Paula and Rick Dubois adopted their son Wyatt when he was 2 years old. Wyatt had been exposed to drugs and alcohol prenatally and he was born prematurely. In his first two years of life he allegedly was severely abused in his foster homes. Paula describes him at 2 as an angry, distrustful child who would head butt, kick and bite. He was also nonverbal, and, as his parents found out when he was almost 4, he had a severe-to-profound-hearing loss.
After a harrowing experience at North Dakota School for the Deaf, Wyatt started in grade 2 at Turtle Mountain Community School when he was 8 years old. He began learning under Marlene Shroeder, Turtle Mountain Band of Chippewa, an experienced early childhood and elementary teacher who had been going to school to get her credentials in deaf education, to teach Wyatt and other deaf and hard-of-hearing children at Turtle Mountain.
Wyatt’s parents, Monique Vondall, the family’s attorney, Turtle Mountain Band of Chippewa Indians, and Shroeder all said Wyatt began to make progress in language acquisition once he had an appropriate teacher, but he still had many educational needs his parents felt were not being met. A slew of IEP (Individualized Education Plan, another federal requirement for special needs children) meetings ensued involving Wyatt’s parents, personnel from BIE and Belcourt School District No. 7, NDSD representatives, and speech and language and other professionals who had worked with or evaluated Wyatt.
Paula said the meetings were extremely difficult for her and Rick because they were treated dismissively and because until they were able to obtain the help of a child advocate they did not know their rights. IEP meetings, said Vondall, continue to be adversarial.
The resolution settlement agreement was signed in April of 2011. Under the terms of the agreement, Wyatt was to receive services and compensatory education to ensure that he could get the most out of his cochlear implants—Wyatt received his second implant in 2010—and deal with his other issues, which ranged from suspected fetal alcohol syndrome to hyperactivity to emotional outbursts.
Under the agreement, Wyatt was to receive intensive specialized speech therapy in a clinical setting, at home and in school; receive audiology services and testing and maintenance of his cochlear implants; have a qualified hearing-impaired teacher and a one-on-one aide, receive occupational therapy and physical therapy and psychological counseling and be granted an extended school year. In addition, teachers and staff at Turtle Mountain Community School would receive training in how to teach Wyatt and the school district would look at systemic issues that contributed to the school’s failure to educate Wyatt. Finally, Wyatt would have a written and signed IEP.
The school has met some of these requirements but not all of them. For example, Wyatt has not had a one-on-one aide, nor does he receive psychological counseling and he receives only limited occupational therapy, his advocates said. Paula said school personnel refuse to learn about CI children and so keep putting Wyatt in dangerous situations, such as environments that are too hot, too noisy or have strong electrical fields. At this date, the school has not developed a current IEP for Wyatt.
In August of last year, Vondall filed a due process complaint in tribal court against Belcourt School District No. 7 on behalf of Wyatt and his parents. The complaint, which is making its way through the legal process, asks for damages to pay for Wyatt’s education and for punitive damages, alleging that the school “deliberately compromised the education of the minor child, Wyatt DuBois, by not following the agreement and by not conforming the school’s special education standards to a student that has a right to attend school under federal laws and local tribal laws.”
This type of due process complaint is one recourse available to parents who feel their special needs child is not receiving an appropriate public education. But for an American Indian family on a rural reservation, pursuing that right can be complicated.
One question is who is responsible for Wyatt not getting the services he is entitled to? Belcourt School District No. 7 said it’s the BIE; the BIE said it’s the school district, according to Vondall. Also, since the school is in a rural location, the school might successfully argue it simply could not find a deaf and hard-of-hearing teacher to hire until Shroeder, at Paula’s instigation, made herself available and went back to college to earn the credentials required by the state to teach hearing-impaired children.
Another question is jurisdiction. The Turtle Mountain Chippewa tribal council has passed Wyatt’s Law, which says tribal children can no longer be placed at the North Dakota School for the Deaf but must be educated in the local school. But the school is not under the jurisdiction of the tribe, and, as stated in the agreement, it could be to the school’s advantage to send kids to NDSD because North Dakota state law places the entire financial responsibility for educating children placed at NDSD on the state, thus relieving the local school of significant costs.
Vondall said the due process complaint is in tribal court, rather than state or federal court, because “we must exhaust our tribal remedies. That means that we have to get it heard in Tribal Court prior to filing in federal court against the Belcourt School District No. 7.” The DuBois family would also have to find the money to hire a lawyer and file a lawsuit in federal court, a process that would likely be extremely expensive.
Paula said the family has been fighting to get Wyatt the education to which he is entitled by law for more than seven years. They are worn out and are considering a move to a different location where they could more easily get the services their son needs.
The move, however, would be heart-wrenching. The Turtle Mountain Reservation is Paula and Rick’s home. It is where their friends and family are. It is where Wyatt was born. It is where Wyatt should be able to live and benefit from the support of his tribal community now and build the relationships that will sustain him in the future. But for this special needs American Indian child, the choice may be between staying on the reservation and getting the education that will help him develop to his full potential.
Rachel Bruner-Kaufman, attorney for Belcourt Public School District No. 7, responded to ICTMN’s efforts to talk with the Turtle Mountain Community School administration. She said that under the federal Family Educational Rights and Privacy Act, the district cannot talk about any student. “The district is meeting special education requirements and each situation is unique,” she said.