a physical or mental condition that a competent

medical authority determines will make attendance

impractical:

(4) is in the custody of a court or law enforcement

authorities;

(S) is temporarily ill or injured:

(6) has been suspended or expelled under AS

14.03.160 or suspended or denied

admittance under AS 14.30.045:

(7) resides more than two miles from either a public

school or a route on which transportation is provided by

the school authorities, except that this paragraph does

not apply if the child resides within two miles of a

federal or private school that the child is eligible and

able to attend:

(8) is excused by action of the school board of the

district at a regular meeting or by the district

Superintendent subject to approval by the school board

of the district at the next

regular meeting;

(9) has completed the 12th grade;

(10) is enrolled in

(A) astate boarding school established wider AS

14.16: or

(B) a full-time program of correspondence study

approved by the department; in those school districts

providing an approved correspondence study program,

a Student may be

enrolled either in the district correspondence program

or in the centralized correspondence study program:

(11) is equally well-served by an educational

experience approved by the school board serving the

child's educational interests despite an absence from

school, and the request for excuse is made in writing by

the child's parents or guardian and approved by the

principal or administrator of the school that the child

attends;

(12) is being educated in the child's home by a parent

or lega! guardian.

Affidavit of Pamela Finley, Exhibit 1, Page 2 of 2

Appendix E.

Commonwealth of Massachusetts

Middlesex, ss

District Court Department

Waltham Division

Juvenile Session

)

In Re: Care and Protection Of) Docket No. 9751 CP

George Nicholas Bryant ) 10

and Nyssa Gale Bryant )

)

Petition to Vacate

The Constitution of the Commonwealth's rules and

regulations govern all actions of government officers

first and foremost. "The people of this commonwealth

are not controulable by any other laws than those to

which their constitutional representative body have

given their consent.” (Massachusetts Constitution, Part

the First, Article X) "The judicial shall never exercise

the legislative and executive powers or either of them:

to the end it may be a government of laws and not of

men." (Massachusetts Constitution, Part the First,

Article XXX) "No Subject shall be held to answer for

any Crimes or offence, until the same is fully and

plainly, substantially and formally, described to him; or

be compelled to accuse or furnish evidence against

himself." (Massachusetts Constitution, Part the First.

Article XII) “And further, full power and authority are

hereby given and granted to the said General Court,

from time to time, to make, ordain, and establish. all

manner of wholesome and reasonable Orders, laws,

Statutes, and ordinances, directions and instructions,

either with penalties or without; so as the same be not

repugnant or contrary to this Constitution..."

(Massachusetts Constitution, Part the Second, Chapter

1, Section |, Article IV)

In the Court's decision "FINDINGS OF FACT AND

CONCLUSIONS OF LAW'" ("Court's Findings") actions

have been taken that are repugnant and contrary, to

the Constitution. For the reasons set forth below, the

Respondents petition the Court to vacate the Court's

decision and find the Children without need of Care and

Protection.

|. The Applicability of Charles

1. In the Court's Findings, Ill Conclusions of Law,

section 15 (exhibit A) the Court outlines the parents’

view that the standard enunciated in Care and

Protection of Charles, 399 Mass. 324 (1987)

("Charles") should not be foliowed because it violates,

inter alia, the provisions of Article XXX of the

Massachusetts Declaration of Rights. The Court states

"Whatever the merits of the Parents’ argument, this

Court declines to reach this question in the face of the

Clear language of Charles, a case which is

indistinguishable from this one." If this case is

indistinguishable from Charles, then the Court has

reached the standard enunciated in Charles, and

therefor, the Court has determined that Charles is

Constitutional. Since the Court declined to answer this

question, when it was presented, it should have been

raised to a court that would answer it, without

proceeding in this matter until the question was

answered.

ee eT ee eee em ee Ree tee

2. Alternatively, in the Court's Findings, Conclusions of

Law, section 18 the Court states "However, it [Charles]

does not address the circumstance presented by this

Case..." this being true, this case is distinguishable

from Charles and the Court must rule on the merits of

the case as she finds in III, section 12, "Indeed, but for

Charles, this case would long ago have been

dismissed."

ll. Violations of Article Xii

The Court in this matter has refused to uphold the

provisions of Article XII, Supra. This is evidenced by the

following facts:

1. On July 9th 1997 the parents appeared and

specifically asked for a copy of the petition in

accordance with Juvenile Court Rule number 2 adopted

Effective April 15, 1996. They were informed that this

rule does not apply to this proceeding, that there was

no requirement for the court to provide them with the

petition identifying what they were charged with. Nor

were the parents permitted to obtain a copy of the

affidavit in support of the petition. When the parents

asked what rules apply to the proceeding, the judge

informed them that there are no rules for this court, and

that they needed to retain an attorney to be able to

follow the court proceedings, because sometimes civil

rules of procedure were followed and sometimes

Criminal rules of procedure were followed.

2. In the Court's Findings, part | Procedural History, '

section 1 the Court states " The Petition ...alleg[ed] that

the children were in need of care and protection by

reason of being school age, not having been enrolled in

school and not having approved home-school plans on

file with the School Committee." Such finding is in

error, for we find no allegation within Mr. Doyle's

affidavit (exhibit 2) that the children are in need of care

and protection for any reason.

3. Prior to the start of the trial the Respondents

submitted to the Court a "MOTION FOR MORE

DEFINITE STATEMENT/BILL OF PARTICULARS"

(exhibit 9 without annotations) requesting that the court

direct the Waltham School Department ("Waltham") to

provide the parents with a specific charge of precisely

what they were being charged with. The Court refused

to so order and instead requested a formal statement of

position from both the Petitioner and the Respondents.

In their "FORMAL STATEMENT OF POSITION" the

Respondents again stated that "... Waltham has not

plainly substantially and formally described to us the

crime or offense they accuse them of violating and

specifically how they violated it." This plaint was never

addressed by the Court.

4. In Dr. Rosenberg's "FORMAL STATEMENT OF

POSITION", the Petitioner did not state any section of

G.L. c. 119, section 24 or indicate that the Respondents

were Charged with a violation of G.L. c. 76, section 1.

Nor did they identify precisely which or specifically how

any law of the Commonwealth was being violated.

They alleged nothing with respect to the care, discipline

or environment of the children in either this document

or within their affidavit.

5. Because Article XIl was not complied with, the

attorney for the respondents, assumed that the parents

were charged under G.L., c. 119 subsection 24 (a)

“educational neglect” since this was the charge stated

in Daniel Doyle's allegation to DSS in the 51A report.

See also Dina Sweeney testimony, Ill at page 68, and

ee oe

Court's Finding of fact, section 26.

6. The confusion over the charge is obvious in

examining Waltham's "PETITIONER, WALTHAM

SCHOOL COMMITTEE'S MOTION FOR VOLUNTARY

DISMISSAL (PARTIAL)" where they formally move for

voluntary dismissal of any and all claims except those

relating to G.L.M. Chapter 119, section 24 (d) while

Stating in their attached memorandum of fact and law

“the Waltham School Committee has never alleged

Claims of educational neglect (pursuant to Chapter 119,

Section 24 (a) or 24 (b) or 24 (c)." part | section 6. Why

would they move for voluntary dismissal of these claims

if they never alleged them? Additional evidence of the

confusion of the charge is set forth in the "PARENTS'

OPPOSITION TO WALTHAM'S MOTION FOR

VOLUNTARY PRETRIAL DISMISSAL".

7. During court testimony on day 1, Attorney Hession

asked Mr. Doyle if he has any evidence to indicate that

the parents violated G.L. c 119. section 24 parts (a) (b)

these and additionally for (d) stated "I didn't Say that,

they definitely -—-".

8. During court testimony, on Day 1 Attorney Hession

was interrupted by Attorney McCarthy who stated "!

don't know if we were being charged with violating 76-

9. The failure of the Petitioner to fully and plainly,

Substantially and formally identify the crime or offense

has made it impossible for the parents to answer to

such allegations.

10. In the Court's Findings at III-20 the Court states

his Article XII challenge, were

that the issues raised by t

effectively dealt with in both Charles and General v.

Bailey, 386 Mass.367, but neither of these cases

addressed Article XII of the Massachusetts Constitution

as the Court states in footnote 8. The First, Fourth and

Fourteenth Amendments to the United States

constitution are not identical to Part the First, Article XII

of the Massachusetts Constitution. It is not clear

whether the issues raised by this Article XII challenge

have ever, in fact, been addressed. Therefor this

finding is in error and Is not fact.

44. The Court's Findings at Part li, section 10

discusses documents marked exhibit 5. The parents

do not have access to the court's file and cannot

determine from the proceeding what is contained in

these documents. In the absence of such access, the

parents agree with the statements made by Dr.

Rosenberg "in early November he sent the typical two

page notice to the family, including a cover sheet

regarding a submission of home schooling plan, and

attachment of this particular item, .." Transcripts, day |,

page 100. If any items other than those stated herein

are found in exhibit 5, then this finding (section 10) is in

error.

12. Members of the Waltham Schoo! Department

refused to provide proof of authority in the form of oaths

of office and Law as requested by the parents and

repugnant to the requirements of the Constitution of the

Commonwealth.

13. Court's Finding of Law, Ill-5 states that the School

Committee seeks an adjudication that George and

Nyssa are children in need of care and protection under

the Statute. There is no evidence to support this.

14. The Court's findings at IIl-1 and IIl-12 are

contradictory. This case should be governed by Law,

where law is defined as an act of the General Court so

as the same be not repugnant or contrary to this

Constitution, (Part the Second, Chapter | article IV.

supra) as set forth in 1, and not by opinion as set forth

in 12.

lil. The Petitioner

1. All court documents submitted by the Attorney for the

Petitioner state the Petitioner is the Waltham School

Committee ("School Committee"). (exhibit 24) The

School Committee is made up of seven members, one

of whom is Mayor as Chairman. No member of the

school committee may, while a member thereof, hold

any other office or position in the Waltham School

Department ("Waltham"). Therefor Mr. Doyle and Dr.

Rosenberg, as "Supervisor of Attendance and Census"

and "Assistant Superintendent” respectively, are not

members of the School Committee.

2. G.L., c. 119, section 24 states that the petition may

be brought by any person.[emphasis added] however,

Attorney Snyer in her “Proposed Findings of Fact and

Conclusions of Law for Respondent Children” identifies

the Waltham School Committee as "designated agents

of the legislature of the Commonwealth of

Massachusetts...". . The Court's Finding at II-27, and

lI!-4 erroneously indicate Mr. Doyle is the Petitioner.

where all documents submitted by the Petitioner, show

the School Committee as Petitioner. A governmental

body of the Commonwealth, is not a person and has no

authority to bring any civil action against the

inhabitants. Section II-8 also shows that neither of the

children had ever matriculated in the Waltham Public

Schools, an indication that no obligation had existed or

currently exists between the Family and Waltham

regarding the children.

3. Several sections of the Court's Findings,

erroneously attribute actions of Mr. Doyle or Dr.-

Rosenberg to the School Committee. Among these

findings are the following: (a) under |. Procedural

History, sections 1 and 5; (b) under ll. Facts,

sections15, 16 (section 17 and 23 contradict section

16), 20, 24 (there is no evidence of an emergency

school committee meeting that would result in a

determination of the position stated), 28, 30 (and the

footnote referenced in 30), 33 and 36(there is no

evidence that School Committee personnel have ever

reviewed or approved any homeschooling plans) 41

(there is no evidence that the school committee ever

reviewed any material sent by the parents), (c) under Ill

Conclusions of Law, section 18.

4. These errors of facts, if corrected would show that

there is no correspondence in evidence from the

School Committee to the parents; that there is no

evidence that the parents’ correspondence was

reviewed by the School Committee, and that there is no

evidence that the parents met with the School

Committee.

5 The Petitioner, Waltham School Committee, or any

of its members, have not testified in the proceeding.

iv. P i

4. The Court's Findings at |I-38 states that the parents

view a portfolio of the Children's work as the Children’s

private property. The Court's refusal to find as fact that

the family owns the products of its endeavors, is an

error of both fact and law. This error is then used to

deny the family protection under the provisions of

Article XIV of the state constitution.

2. The Court's Findings at II-18 states that the "School

committee merely requires ..." The issue is not whether

these requests are minimally intrusive, but whether

these requirements can even be codified in the Law of

this Commonwealth. It is established in Dr.

Rosenberg's testimony that the requirement on the part

of the School Committee for grade level assignment is

not in law. The respondents, are understandably

unwilling to produce any information to the Petitioner in

the absence of law.

V. Chapter V Section I!

1. Part the Second, chapter V, section 2 (see exhibit

11) proclaims "... a duty of Legislatures and

Magistrates, in all future periods of this Commonwealth,

to cherish the interests of literature and the sciences..."

The word cherish, meant then, as it does now, "to care

for tenderly; nurture, to cling fondly or inveterately to.""

This most certainly is not the same as “assuring that

each child within its jurisdiction receives an adequate

education” Court's Findings III-3 nor is it the same as

“enforcing the schoo! attendance” Court's Findings III-3.

2. Given the words of the Constitution, we do not find a

' The Random House Dictionary of the English Language, 1983

requirement for Legislatures and Magistrates to

"assure itself, that the Children's educational needs

are being met." Court's Findings IlI-14.

3. Given the words of the Constitution, we do not find

authority to "..decide what requirements are appropriate

to impose", Court's Findings Ill-15, on families

educating their children.

4. The Court's Findings at Ill-15 states "Parents view

the School Committee's insistence on obtaining such

information as unnecessarily intrusive.” The fact that it

is unnecessarily intrusive is evidenced by exhibit A.

The people of the state of Alaska cannot have more

freedorn than the people of the commonwealth of

Massachusetts. A.S. 14.30.010 shows a codification of

encouragement and cherishing, with respect to parents

educating their own children, that is in fact codified

even more broadly in Chapter V, section II of the

Constitution of the Commonwealth of Massachusetts.

VI. Clear and Convincing Evidence

1. The Court's Findings at Ill-16 state that "...failure to

comply with a school committee's requirements. ...

would be prima facie, evidence of educational

neglect..."

2 The Court's Findings at IV. Adjudication and Order,

section 1, is that "...upon clear and convincing evidence

the parents are unwilling to provide for the Children's

educational care and discipline within the meaning of

Charles...”

3. That is, the Court finds upon clear and convincing

evidence that there is prima facie evidence of

educational neglect. This proof cannot be both prima

facie and clear and convincing, and contradicts Court's

Findings in Ill. Law, section 7 that "...all facts have been

found by clear and convincing evidence."

Vil. Decision by Inference

1. In the Court's Findings, II-41, the Court states

"Finally, the Parents presented no evidence to indicate

that the Children fell under any of the other specific

exceptions detailed in G.L. c. 76, section 1". The

Petitioner presented no evidence regarding "other

specific exceptions detailed in G.L. c. 76, section 1". In

the absence of such evidence on the part of the

Petitioner, the Court may not infer anything regarding

these exceptions. e

2. The Court's Findings II - 5, is not in evidence and

therefor not a fact. Mr. Doyle first stated "Mr. Barry had

informed me that allegedly there was a gentleman by

the name of Bryant who had two school-aged children

who were allegedly not enrolled in a school program.”

transcript p 32 During cross-examination, he clarified

this by stating "Mr. Barry, the principal at the F izgerald,

told me that he had received an anonymous phone call

alleging that a gentleman by the name of Mr. Bryant

had two school-aged children who were not attending

school" Transcript p 61-62 Thus, Mr. Barry did not

make the allegation stated in this finding, he stated that

allegedly there was a person, based on an anonymous

phone call. Thus, in violation of Massachusetts

Constitution, Part the First, Article XIV, Mr. Doyle had

no oath or affirmation to support his investigation of this

family.

3. The Court apparently relies on these findings, inter

alia, to conclude "In effect, this case is a G.L. c. 76,

section 2 case, in which the parents are no doubt guilty

of failure to send under the terms of that statute.” IlI-13.

No such conclusion may be inferred from the facts

presented in evidence. Because the Parents are not so

charged in this matter, they were not required to

respond to such charge. In fact, given that charges

under G.L. c. 76, section 2 were first changed to Civil>.

and then dismissed upon request by the

Commonwealth, in concurrence with Mr. Doyle, we

must infer that the Commonwealth had insufficient

evidence to support such complaint.

4. The Court's Findings at IIl-13 indicates that the

Court is being asked to substitute the use of G.L. c.

119. section 24 to enforce G.L. c. 76, section 1 in place

of the statutorily created mandate of the General Court

in GL. c. 76, section 2. To do so is unconstitutional,

per Part the First, Article X and Article XX of the

Massachusetts Constitution and should not lie. If the

School Committee feels that the monetary penalties

imposed for violation of G.L. c. 76, section 2 are minor,

they may petition the General Court for change.

5 The Court's Findings at II-25 states Ms. Sweeney

“was not given permission to speak with any

‘collaterals’.” Ms Sweeney did not indicate in her

testimony that she had asked the parents for

permission to speak with collaterals, and in fact

indicated that the DSS Investigator had spoken with

collaterals. The Court may not imply from this that the

parents placed any restrictions on Ms. Sweeney's

actions with respect to collaterals.

6. The Court's Findings at IlIl-14, and others, infers that

it is somehow the fault of the parents that the Petitioner

has no evidence. It is not the duty and responsibility of

this Court to violate or nullify the Constitution in an

attempt to find, establish or create evidence for the

Petitioner.

Vill. Prejudicial Findings

A number of the Court's findings are not in evidence or

contain the Court's opinions in such a manner as to be

prejudicial against the parents:

1. It is implied from the Court's Findings I-1 that the

parents ignored (or defied) a summons for a court

appearance on June 11, 1997. The parents received

no summons to appear in court on June 11, 1997. This

question was not addressed in any manner during the

trial. No evidence was presented to show service upon

the Respondents for the June 11th proceeding. This

finding is irrelevant to the proceedings and is prejudicial

to the parents when exculpatory evidence to the

contrary was ignored.

2. All members of the family are inhabitants of the

Commonwealth, not residents as stated in the Court's

Findings, II, 1 through 4. The Court's refuses to

recognize this fact enumerated in the Parent's

proposed findings. As the Parents indicated in exhibit

7, the Family does not have an address, and therefor

are not residents of Waltham. Exhibits 4a and 4b (Real

Estate deeds) are proof of property ownership and not

proof of residence.

3. The Court's Findings at II-6 concludes information

about the jurisdiction of the Waltham School

Committee. There has been no evidence presented

regarding the jurisdiction of the Waltham School

Committee so no such statement of fact is possible.

4. The Court's Findings at II-13 that the parents failed

to respond to summonses, is contradicted by its

footnote. What is more relevant to the matter at hand is

the evidence that Mr, Doyle testified that he had

obtained service and was then confronted with

evidence that no service was obtained. These facts in

the transcript, require an inference on the part of the

Court that this witness is unreliable, an inference the

Court fails to make.

5 The Parents object to the mischaracterization of Mr.

Doyle's conversation with our council as a threat. See

Court's finding at !I-14 and 17. Particularly when our

council was prohibited from being present in court

during all proceedings and has been unable to respond

to these allegations.

6. By the incorrect sequential order of facts 13 and 14

the Court's Findings imply that exhibit 7 was in

response to a summons for the Criminal Complaint. It

was not. Exhibit 7 was served upon Mr. Doyle and the

Court in response to show-cause hearing which the

Parents were not required to attend.

7. In Court Findings II- 21, the Court has evidenced

prejudice against parents by terming a serious attempt

to explain the Parents’ perspective on education

(exhibit 15) as “a simplistic and facetious apologia”.

8. In Court Findings II-22, the Court has evidenced

prejudice in favor of the Petitioner by deeming

fraudulent attempts on the part of the attorney for the

school department to deprive parents of their natural

rights (exhibit 41) as “helpful”.

9. In Court's Findings II-29. The court adopts Dr.

Rosenberg's facetious colloquialism, "interest

inventory",) in describing exhibits 24 and 25. The Court

makes no attempt to understand the progress report as

the parents have presented it or to analyze the

education provided to the children as it later does with

exhibit 22 in Court's Findings II-31. If the short hand of

the check marks were substituted at each subject by

the words of their legend, the reports would read for

example, "The child has been interested in Vocabulary

and has performed activities toward obtaining an

understanding of recognizing that words have multiple

meanings, identifying and using new words in a variety

of contexts, recognizing antonyms and synonyms, and

completing simple analogies". Such is for one subject

at one of Waltham's grade levels. Such a detailed

progress report in words would have greatly exceeded

the 20+ pages of each of the current reports and

required prohibitive effort on the part of the Parents to

type or write said words.

10. In Court's Findings I-34 "Although the school

committee rules-tequire compliance with the guidelines

set forth in Charles it is flexible in the —

application..."conflicts with the testimony presented by

Dr. Rosenberg. The Waltham School Committee allows

for no other evaluation in evidence than tests and

portfolios. While they say they permit progress reports,

Said progress report is defined to include work samples.

Work samples are portfolio material. The Waltham

School Committee is apparently not flexible enough to

accept the exigencies of the Parents' educational

philosophy.

11. The only finding of the Parents’ included in the

Court's Finding is that the Respondents are in fact the

parents of the above captioned children.

IX. The Best Inte of the Commonweal

"The end of the institution, maintenance and

administration of government is to secure the existence

of the body-politic, to protect it, and to furnish the

individuals who compose it, with the power of enjoying

in safety and tranquillity their natural rights, and the

blessing of life;:.." Preamble, A Constitution or Form of

Government for The Commonwealth of Massachusetts.

1. It is clear from a reading of transcripts and

documents in evidence (the affidavit, the Partial motion

to dismiss, the filing of the 51A, etc.) that the purpose of

this proceeding, inter alia, has been to threaten, harass,

intimidate and coerce the family to surrender their rights

enumerated in the Constitution of the Commonwealth

of Massachusetts. Compare this with the purpose of

Government stated in the Constitution, supra.

2. The decision of the Court has not been made with

law and the Constitution in mind. Instead the Court

mandates further violations of the Constitution with the

threat that "temporary custody of the Children will be

transferred to the Department" and in spite of "the fact

that the Children did not appear to be at serious risk..."

(Footnote 1, page 2)

3. Indeed the Court sets forth her true reason for

finding the children in need of care and protection in the

margin: "The case law, ... requires such a finding for the

court to retain jurisdiction of the case." page 14,

footnote 9.

X. Religious Convictions of the Parents

1. The Court's Findings IV-2 state "that Mother and

Father are unlikely to comply with the guidelines set

forth in Charles, for the foreseeable future." It is not

Clear what facts this is based upon, but perhaps it is for

the reasons et seg.

2. The parents have a deeply religious conviction to

uphold in the rules and regulations contained in the

Constitution of the Commonwealth of Massachusetts.

and the law. For reasons set forth in their

“PROPOSED FINDINGS OF FACT AND REQUESTS

FOR RULINGS OF LAW' the Parents find that the

actions of Waltham are violative of the Constitution.

3. The Parents also have a deeply religious conviction

that it is wrong for children to be subjected to testing,

grading and assessment by "education experts". This

conviction is evidenced in several exhibits, most

notably in the court investigator's report, exhibit 28, at

(a) "Family's educational philosophy" and exhibit 27.

4. Court's Findings I-37 is not in evidence and

certainly will violate the integrity of this Family's form of

education.

S. Court's Findings I!-42 is not in evidence with respect

to “learner-led " approach and will violate the integrity of

this Family's form of education.

6. Court's findings III-17 do not take into account the

Family's form of education.

7. The respondents find that the Court's order violates

both of the religious convictions, supra, unnecessarily

and unlawfully. We are now put in an untenable

position of violating our convictions, or risking harm to

the children caused by removal to the custody of DSS

or risking contempt charges.

Xi. Prayer for Relief

Because the Court's duty first and foremost is to uphold

the law and the Constitution, the Respondents pray that

this decision be vacated. If the Court does not vacate

this decision, the Parents pray that the Court suspend

the orders contained in Court's Finding pending a new

trial.

September 14, 1998, by our hands,

s/George Greeley: Bryant s/Kim Elizabeth: Bryant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.